Judicial Review

AN OUTLINE OF
JUDICIAL REVIEW
IN KENYA
2ND EDITION
AN OUTLINE OF
JUDICIAL REVIEW
IN KENYA
2ND EDITION
Dr. PLO Lumumba Ph. D
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© PLO Lumumba 2011; LawAfrica
2nd Edition 2006
First Published in 1999
ISBN 9966-7034-7-0
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TABLE OF CONTENTS
Page
Foreword .............................................................................. ix
Acknowledgement ................................................................ xi
Dedication ............................................................................ xii
Table of Statutes.................................................................... xv
Acronyms ............................................................................. xix
Table of Cases ....................................................................... xxi
Chapter One: The Meaning of Judicial Review
A. Meaning of Judicial Review ........................................ 1
B. A Brief History of Judicial Review ............................. 3
C. The Continental System ............................................. 4
D. The English System .................................................... 5
E. The Nature of the 1977/81 Changes .......................... 6
F. Judicial Review in Kenya ............................................ 8
G. Conclusion ................................................................. 9
Chapter Two: The Scope of Judicial Review
A. Introduction ............................................................... 11
B. Control of Administrative Action ................................ 14
C. Ultra Vires .................................................................... 19
D. Jurisdictional Error...................................................... 21
E. Error of Law ............................................................... 23
F. Error of Fact ............................................................... 24
G. Abuse of Power........................................................... 25
H. Relevancy and Irrelevancy .......................................... 26
I. Bias ............................................................................ 27
J. (Un)fair Hearing ......................................................... 27
K. Procedural Flaw .......................................................... 28
L. Irrationality................................................................. 29
M. Bad Faith .................................................................... 29
N. Abridgement of Fundamental Rights .......................... 29
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vi Judicial Review in Kenya
O. Exercise of Emergency Powers and

Judicial Interference .................................................... 34
P. Conclusion ................................................................. 34
Chapter Three: The Principles of Natural Justice
A. Introduction ............................................................... 35
B. Duty to Act Fairly ....................................................... 37
C. The Rule against Bias ................................................. 38
D. Right to be Heard ...................................................... 41
E. Prior Notice ............................................................... 42
F. The Opportunity to be Heard .................................... 43
G. Disclosure of Information ........................................... 44
H. Adjournment .............................................................. 45
I. Cross-examination ...................................................... 45
J. Giving Reasons........................................................... 45
K. Legal Representation .................................................. 46
L. Effect of Breaches of Natural Justice ............................ 46
M. Conclusion ................................................................. 47
Chapter Four: The Principle of Discretion
A. Introduction ............................................................... 49
B. Judicial Discretion ....................................................... 50
C. Executive Discretion ................................................... 56
D. Delegation of Authority .............................................. 57
E. Exclusion of Judicial Review ...................................... 59
F. Final Clauses ............................................................... 59
G. Exclusive Remedies for Specific Wrongs ..................... 64
H. Discretionary Enforcement ......................................... 64
I. Ultra Vires Exercise of Discretion ................................. 64
J. Non Exercise of Discretion ......................................... 65
K. Improper Exercise of Discretion .................................. 66
L. Principle of Reasonableness ........................................ 66
M. Conclusion ................................................................. 69
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Table of Contents vii
Chapter Five: Locus Standi

A. Introduction ............................................................... 71
B. Test for Locus Standi .................................................... 72
C. Scope of Locus Standi in Kenya .................................... 76
D. Public Interest Litigation ............................................. 78
E. Conclusion ................................................................. 80
Chapter Six: Estoppel
A. Introduction ............................................................... 81
B. Restriction of Estoppel ............................................... 82
C. Estoppel and Government Policy ................................ 84
D. Judicial Review and Estoppel ...................................... 84
E. Conclusion ................................................................. 85
Chapter Seven: The Modes of Enforcing Judicial
Review
A. Introduction ............................................................... 87
B. Quo Warranto as a Mode of Enforcing Review ............. 88
C. The Order of Mandamus ............................................. 89
D. Certiorari ..................................................................... 91
E. Prohibition ................................................................. 93
F. Conclusion ................................................................. 95
Chapter Eight: The Statutory Provisions under
Kenyan Law
A. Introduction ............................................................... 97
B. The Law Reform Act ................................................. 97
C. The Civil Procedure Act ............................................. 100
D. Conclusion ................................................................. 100
Chapter Nine: Recent Developments of Judicial
Review in Kenya
A. Introduction................................................................ 101
B. Legal Notice number 164 of 1992............................... 101
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viii Judicial Review in Kenya
C. Legal Notice number 5 of 1996 .................................. 105

