Judicial Review

Author: Lennox Angugu
So often we speak about Judicial review , but do we actually know what it is?

In judicial review application no. 1 of 2021,in the matter of the Fair Administrative Act between Peter Orengo Migiro and Samwel Omagwa James Kenya Land Disputes Tribunal ;it was described that an order of Judicial Review is one of the reliefs for violation of fundamentals rights and freedoms under Article 23(3)(f). Section 7 of the Fair Administrative Action provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to a court in accordance with section 8 or a tribunal in exercise of its jurisdiction conferred in that regard under any written law.

Judicial review was established as the court's authority to hold the government as well as the subordinate courts and bodies exercising it is the court’s way of enforcing the rule of law: ensuring that public authorities functions were undertaken according to law and that they were accountable to law.Ensuring that public bodies were not above the law.

Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom.The jurisdiction to entertain applications for judicial review remedies was vested in the High Court.The basis of judicial review in Kenya was derived from the Law Reform Act and order 53 of the Civil Procedure Rules,2010.Section 8 and 9 of the Law Reform Act provided the substantive basis while order 53 provided the procedural basis.The remedies in judicial review were certiorari, prohibition and mandamus. The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality,procedural impropriety and proportionality.

In National Social Security Limited v Sokomanja Limited (2021 eKLR) the Court observed as follows:“Judicial review as a relief is provided for in among others; Article 23 (3) of the Constitution of Kenya 2010, section 8 of the Law Reform Act Chapter 26 Laws of Kenya, section 13(7) of the Environment and Land Court Act 2011, section 7 of the Fair Administrative Action Act 2015 and the Common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution.

Ouster clauses

Ouster clauses have been defined as provisions placed in legislation whch exclude certain actions and decisions from judicial review, ostensibly in the interests of the smooth administration of justice.They operate to deny members of the public the right to have decisions reviewed by courts, in the public interest. They in effect restrict or eliminate judicial review. In Administrative Law by William Wade 7th Edtion at pg 734 it is clearly stated that ouster clauses do not prevent the court from intervening in the case of excess of jurisdiction.

Judicial Review 295 OF 2012 in the High court at Milimani; between between Hon. lady justice jeanne w. Gacheche and The Judges And Magistrate’s Vetting Board and another the learned judge stated that Article 1 of the Constituton confers sovereign power to the people of Kenya. Under Article 1(3) of the Constitution, the exercise of the people’s sovereign power is delegated to a number of State organs, including the Judiciary and independent Tribunals. Under Artice 159(1) of the Constitution, judicial authority is derived from the people of Kenya and is vested in the courts and tribunals established by or under the Constitution. Without more therefore, the jurisdiction of the High Court derives directly from the people of Kenya and the Court is enjoined to exercise that jurisdiction to the fullest extent permitted by the people under the Constitution. Such is expected of the independent Tribunals and other bodies or authorities exercising judicial or quasi-judicial function. 

Article 165(3) of the Constitution of Kenya vests upon the High Court unlimited orignal jurisdiction in civil and criminal matters; jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed; jurisdiction to hear appeals from decisions of Tribunals established to consider the removal of a person from office, save that of the President under Article 144; jurisdiction to hear any question respecting the interpretation of the Constitution; and any other jurisdiction, original or appellate, conferred upon it by legislation. Article 165(6) further vests upon the High Court jurisdiction to supervise subordinate courts and any person, body or authority exercising judicial or quasi-judicial authority. This extensive jurisdiction is only fettered to the extent set out in Article 165(5) which bars the High Court from exercisng jursdiction over matters reserved to the exclusive jurisdiction of the Supreme Court and matters fallng within the jurisdiction of the courts set out under Article 162(2) of the Constitution.

Michael Kizito Oduor & 3 others v Magistrates and Judges Vetting Board & another [2021] eKLR Civil Appeal 457, 458, 466 & 475 (Consolidated) of 2018Court of Appeal at Nairobi HM Okwengu, PO Kiage & S Ole Kantai, JJA Kiage, JA; " It was the intention of the drafters of the Constitution and the Vetting of Judges and Magistrates Act that all serving judges and magistrates as at the effective date would be vetted and their suitability to continue serving be determined in accordance with the Act. It was difficult to believe that the drafters of the Constitution intended to include magistrates in the ouster clause but failed to do so by sheer inadvertence or inattention.

