Judicial review is the High Court’s power to examine whether a public decision was made lawfully. It is not an appeal on the merits. The court normally asks whether the decision-maker had the power, followed the required procedure, acted rationally and respected legitimate expectations, rather than whether the decision was commercially or politically wise.
What judicial review can and cannot do
The classic orders are:
- Certiorari, which quashes an unlawful decision or order.
- Prohibition, which restrains a body from acting beyond its powers.
- Mandamus, which compels a public body to perform a duty it has refused or failed to perform.
The scope of those orders was explained by the Court of Appeal in Kenya National Examination Council v Republic, ex parte GGN and others [1997] KECA 58 (KLR). The judgment remains a standard reference on the three remedies: certiorari quashes a decision already made, prohibition restrains a decision that has not yet been taken, and mandamus compels performance of a public duty that the law imposes.
Judicial review is concerned with the process and legality of a decision. It is not usually the right route for a pure contract, land, employment or debt claim, even where a public body is the other party. Those disputes normally belong in the court or tribunal with jurisdiction over the substantive claim. A constitutional petition may be appropriate where fundamental rights are engaged.
The grounds
The recognised grounds include:
- Illegality: the decision-maker acted without legal power, for an improper purpose or on a misunderstanding of the law.
- Procedural impropriety: the decision-maker failed to follow a statutory procedure, did not give a fair hearing, or breached the right to fair administrative action under Article 47 of the Constitution.
- Irrationality: the decision is one that no reasonable authority, properly directing itself, could have reached.
- Proportionality, particularly where constitutional rights are limited.
- Legitimate expectation, where a clear representation or established practice created an expectation that was defeated without a fair process.
Time limits and leave
Time is the first thing to check. Under Order 53 rule 2 of the Civil Procedure Rules, an application for certiorari or prohibition must be made within six months of the date of the decision or order, unless the court grants an extension in an appropriate case. Do not assume that every other judicial review order follows the same clock, and do not assume that a statutory appeal or review window can be ignored because judicial review is available.
Leave is normally sought first, ex parte, before the substantive motion is filed. The court may direct that notice be given to the respondent. The application must identify the decision, the grounds, the relief sought and the evidence relied on. Delay within the six-month period can still defeat the relief if it is unexplained and prejudices the respondent or third parties.
The Fair Administrative Action Act 2015 provides a statutory route for challenging administrative action and a framework for fair procedure, reasons and remedies. It does not remove the need to comply with the procedural rules, to act promptly and to identify the correct decision and decision-maker.
Some decisions have their own statutory review or appeal mechanism. Procurement, tax, immigration, licensing, planning and professional discipline decisions may have short windows and specialist tribunals. Using judicial review where a statutory appeal is the intended route can lead to dismissal on jurisdiction or exhaustion grounds. The correct route should be settled before filing.
The procedure, step by step
- Identify the decision. Obtain the written decision, letter, notice or record. Note the date, the decision-maker and the legal power relied on.
- Check jurisdiction and alternative remedies. Confirm that judicial review is available and that any statutory appeal or internal review has been considered.
- Assemble the record. Collect the application, correspondence, minutes, reports, submissions, statutory provisions and any reasons given.
- Draft the statement of facts and grounds. Tie each ground to a specific error, procedure or legal requirement.
- Apply for leave and, if granted, file the substantive notice of motion and supporting affidavit within the time allowed.
- Serve the respondent and any interested parties, and comply with directions on the hearing.
- Consider interim relief. If the decision is about to be implemented, ask whether a stay or conservatory order is needed while the case is heard.
Evidence that decides these cases
Judicial review is won or lost on the record. The court will not usually accept new evidence about the commercial merits. The useful evidence is the decision itself, the statutory power, the procedure followed, the reasons given, the material before the decision-maker and any representation made to the applicant. Affidavits should be precise, chronological and limited to what the deponent can properly prove.
Where the decision-maker has not given reasons, the absence is itself part of the record. Ask for the reasons in writing before filing, and keep the request and the response. A decision that cannot be explained is harder for a public body to defend, but the court will still expect the applicant to identify the legal error with precision.
Remedies
The court may quash the decision, restrain further action, compel performance of a duty, grant a declaration or remit the matter to the decision-maker. Damages are not the normal remedy in judicial review, although compensation may be available in a separate claim or under the Fair Administrative Action Act where the court considers it appropriate. Costs follow the event unless the court orders otherwise.
Judicial review or appeal?
Use an appeal where a statute gives a right of appeal and the complaint is about the merits or the findings of fact. Use judicial review where the complaint is about legality, procedure, jurisdiction or rationality and no adequate alternative remedy exists. Use a constitutional petition where the primary complaint is a violation of constitutional rights. The routes can overlap, but filing the wrong one can cost the client the limitation window.
Practical checklist for a Nairobi business
- Diary the date of the decision and the six-month certiorari window immediately.
- Obtain the written decision and reasons; do not rely on a verbal account.
- Identify the statute, regulation or contract that gives the decision-maker power.
- Check whether a statutory appeal, procurement review or internal remedy must be used first.
- Preserve the full record, including emails, minutes and submissions.
- Decide whether interim relief is needed before the decision is implemented.
- Take advice before the window closes; leave and substantive steps take time to prepare.
Our administrative and commercial litigation team in Nairobi advises businesses on the route, the record and the deadline. Contact the firm for a confidential assessment.
Primary sources: Constitution of Kenya 2010, Article 47; Fair Administrative Action Act 2015; Civil Procedure Act (Cap 21) and the Civil Procedure Rules, Order 53; Kenya National Examination Council v Republic, ex parte GGN and others [1997] KECA 58 (KLR); Judiciary of Kenya. This article is general information, not legal advice.