D. Conclusion ................................................................. 108
Chapter Ten: Applying for Judicial Review
A. Introduction ............................................................... 109
B. Application for Leave .................................................. 109
C. Form of Application at the Leave Stage ....................... 112
D. Application for Orders ................................................ 122
E. Form of Application for Orders by Notice of Motion . 127
F. Proceedings on Appeal ................................................ 128
G. Form of Application on Appeal ................................... 129
H. Conclusion ................................................................. 129
Chapter Eleven: Suggestions for Reforms
A. Introduction ............................................................... 131
B. Widening the Scope of Remedies ............................... 131
C. Proposed Changes on Locus standi ............................... 134
D. Epistolary Jurisdiction ................................................. 135
E. Other Suggestions for Reform .................................... 136
F. Conclusion ................................................................. 136
Index ........................................................................... 137

FOREWORD
The importance of judicial review of administrative action to
Kenya cannot be gainsaid. Kenya faces a burgeoning administrative
structure in an environment in which “good governance” is yet to
take root fully. Fashioned specifically to check excess of and lapses
in, administrative action, judicial review is tailor-made for Kenyan
circumstances, as they exist today.
Yet, judicial review is not anything widely understood as it
should be. This is the case among the lay as among those thought
of as experts. The reason is not far to find; Kenya suffers a serious
dearth of good literature on this subject, as indeed on almost all
other subjects. Such writings as exist do not have the Kenyan reader
in mind, and so do not focus on the uniquely Kenyan. The author is
to be congratulated for daring to go first and the same time, author
now faces a daunting challenge: to produce its sequel!
Dr PLO – Lumumba has blazed a trail in writing “An Outline
of Judicial Review in Kenya.” The book is to be commended as not
only being readily accessible to the reader, but also as comprehensive
in coverage. Its author is to be congratulated for daring to go first.
Dr Lumumba combines the experiences of an academician
and a practitioner to achieve the rare feat of speaking to these two
audiences equally and effectively. Thus not only does the book
set out in a succinct way the substantive law on judicial review, it
also provides the practitioner with “ready to use” formats for the
Application for Judicial Review, drafted by none other than the
distinguished “Ukweli Mtupu, Advocates”.
This book will attract a wide readership among academics,
practitioners and students alike.
Prof Albert Mumma (PhD Cantab)

Faculty of Law, University of Nairobi
ACKNOWLEDGEMENT
I thank all those who assisted in the preparation of this book. I make
special mention of the 2nd year Law Students of 1994, 1995, 1996,
1997, 1998 and 1999 of the University of Nairobi whose pain in the
quest for reading material occasioned by the paucity of literature
moved me to write this book. My students Maurice Odhiambo
Makoloo, Dickens Mitawia, Okwe Achiando and Ms Janice Misoi
also deserve special mention for the immense background role that
they played as researchers.
Lastly, my appreciation to Mrs Lily Adega, Mrs Beatrice Mwangi
and Mr Johnson O Okil who typed and retyped several drafts of this
work.
Dr PLO Lumumba
DEDICATION
Dedicated to my best friends Celestine Aoko, Jane Adhiambo and
Mitchelle Awuor.
TABLE OF STATUTES
Administration of Justice (Miscellaneous Provisions)
Act of 1938
s7 ...................................................................................89
...................................................................................98
Advocates Act (Chapter 16)
s 13(1) ...................................................................................16
s 11(1) ...................................................................................32
Civil Procedure Act (Chapter 21)
generally ................................................................................97
.................................................................................100
s 81 .................................................................................... 3
...................................................................................24
...................................................................................58
...................................................................................97
.................................................................................102
Civil Procedure (Amendment) Rules of 1992
generally ..............................................................................102
Civil Procedure Rules
generally ..............................................................................110
Order 50, r 16 .....................................................................109
Order 53 .............................................................................8; 9
...................................................................................13
...................................................................................24
...................................................................................30
...................................................................................76
...................................................................................77
...................................................................................97
......................................................................... 100; 101
.................................................................................111
.................................................................................121
.................................................................................129
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xvi Judicial Review in Kenya
Order 53, r 1(1) ...................................................................113

