Expanding the scope of Judicial Review – Supreme Court Perspective

Judicial review refers to the authority of the Courts to examine the actions of the legislative, executive, and various administrative arms of the government and to determine whether such actions are consistent with the Constitution.

Traditionally, judicial review was not concerned with the merits of the decision but rather the propriety of the process and procedure in arriving at the decision.

The Constitution of Kenya 2010 entrenched the importance of fair administrative action and Article 47 (1) provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47 (3) mandated parliament to enact legislation to give effect to the rights in Article 47 (1).

Consequently in 2015, Parliament enacted the Fair Administrative Action Act, 2015 (“the Act) which came into force on 17th June 2015 whose purpose was to give effect to Article 47 of the Constitution. In a complete shift from a tradition which was rigid and limited in the extent in which a Court could examine administrative actions, the Act in section 7 reveals an implicit shift of the scope judicial review to include power of the Court to inquire into some aspects of merit of administrative action.

The entrenchment of judicial review in the Constitution led to the emergence of divergent views on the scope of judicial review. One group postulate that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself while another group opine that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes.

The Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] KLR noted as follows:

“Traditionally, judicial review is not concerned with the merits of the case. However, Section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review…..The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision..”

The Supreme Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No 2 of 2019 [2020] eKLR had a different view as follows:

“[40] The petitioner approached the High Court by way of the prescribed procedures under Judicial Review, which revolve around the paths followed in decision-making. Such a course, as the appellate court properly held, is not concerned with the merits of the decision in question. The law in this regard, which falls under the umbrella of basic 'Administrative Law', is clear enough, and it is unnecessary to belabour the point.' We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the order of mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.”

Recently, the Supreme Court has clarified the conflicting approach to Judicial review. In a Judgment dated 16th June 2023 in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR), the Supreme Court has set the scope of Judicial review and the circumstances under which the scope may be expanded to include inquiry into the merits of administrative action.

In the said case of Dande & 3 others, the Supreme Court while disagreeing with the reasoning of the Court of Appeal and in complete shift from its previous decision in SGS Kenya Limited case held inter alia that:

“With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning and find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue. That is also why, the question below is pertinent to the present appeal.”

Based on the above decision of the Supreme Court, the current position can be summarized as follows:

• The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution.

• When a party approaches a court under the provisions of the Constitution, then the court ought to carry out a merit review of the case. However, if a party files suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se.

December 2023.

For more information, please contact Gregory Karungo, Paul Ogunde, Thomas Kimani or your usual contact at Walker Kontos.

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