UNIVERSITY OF NAIROBI

SCHOOL OF LAW-KISUMU CAMPUS

GPR 209: ADMINISTRATIVE LAW
LECTURE NOTES

LESSON 6: PROCEDURE OF APPLYING FOR JUDICIAL REVIEW

Currently, it can be argued that there are three (3) avenues for applying for judicial review in
Kenya in Kenya. These are:

a) Under Article 47(1) of the Constitution of Kenya, 2010 in respect of the right to fair
administrative action.
b) Under the Fair Administrative Action Act, 2015
c) Under Order 53 of the Civil Procedure Rules, 2010 or simply under the common law

A. PROCEDURE UNDER THE CONSTITUTION OF KENYA, 2010

Article 47(1) of the Constitution of Kenya, 2010 enshrines the right to fair administrative action
(lawful, reasonable, expeditious, efficient and procedurally fair). This right falls within Chapter
4 (Bill of Rights).

Article 22 (1) of the Constitution provides that every person has the right to institute court
proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened.

Article 22 (3) of the Constitution provides that the Chief Justice shall makes rules providing for
the court proceedings under Article 22. In this regard, proceedings for enforcement of human
rights are usually instituted at the High Court through a petition accompanied by a supporting
affidavit (with relevant annexures as documentary evidence).

The applicant in a human rights petition is known as the petitioner. The applicant does not need
to have been a victim of violation of human rights since a petition may be brought on behalf of
the victim as justified by the prevailing circumstances. The alleged violator of human rights is
known as a respondent. Other persons who may be interested in the case may join the case, with
leave of the court, as interested parties or friends of the court (amicus curiae).

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The respondents and interested parties will respond to the petition through a replying affidavit
or grounds of opposition. The petitioner may file a further affidavit if need be to respond to
any new matters raised in the respondent’s replying affidavit.

Petitions are usually heard and determined through documents only, meaning that physical
witnesses are rarely allowed to testify. Once all parties have filed their documents, the court will
direct the parties to file their written submissions ahead of delivery of judgment. The judgment
may find that the petition has or lacks merit. This will imply that the sought judicial review
remedies may or may not be granted.

According to Article 23 (3) (d) of the Constitution, a court handling proceedings under Article
22 of the Constitution may grant appropriate relief including an order of judicial review.
However, seeking judicial review remedies through a constitutional petition should guard against
the principles of constitutional avoidance (temptation to unnecessarily convert every legal
dispute as a constitutional matter) and exhaustion of alternative remedies (rushing to the
constitutional court before exhausting other available lawful remedies).

B. PROCEDURE UNDER THE FAIR ADMINISTRATIVE ACTION ACT

Section 8 of the Fair Administrative Action Act, 2015 provides that an application for judicial
review shall be heard and determined within 90 days of its filing.

Section 9 of the Fair Administrative Action Act, 2015 does not have any limitation period for
filing judicial review applications. However, it provides that an application for judicial review
should be filed without unreasonable delay.

Section 10(1) of the Fair Administrative Action Act, 2015 provides that an application for
judicial review shall be heard and determined without undue regard to procedural technicalities.
This borrows from Article 159(2) (d) of the Constitution, which provides that justice should not
be administered without undue regard to procedural technicalities.

Further, Section 9(2)(3)(4) of the Fair Administrative Action Act, 2015 contemplates that a
person aggrieved by an administrative action should first (except in exceptional circumstances)
exhaust ALL other lawful remedies available to him (e.g. internal review or appeal within the
body that made the offending decision or through the ombudsman) before seeking judicial
review.

Section 10 of the Fair Administrative Action Act, 2015 empowers the Chief Justice to make
rules to regulate the procedure for applying for judicial review. As at early 2024, a team
constituted by the Chief Justice Martha Koome had made draft Fair Administrative Action Rules
which were awaiting formal adoption and gazettment. These draft rules proposed the same two-
stage process (leave and main stage) of applying for judicial review as in the Civil Procedure
Rules, 2010.

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C. PROCEDURE UNDER THE CIVIL PROCEDURE RULES, 2010 OR COMMON
LAW

Under Order 53 of the Civil Procedure Rules, 2010, the procedure of applying for judicial
review is divided into two stages:

a) Leave stage
b) Main application

I). LEAVE STAGE

Leave to institute judicial review is a mandatory stage. 1 The High Court mainly uses the leave
stage as a sieving mechanism. Leave stage helps in weeding out frivolous applications for
judicial review. For example, to apply for judicial review (at both leave and main application
stages), a person must demonstrate locus standi, that is, capacity to sue.

Previously, a restrictive test was used, that is, one had to be an aggrieved party. This meant that
you should have been directly affected by the decision or action in question. However, this
restrictive test was abandoned and today one just needs to show that they have a sufficient
interest in the matter under review. If you do not have sufficient interest in the matter, the court
will not grant you any of the orders. Further, public-spirited persons (those who seek to defend
public interest such as Okiya Omtata) have been deemed to have locus standi. The objective of
the requirement of locus standi is to lock out busy bodies or unmerited litigants.

In terms of the limitation period for seeking a certiorari, a person is required lodge his judicial
review application within six (6) months from the date the offending action arose. 2 Time
limitation is not stipulated for Mandamus or Prohibition but it is required that you file the
application within a reasonable time.