Order 53, r 1(2) ...................................................................113
.................................................................................115
.................................................................................132
Order 53, r 1(3) ...................................................................112
Order 53, r 1(4) ...................................................................111
.................................................................................113
Order 53, r 2 .......................................................................... 3
.................................................................................110
.................................................................................132
Order 53, r 3(1) ...................................................................127
Constitution of Kenya
generally ................................................................................14
...................................................................................90
.................................................................................136
s3 ...................................................................................14
s 62 ............................................................................. 12; 13
s 70 .................................................................................118
s 72 ...................................................................................30
s 74 ...................................................................................30
s 77 .................................................................................118
s 77(4) .................................................................................118
s 79 ......................................................................... 116; 117
s 81 ...................................................................................30
s 84(1) ...................................................................................13
...................................................................................95
s 84(2) ...................................................................................13
s 123 ...................................................................................90
Criminal Procedure Code (Chapter 75)
generally ................................................................................98
East African Customs and Transfer Tax Management Act
of 1952
generally ................................................................................54
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Table of Statutes xvii
s 164 ...................................................................................55
Education Act (Chapter 211)
generally ................................................................................15
Electric Power Act (Chapter 314)
s 72 ...................................................................................36
Foreign Compensation Act of 1950
generally ................................................................................22
Insurance (Motor Vehicle Third Party Risk) Act
(Chapter 405)
s 10(2)(a) ...............................................................................52
Judicature Act (Chapter 8)
s 3(1) .................................................................................134
Law Reform Act (Chapter 26)
generally ................................................................................. 2
.................................................................................... 8
...................................................................................76
...................................................................................97
.................................................................................100
.................................................................................113
.................................................................................121
.................................................................................129
.................................................................................131
s8 .................................................................................... 8
...................................................................................24
...................................................................................76
...................................................................................98
......................................................................... 100; 101
.................................................................................131
s 8(5) ...................................................................................99
.................................................................................128
s9 .................................................................................... 8
...................................................................................76
...................................................................................99
PLO Lumumba
xviii Judicial Review in Kenya
.......................................................................... 100;101
.................................................................................106
.................................................................................126
.................................................................................131
s 9(1) .................................................................................106
Law Reform (Miscellaneous Provisions) Ordinance
number 48 of 1956
generally ................................................................................97
Law Reform (Miscellaneous Provisions) Ordinance
number 16 of 1960
generally ................................................................................98
Local Government Act (Chapter 265)
generally ................................................................................58
Magistrates Court Act (Chapter 10)
s 9A(1) ..................................................................................53
s 9A(2) ..................................................................................53
Municipal Corporations Act of 1882
s 191 ...................................................................................20
Penal Code (Chapter 63)
generally ................................................................................30
s 52 ......................................................................... 114; 115
.................................................................................119
.................................................................................121
.................................................................................127
s 52(2) ......................................................................... 116; 117
s 57(1) ...................................................................................30
s 57(2) ...................................................................................30
Police Appeals Act of 1927
s2 ...................................................................................20
Preservation of Public Security Act (Chapter 57)
generally ................................................................................34
Prisons Act (Chapter 90)
generally ................................................................................32
...................................................................................41
s 46(1) ...................................................................................42
s 46(2) ...................................................................................30
Registration of Business Names Act (Chapter 499)
generally ..............................................................................115
Rules of Supreme Court
Order 53 ......................................................................... 6; 7; 8
.................................................................................102