The old rule or canon of interpretation expressio unius est exclusio alterius (the expression of one thing implied the exclusion of others) was applicable to the appellant's case. The fact that section 23(1) of the Sixth Schedule to the Constitution talked of a legislation that was to establish mechanisms, procedures and a time frame for the vetting of all judges and magistrates who were in office at the effective date, but section 23(2) in creating the ouster or finality clause spoke only of a removal or a process leading to the removal of “a judge” not being subject to question or review, meant that all judges and magistrates were to be vetted, but only judges were excluded from questioning a consequential removal or a process leading to such removal. The High Court was at fault in declaring that they lacked jurisdiction and failing to consider the petitions on merit."

Legitimate expectations as a ground for judicial review;

Doctrine of “Legitimate Expectation” as the name suggest is something which can be reasonably or legitimately expected by someone without having any legal rights attached thereto. Legitimate expectation is the hope or the desire of a person to obtain a favorable order, inspired by past practice or promoted by representation. Legitimate expectation gives the applicant sufficient locus standi for judicial review.

In Republic v Kenya Revenue Authority ex parte Yaya Towers Limited the court held that the remedy of judicial review is concerned with reviewing the decision-making process not the merits of the decision and reiterated the grounds for judicial review which are abuse of discretion; irrationality; Excess of jurisdiction; improper motives; failure to exercise discretion; abuse of the rules of natural justice; fettering of discretion and error of law. 

In Supreme Court in Peninnah Nadako Kilishwa v Independent Electoral Boundaries Commission & 2 others it was held that ;“The well-recognized principle in such cases, is that the court’s target in judicial review is always no more than the process which conveyed the ultimate decisions arrived at. It is not the merits of the decision, but the compliance of the decision-making process with certain established criteria of fairness. Hence an Applicant making a case for judicial Review has to show that the decision said

In Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others10 :-10 SC Petition Nos. 14, 14A, 14B & 14C of 2014.“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

In Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR) it was stated that ;arbitrary and Capricious means doing something according to one’s will or caprice and therefore conveying a notion of a tendency to abuse the possession of power. This is one of the basic standards for reviewing administrative decisions. Under the "arbitrary and capricious" standard, an administrative decision will not be disturbed unless it has no reasonable basis. When an administrator makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by a court on that ground.

There should be a clear error of judgment. An action not based upon consideration of relevant factors is arbitrary, capricious, an abuse of discretion. So is an action not in accordance with the law or if undertaken without observance of procedure required by law .Unreasonableness and irrationality are grounds for Judicial Review. Reasonableness, within the context administrative law cannot be imbued with a single court or tribunal has the power to review an administrative action if the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function.

Breach of the rules of natural justice as a ground for judicial review;
Article 47 of the Constitution provides that : 1. Every person has the right to administrative action that is expeditious, efficient lawful, reasonable and procedurally fair.

Municipal Council of Mombasa – v- Republic & Umoja Consultants Ltd Civil Appeal No.185 of 2001 where it was held:
“Judicial Review is concerned with the decision making process, not with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters….

Article 50 (1) of the Constitution provides that ‘every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court of law or, if appropriate, another independent and impartial tribunal or body’ while Section 4 of the Fair Administrative Action Act provides as follows:

1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

2. Every person has the right to be given written reasons for any administrative action that is taken against

Republic –v- National Land Commission & Another (2016)eKLR where the court stated that:
“None compliance with the Rules of Natural Justice as coded in the provisions of Article 47 (1) of the Constitution and Section 4 of the Fair Administrative Action Act No.4 of 2015 and Section 14 of the National Land Commission Act is a fertile ground for granting judicial review orders.”

Republic –v – National Land Commission Ex-parte Krystalline Salt Limited (2015)eKLR where the court held:
“Judicial review is available where a public body or tribunal has acted illegally, unreasonably or failed to comply with the rules of natural justice

Exhaustion of internal remedies before making a judicial review application under Fair Administrative Action Act 2015

Under the Fair Administrative Act , section 7 The High Court or a subordinate court under sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection(2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings undersub-section (1).(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances andon application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considerssuch exemption to be in the interest of justice.

The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR.

 The Court stated as follows:
The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution

In Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

However, in  R. V Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) , after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
"What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. "

As the Court of Appeal acknowledged in the Shikara Limited Case , the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.The High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.

Conclusion

 It is without doubt that judicial review has evolved, and continued to evolves over time. Its impact is seen and ensures the rule of law is upheld at all times.