An application for leave is made to a judge in chambers, and the person whose decision or action
is being challenged does not participate at the leave stage since the application for leave is made
exparte (only the applicant is heard by the court). 3 The application for leave is made through the
following documents:

a) Chambers Summons and Supporting Affidavit. Any documentary evidence will be

annexed to the Supporting Affidavit.
b) Statement. This contains the description of the applicant, reliefs sought, and the grounds
of judicial review.
c) Verifying Affidavit. This verifies the facts relied on.4

1 Order 53 Rule 1

2 Order 53 Rule 2

3 Order 53 Rule 1(2)

4 Ibid
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During the hearing of the application for leave, the judge will not dwell too much on the merits
of the application. Instead, the judge will only determine if the application raises an arguable and
prima facie (on the face of it) case with a probability of success.

If the applicant is granted leave, then that leave may operate as a stay of the offending decision
or action that is the subject of the application for judicial review until the determination of the
application or until the judge directs otherwise.5 Stay only applies to an application for certiorari
and prohibition, not mandamus.6 However, whether leave will operate as stay will depend on the
discretion of the judge.7 The judge may choose to hear the question of leave and stay separately, 8
but case law has established that leave and stay must be heard by the same judge.

If the application for leave is successful, then the applicant will extract the order of the High
Court (including whether leave will operate as stay). This will be with a view to serving the order
upon the person whose decision or action is the subject of the judicial review proceedings.

An example of the title of an application for leave is:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISCELLANEOUS APPLICATION NO…………………………OF 2013
REPUBLIC…………………………………………………………………….…..APPLICANT
VERSUS
KENYA REVENUE AUTHORITY...................................................................RESPONDENT
FUJI MOTORS E.A. LIMITED……………………………………EXPARTE APPPLICANT

IN THE MATTER OF AN APPLICATION BY FUJI MOTORS E.A. FOR LEAVE TO

APPLY JUDICIAL REVIEW
AND
IN THE MATTER OF THE KENYA REVENUE AUTHORITY ACT, 1995

II). MAIN APPLICATION

After extracting the order made by the court at the leave stage, the applicant will prepare the
main application for judicial review in the form of Notice of Motion accompanied by a

5 Order 53 Rule 4

6 Ibid

7 Ibid

8 Ibid
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Supporting Affidavit.9 The Notice of Motion must be filed in the High Court within 21 days of
the grant of leave.10

The Notice of Motion should then be served upon the Respondent and all persons who are
directly affected by the application.11 Copies of all the documents relied on during the leave stage
such as the Statement and affidavits will also be served on the Respondent. 12 Service of the
Notice of Motion must be done at least eight clears days before the hearing date. 13 The applicant
must prepare and file in court an affidavit of service describing how the application for judicial
review was served, or not served, upon persons who should have been served. 14 The High Court
may adjourn the hearing of the Notice of Motion if it is of the opinion that service was improper
or incomplete.15

The Statement cannot be amended unless with leave of the court. 16 This is considering that
grounds or relief not contained in the Statement cannot be relied on during the hearing.17

The Respondent will respond to the application for judicial review by preparing and filing in the
High Court a Replying Affidavit on which any documentary evidence may be annexed. The
High Court may allow the parties to swear further affidavits to respond to new matters arising
from their respective affidavits.18 Parties are advised to exchange among themselves copies of
affidavits that they intend to use at the hearing.19

On the hearing date of the application, the applicant has the right to begin presentation of his
case.20 He will be followed by the Respondent and then any other party. The hearing takes place
in open court. The hearing is usually through highlighting the documents filed by the applicant,
respondent and any other party. Oral testimony, such as through witnesses, is very rare. If you
9 Order 53 Rule 3(1)

10 Ibid

11 Order 53 Rule 3(2)

12 Order53 Rule 4

13 Supra note 12

14 Order 53 Rule 3(3)

15Order 53 Rule 3(4)

16 Order 53 Rule 4(2)

17 Order 53 Rule 4(1)

18 Supra note 19

19 Order 53 Rule 4(3)

20 Order 53 Rule 5
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have any witnesses, ask them to swear and file affidavits containing their testimony. This is
because, in practice, judicial review applications are heard through filing/exchanging written
submissions.

At the end of the hearing, the High Court will deliver a judgment either allowing or dismissing
the application for judicial review. Any party aggrieved by the judgment (or denial of leave) has
a right to appeal to the Court of Appeal.21

An example of the title of a main application for judicial review is:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
JUDICIAL REVIEW APPLICATION NO…………………………OF 2013
REPUBLIC………………………………………………………………….……..APPLICANT
VERSUS
KENYA REVENUE AUTHORITY...................................................................RESPONDENT
FUJI MOTORS E.A. LIMITED………………….……………………..………...... EXPARTE

IN THE MATTER OF AN APPLICATION BY FUJI MOTORS E.A. FOR JUDICIAL

REVIEW
AND
IN THE MATTER OF THE KENYA REVENUE AUTHORITY ACT, 1995

CONCLUSION

Do we now have two systems of judicial review, one with special rules and one based just on the
FAAA? Unfortunately, the situation is somewhat confused. Applications for an order of
certiorari are still being brought and refused because more than six months has elapsed.
However, since there is no leave requirement under the FAAA or its Rules, lawyers should avoid
this issue by suing under FAAA and not the common law. However, the FAAA does not have
enabling regulations as of April 2024.

In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016]
eKLR, the Court of Appeal noted that: In this regard, there are no two systems of law regulating
administrative action - the common law and the Constitution - but only one system grounded in
the Constitution. The courts' power to statutorily review administrative action no longer flows
directly from the common law, but inter alia from the constitutionally mandated Fair
Administrative Action Act and Article 47 of the Constitution.

21 Section 8(5) of Law Reform Act, and Section 9(5) of the Fair Administrative Action Act, 2015
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