.................................................................................104
Order 53, r 1(1) ...................................................................104
Order 53, r 1(2) ...................................................................104
.................................................................................124
.................................................................................132
Order 53, r 2 .......................................................................... 7
Order 53, 2(b) ......................................................................104
Order 53, r 3 .........................................................................74
...................................................................................04
Order 53, r 3(1) ...................................................................124
Order 53, r 3(2) ...................................................................124
Order 53, r 3(3) ...................................................................124
Order 53, r 3(7) .....................................................................72
Order 53, r 6 .......................................................................104
Order 53, r 7 .......................................................................134
Order 53, r 9 .......................................................................104
Statute Law (Miscellaneous Amendments) Act
number 21 of 1966
generally ................................................................................98
Sunday Entertainment Act of 1932
s 1(1) ...................................................................................20
Supreme Court Act of 1981
generally ................................................................................89
s 31 .................................................................................... 6
.................................................................................... 8
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xx Judicial Review in Kenya
.................................................................................132
s 31(2) .................................................................................132
s 31(3) ...................................................................................72
The Kenya Post and Telecommunications Corporation Act
(Chapter 411)
generally ................................................................................79
ACRONYMS
AC ........................................................................... Appeal Cases
AG .................................................................... Attorney-General
AIR 1981 Sc 1087 ............. Indian Reports of the Supreme Court
All ER ..........................................................All England Reports
Cap .................................................................................. Chapter
Ch. ............................................................................... Chancery
EA ........................................................ East African Law Reports
EACA ............................................. East African Court of Appeal
EALR .................................................. East African Law Reports
HLR .........................................................Halsbury Law Reports
J ..........................................................................................Judge
JA ........................................................................ Judge of Appeal
KB .............................................................Kings Bench Division
KAR .................................................Kenya Appeal Cases Report
KLR .............................................................. Kenya Law Reports
KPTC ..............Kenya Post and Telecommunications Corporation
LN ............................................................................Legal Notice
LQB .........................................................Law Quarterly Bulletin
LGR ................................................. Local Government Reports
LJ Ch ......................................... Law Journal: Chancery Division
LTR .............................................................. Law Times Reports
Misc App No ......................... Miscellaneous Application Number
MR ......................................................................Master of Rolls
QB ........................................................................Queens Bench
RSC ...................................................... Rules of Supreme Court
SCC .......................................... Supreme Court of India Reports
WLR .......................................................... Weekly Law Reports
TABLE OF CASES
East Africa
A
Abeid v Badbes [1968] EA 598 .................................................21
Ambrose Otieno Weda v AG and The Principal, Kenya
School of Law miscellaneous civil case
number 5 of 1993 ............................................................105
An Application by Kamlesh Damji Pattni, Bernard
Kalove and Lionel Smith for prohibition in the
matter of The Principal Magistrate at Makadara Nairobi
High Court civil case appeal number 1296 of 1998 ..........123
C
Central Bank of Kenya v Uhuru Highway Development
Ltd and others civil appeal number 75 of 1998 ...................53
Commissioner of Co-operatives ex parte Kirinyaga Tea
Growers Cooperative Savings and Credit Society
[1999] 1 EA 245 ..............................................................111
D
Daniel Nyongesa and others v Egerton University
College civil application number 90 of 1989 ......................15
...........................................................................................90
David Oloo Onyango v AG civil appeal
number 152 of 1996 (UR) .................................................43
District Commissioner, Kiambu v R and others
ex parte Njau [1960] EA 109 .............................................. 9
.........................................................................................128
E
East African Community v Railway African Union
(Kenya) and others [1973] EA 529 ...................................128
Elizabeth Wainaina and others v The Board of Governors
of Pangani Girls’ High School miscellaneous
civil case number 818 of 1992 ............................................14
PLO Lumumba
xxiv Judicial Review in Kenya
F
Farmers’ Bus Service v Transport Licensing Appeal
Tribunal [1959] EA 779 ...................................................... 8
Fernandes v Kericho Liquor Licensing Court
[1968] EA 640 ...................................................................26
H
Harridas Chaganlal and others v Kericho Urban
District Council [1965] EA 370 .........................................33
Hellen Chronopoulos v AM Kassim Meia and others
(1954) 21 EACA 177 .........................................................68
I
Innocent Momanyi and others v Benson Bosire and
others High Court civil case number 792 of 1997 ........ 76; 77
...........................................................................................79
Isaiah Ngotho Kariuki v Attorney-General
Daily Nation, 3 February 1983 ..................................... 33; 34
J
Jaramogi Oginga Odinga and others v The Electoral
Commission of Kenya High Court civil case
number 5936 of 1992 ........................................................33
Jared Benson Kangwana v Attorney-General High Court
miscellaneous appeal number 446 of 1995 ..........................95
John Harun Mwau v Attorney-General 10 Commonwealth
Law Bulletin number 3 of 1984 .........................................33
Jubilee Insurance Co Ltd v Rex Hotel Ltd
[1973] EA 437 .................................................................133
K
Kamlesh M Danji Pattni v R miscellaneous criminal
case number 322 of 1999 ...................................................12
...........................................................................................95
Karia Co Ltd v Dhanani Office [1969] EA 392 .........................59
PLO Lumumba
Table of Cases xxv
Kenneth Stanley Njindo Matiba v The Attorney-General

