Administrative Law and Judicial Review in Kenya: A Practical Guide | Ochieng Ogango Law

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"Understanding judicial review in Kenya — when and how to challenge government decisions, and what to expect from the process."

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What Is Administrative Law?

Administrative law governs the exercise of power by public bodies — government ministries, regulatory agencies, county governments, and statutory commissions. It ensures that these bodies act within the law, follow fair procedures, and make reasonable decisions.

When a public body exceeds its authority, ignores relevant considerations, or fails to follow due process, administrative law provides the tools to hold it accountable.

Understanding Judicial Review

Judicial review is the primary mechanism through which courts supervise the exercise of public power in Kenya. It is not an appeal on the merits of a decision — instead, it examines whether the decision was made lawfully.

Grounds for Judicial Review

Kenyan courts recognise several grounds for judicial review:

- Illegality: The public body acted beyond its powers or misinterpreted the law
- Irrationality: The decision was so unreasonable that no reasonable authority could have made it
- Procedural impropriety: The body failed to follow the required procedures, including the rules of natural justice (the right to be heard and the right to an unbiased decision-maker)
- Legitimate expectation: The body failed to honour a legitimate expectation created by its own representations or established practice
- Proportionality: The decision was disproportionate to the aim it sought to achieve

The Fair Administrative Action Act

The Fair Administrative Action Act, 2015, gives statutory effect to Article 47 of Kenya's Constitution, which guarantees the right to fair administrative action. The Act requires administrative bodies to:

- Act within their powers and for proper purposes
- Provide reasons for decisions that adversely affect a person
- Give affected persons a right to be heard before adverse decisions are made
- Act without unreasonable delay

The Judicial Review Process

Who Can Apply?

Any person with sufficient interest in the matter can apply for judicial review. This includes individuals directly affected by the decision, organisations, and — in public interest cases — even persons not directly affected.

Time Limits

Applications for judicial review must generally be filed within six months of the date of the decision being challenged. Courts have discretion to extend this period in exceptional circumstances, but delays are viewed unfavourably.

Remedies Available

Courts can grant several remedies on judicial review:

- Certiorari: An order quashing the unlawful decision
- Prohibition: An order preventing a public body from acting unlawfully
- Mandamus: An order compelling a public body to perform its legal duty
- Declaration: A statement of the legal position
- Damages: In appropriate cases, compensation for loss caused by unlawful administrative action

Practical Advice

Before Filing

- Exhaust internal remedies first — courts expect you to have used available internal complaint or appeal mechanisms before resorting to judicial review
- Gather evidence early — contemporaneous documents, correspondence, and records of the decision-making process are critical
- Act quickly — the six-month time limit runs from the date of the decision, and courts favour prompt applications

During Proceedings

- Be precise about the grounds of challenge — judicial review is not a general appeal
- Focus on process, not outcome — the court will examine how the decision was made, not whether it agrees with it
- Prepare for the possibility that the court may remit the matter back to the decision-maker for reconsideration, rather than substituting its own decision

Frequently Asked Questions

Can I challenge a county government decision through judicial review?
Yes. County government decisions are subject to judicial review on the same grounds as national government decisions. The High Court has jurisdiction over such challenges.

What is the difference between an appeal and judicial review?
An appeal examines whether the decision was correct on the merits. Judicial review examines whether the decision was made lawfully — within power, following fair procedure, and on rational grounds.

How long does a judicial review case take in Kenya?
Timelines vary. Urgent applications can be heard within days, while full hearings may take several months. The court's workload and complexity of the issues are key factors.

Do I need to send a pre-action letter before filing for judicial review?
While not always legally required, sending a pre-action letter is good practice. It gives the public body an opportunity to reconsider its decision and can be viewed favourably by the court.

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