High Court miscellaneous
civil case 790 of 1993 ..........................................................24
................................................................................. 105; 106
.........................................................................................126
Kenya Consumer Organization and Mike Mills v
Minister for Transport and Communications and
others miscellaneous civil appeal
number 438 of 1995 ..........................................................77
...........................................................................................79
Kenya Consumer Organization and Mike Mills v
Minister for Transport Communication and others
civil appeal number Nai 77 of 1997 ....................................77
M
Mbogo and another v Shah [1968] EA 93 .................................51
...........................................................................................53
Michael Omole Ocharo and others v The Council
for Legal Education miscellaneous application
number 917 of 1996 ..................................................... 15; 16
...........................................................................................92
Mirugi Kariuki v AG civil appeal
number 70 of 1991 .............................................................32
...........................................................................................37
...........................................................................................54
Mohammed Ahmed v R [1957] EA 523 .................................... 9
MS Suba and others v Egerton University
miscellaneous application number 157 of l996 ....................15
...........................................................................................92
Mutenda (Haji Yusufu) v Mugnyiasoka (Haji Zakaliya)
[1957] EA 390 .................................................................... 2
.........................................................................................134
PLO Lumumba
xxvi Judicial Review in Kenya
N
National Democratic Union v Attorney-General.
High Court miscellaneous application
number 145 of 1992 .........................................................103
.........................................................................................125
O
Orie Rogo Manduli v The Attorney-General
High Court miscellaneous application
number 54 of 1999 ............................................................93
P
PO Kadamas v Municipality of Kisumu
[1982-1988] 1 KAR 838 ...................................................61
Paul Imison v Attorney-General and others
miscellaneous appeal number 1604 of 2003 ......................130
.........................................................................................132
R
R v Attorney-General, Minister for Energy and Kenya
Power and Lighting Co Ltd High Court miscellaneous
case number 572 of 1994 ...................................................36
R v Chairman Electoral Commission of Kenya
miscellaneous civil case number 81 of 1999 ........................13
R v Chief Justice of Kenya and others ex parte, Lady Justice
Roselyn Naliaka Nambuye miscellaneous civil case
number 764 of 2004 .................................................... 12, 13
R v Commissioner General, Kenya Revenue Authority
ex parte Silvano Onema Owaki T/A Marenga
Filling Station civil appeal number 45 of 2000 ..................130
R v Electoral Commission of Kenya miscellaneous
appeal number 18 of 2002...................................................66
R v Kamlesh Damji Pattni and Bernard Kalove Kibera;
criminal case number 9438 of 1998 ..................................123
R v Kenya Post and Telecommunications Corporation
...........................................................................................67
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Table of Cases xxvii
...........................................................................................77
...........................................................................................79
R v Lionel John Smith criminal case
number 9605 of 1998 ......................................................123
R v Minister for Information and Broadcasting and
Ahmed Jibril ex parte East African Television
Network Rashid Ltd miscellaneous appeal
number 403 of 1998 ..........................................................77
R v The Honourable Attorney-General and others
miscellaneous civil case number 572 of 1994 ......................36
...........................................................................................62
...........................................................................................76
Raila Odinga v The Attorney-General Daily Nation,
7 March 1986 ....................................................................33
Re: An Application by Evans Maina miscellaneous case
number 7 of 1969 (Supreme Court of Kenya) ....................54
Rita Biwott v The Council for Legal Education.
High Court miscellaneous appeal
number 1122 of 1994 ........................................................16
.........................................................................................128
Rv Shampole Group Ranch Ltd and Nguruman Ltd
.........................................................................................105
S
Shah Vershi Devshi and Co Ltd v The Transport
Licensing Board [1971] EA 289 .......................................125
Sheikh Brothers Ltd v Members of Control of Hotels
Authority [1949] 23 (2) KLR ............................................54
Stanley Munga Githunguri v Republic
criminal appeal number 271 of 1985 ...................................13
...........................................................................................95
T
The Kenya National Examination Council v R ex parte
GG Njoroge and others High Court civil appeal
number 266 of 1999 ..........................................................57
PLO Lumumba
xxviii Judicial Review in Kenya
...........................................................................................90
...........................................................................................94
The Matter of the Law Society of Kenya and of
Judicial Commission of Inquiry into Tribal clashes
in Kenya High Court miscellaneous application
number 141 of 1998 ..........................................................93
The Municipal Board of Mombasa v Mohanlal Kala
and another (1955) 22 EACA 319 ......................................59
Tumaini v R [1972] EA 24 .......................................................26
U
Uhuru Highway Development Ltd v Central Bank
of Kenya and others civil appeal number 126 of 1995 .........53
W
Wangari Maathai v The Kenya Media Trust
High Court civil case number 5403 of 1989 ............76; 77; 78
Wanyiri Kihoro v The Attorney-General civil appeal
number 151 of 1988 ..........................................................30
Wilson Osolo v John Ojiambo Ochola and the
Attorney-General civil appeal number 6 of 1995 ..............128
Others
Aerial v Milkman [1993] 2 AC 237 ............................................ 6
Alligham v Minister for Agriculture,
Fisheries and Food [1948] All ER 780 ................................58
Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147 ................................................................22
Associated Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223 ............................................20
...........................................................................................29
...........................................................................................65
...........................................................................................68
Attorney-General v Ryan [1980] AC 718 .................................37
...........................................................................................46
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Table of Cases xxix
Attorney-General, ex parte Mcwhirter v Independent

Broadcasting Authority [1973] QB 629 ..............................65
Berkshire Knitting Mills v National Labour Relations
Board 121, F 2d 235 (3d cir 1941) ......................................41
Bernard v National Dock Labour Board [1953] 2 QB 16 ..........59
Board of Education v Rice [1911] AC 179 ................................43
Brooks and Burton Ltd v Secretary of State for the
Environment [1977] 1 WLR 1294; [1976] 75 LGR 285 .....82
Bushel v Secretary of State for the Environment
[1980] 2 All ER 608............................................................36
Calvin v Carr [1980] AC 574; [1979] 2 All ER 440 ...................46
Chief Constable of the North Wales Police v Evans
[1982] 1 WLR 1155 ..........................................................11
Cocks v Thanet District Council [1983] 2 AC 286 ..................... 7
Congreve v Home Office [1976] 1 All ER 697;
[1976] QB 629 ..................................................................61
Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374 ..............................................18
Cozens v Brutus [1973] AC 854 ...............................................23
Davenport v R [1887] 3 AC 115; 37 LT 727 .............................82
Davy v Spelthorne BC [1983] 3 All ER 1124;
[1984] AC 262 ...................................................................98
Eisler v United States 170 F 2d 273 (DC Cir 1948);
Cert dism 338US 883 ........................................................40
Fairmount Investments Ltd v Secretary for the
Environment [1976] 2 All ER 865; [1976] 1 WLR 1255 .....42
Glynn v Keele University [1971] 1 WLR 487 ...........................42
Hanson v Church Commissioners for England
[1978] QB 823 ..................................................................43
Heywood v Hull Prison Board of Visitors
[1980] 3 All ER 594 ........................................................105
Hoffman-La Roche and Co and Attornye-General v
Secretary for Trade and Industry [1975] AC 295 .................44
Jeffs v New Zealand Dairy Production and Marketing
Board [1966] 3 All ER 863; [1967] 1 AC 551 .....................43
Kanda v The Government of Malaya [1962] AC 322 .................45
PLO Lumumba
xxx Judicial Review in Kenya
Lane v Norman [1891] 66 LTR 83 ...........................................58

Lever Finance Ltd v Westminster City London
Borough Council [1971] 1 QB 222 ............................. 82; 83
Liverpool Borough Bank v Turner [1861] 30 LJ Ch 379 ..........106
Liversidge v Anderson [1942] AC 206 .......................................62
Local Government Board v Arlidge [1915] AC 120 ...................44
MC Mehta v Union of India AIR 1987 SC 1087.....................135
Metropolitan Properties (FGC) Ltd v Lannon
[1969] 1 QB 577; [1968] 3 All ER 304 ..............................27
...........................................................................................39
Middlesex County Valuation Committee v West Middlesex
Assessment Area Committee [1937] Ch 361 .......................58
Miller v Minister for Housing and Local Government
[1968] 2 All ER 633; [1968] 1 WLR 992 ...........................44
Mohanlal Sharma v UP (1989) 12 SCC 609 ...........................135
Neill v North Antrim Magistrate’s Court
[1992] 1 WLR 1220 ..........................................................28
O’Reilly v Mackman [1983] 2 AC 237 .....................................98
Padfield v Minister for Agriculture, Fisheries and Food
[1968] AC 997 ...................................................................46
...........................................................................................63
Priddle v Fisher and Sons [1968] 1 WLR 1478 .........................45
R v Criminal Injuries Compensation Board, ex parte Lain
[1967] 2 QB 864 ...............................................................17
R v Ealing London Borough Council ex parte
Times Newspaper Ltd [1986] 85 LGR 316;
[1986] 1 All ER 13 ............................................................29
R v Gough [1993] AC 646 .......................................................27
R v Greater London Council ex parte Blackburn
[1976] 1 WLR 550 ............................................................93
R v Hendon Rural District Council ex parte Chorley
[1933] 2 KB 696 ................................................................39
R v Inland Revenue Commissioners, ex parte National
Federation of Self-employed and Small
Business Ltd [1982] AC 617 .............................................6; 7
PLO Lumumba
Table of Cases xxxi
...........................................................................................73
R v Inland Revenue Commissioners, ex parte
Rossminister [1980] AC 952 ................................................ 7
R v Inspectorate of Pollution and another, ex parte
Greene Peace Ltd [1994] 1 WLR 570;
[1994] All ER 329 .............................................................73
R v Liverpool Corporation ex parte Liverpool
Taxi Fleet Operator’s Association
[1972] 2 All ER 589; [1972] 2 AC 299 ...............................37
R v London Borough of Hackney ex parte
Decordova [1985] 27 HLR ................................................44
R v Medical Appeal Tribunal ex parte Gilmore
[1957] 1 QB 574 ...............................................................59
R v Medical Appeal Tribunal ex parte Gilmore
[1957] 1 QB 574; [1967] 1 All ER 796................................59
R v Metropolitan Borough of Knowlsbery ex parte
Maguire [1992] COD 499 ...............................................134
R v Northumberland Compensation Appeal
Tribunal ex parte Shaw [1951] 1 KB 711 ...........................23
R v Oxford City JJ ex parte Berry [1988] QB 507;
[1987] 1 All ER 1244 ........................................................28
R v Panel on Take-Overs and Mergers ex parte Datafin
[1987] 1 All ER 564; [1987] QB 815 ..................................37
R v Paulson [1921] AC 271 ......................................................82
R v Peplar Borough Council ex parte London County
Council (number 2) [1922] 1 KB 95 ..................................90
R v Secretary of State for Employment ex parte Equal
Opportunities Commission [1995] 1 AC 1 .........................73
R v Secretary of State for Foreign Affairs ex parte World
Development Movement Ltd [1995] 1 All ER 611 ....... 74; 75
R v Secretary of State for Trade and Industry
[1989] 1 WLR 5225 ..........................................................68
R v Uxbridge Justice ex parte Heward-Mills
[1983] 1 WLR 56 ..............................................................44
Re Murchison 349U S133, 136 ................................................40
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xxxii Judicial Review in Kenya
Re Poyser and Mills Arbitration [1963] All ER 612;

[1964] 2 QB 467 ...............................................................67
Rex v Electricity Commissioners ex parte London
Electricity Joint Committee Co Ltd [1924] 1 KB 171 ........93
Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66...................57
Roberts v Hopwood [1952] AC 578 .........................................63
Roy v Kensington and Chelsea and Westminster Family
Practitioner Committee [1992] 1 AC 624 ........................... 6
Schmidt v Home Secretary [1968] 3 All ER 795;
[1969] 2 Ch 149, 170 .........................................................38
Secretary of State for Education and Science v
Tameside Metropolitan Borough Council
[1977] AC 1014 .................................................................26
...........................................................................................62
............................................................................................ 8
Smith v East Elloe Rural District Council
[1956] 1 All ER 855; [1956] AC 736 ..................................60
Western Fish Products Ltd v Penwith District Council
[1978] 77 LGR 185; [1981] 2 All ER 204 ..........................83
CHAPTER ONE
THE MEANING OF JUDICIAL REVIEW
SYNOPSIS
A. Meaning of Judicial Review
B. History of Judicial Review
C. The Continental System
D. The English System
E. The Nature of the 1977/81 Changes
F. Judicial Review in Kenya
G. Conclusion
A. MEANING OF JUDICIAL REVIEW

Administrative excesses must be checked through judicial
intervention. Administrative law relates to decisions of officers or
organs of Central Government or Public Authorities which may
affect the rights or liberties of the citizens and which are enforceable
in or recognised by the courts of law.1 Judicial Review is an integral
component of administrative law.
The statutory orders of mandamus, prohibition and certiorari
are remedies granted by the High Court to persons injured by the
exercise of administrative or judicial power. Their origins lie in the
expansion of the common law in England and of the jurisdiction
of the Court of King’s Bench to acquire superintendence over the
observance of law by officials.
These orders are predicated upon the fact that without law,
society cannot function with fundamental values such as social
order, social justice, and personal freedom. Today, public authorities
determine to an overwhelming extent how much of these values are
enjoyed. Their decisions affect vast numbers of people collectively
1 Lord Diplock “Judicial Control of the Administrative Process”. Current Legal Problems
1971 at 1.
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2 Judicial Review in Kenya
and individually; ipso facto unlawful decisions, must be amenable to

Judicial scrutiny, hence Judicial Review.2
The social need for law and the protection of legality is
vindicated when a public official exceeds his authority, or acts
without any authority, or does not use his power in the prescribed
manner. Certiorari and prohibition issue to correct or to arrest such
a situation. When a public official refuses to act in the manner
prescribed by law, the value is similarly threatened, and “mandamus”
issues to compel performance. The unlawful deprivation of liberty
invites the order of habeas corpus.
Certiorari derives from the Latin word certiorari, which means to
be certified, informed, appraised or shown. Both in its embryonic
days and today, the order, initially prerogative writ,3 was addressed to
inferior courts and required the proceedings of that court to be
transferred into a higher court and examined for validity.
Prohibition issues to prohibit the assumption of unlawful
jurisdiction or excess of jurisdiction; its function is to prohibit
encroachment into jurisdiction and further to prevent the
implementation of Orders issued when there is lack of jurisdiction.
Mandamus, which is derived from the Latin word “mandare”
meaning to command, is issued in cases where there is a duty of
a public or a quasi-public nature, or a duty imposed by statute; it
compels the fulfilment of a duty where there is lethargy on the part
of a body or officer concerned.
Although mandamus, prohibition and certiorari remain the
tools of Judicial Review, social values are not protected by these
statutory orders alone. Other remedies are also available to an
injured party either alongside, as alternatives to, or in substitution of
these orders. Some of these are an action for mandamus,4 declaratory
suit, constitutional supervision by the High Court and an action
for damages.
2 Nowrojee, P “Mandamus, Prohibition and Certiorari, Practice, Procedure and Values”

The Nairobi Law Monthly. November/December 1987 at 13.
3 See, E Jenks: “The Prerogative writs in English Law” (1923) 32 Yale Law Journal 523.
4 In addition to the order for mandamus under the Law Reform Act (Chapter 26) Laws
of Kenya it is also possible to file an action for mandamus, as relief in a usual civil suit
commenced by plaint. See Mutenda v Mugnyiasoka [1957] EA 390.
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The Meaning of Judicial Review 3
In a nutshell, Judicial Review is the means by which High

Court Judges scrutinise public law functions intervening as a matter
of discretion to quash, prevent, require, and/or clarify not because
they disagree with the judgment, but so as to right a recognisable
public law wrong. This public law wrong could be unlawfulness,
unreasonableness or unfairness.
In an application for Judicial Review the applicant must be
a person with a sufficient interest (locus standi), and who must
commence proceedings promptly. For instance, if the order sought
is certiorari, an applicant must commence proceedings within
six months of any judgment, order, decree, conviction or other
proceeding which is the subject of Judicial Review.5
B. A BRIEF HISTORY OF JUDICIAL REVIEW

Judicial Review is the central feature of administrative public law.
It represents the judiciary seizing the constitutional responsibility
of curbing abuse of executive power. It is a special supervisory
jurisdiction, which the courts approach in a special way. It is not
enough that the court may disagree with what a public body has
done; what must be shown is some recognisable “public law wrong”.6
In the past, where administrators made decisions injurious to
the citizenry, the existing remedy of injunction was inadequate
to deal with injuries occasioned by administrative excesses. There
are two illustrations of contrasting categories of administrative
decisions: one made by a Minister or officer of a government
department which is an interested party to the decision and the
other made by an independent administrative tribunal generally.
5 Order LIII (53), rule 2 of the Civil Procedure Rules made by the Rules Committee
established under section 81 of the Civil Procedure Act (Chapter 21) Laws of Kenya.
6 It is a feature of the English conception of the separation of powers that Parliament,
the executive and the courts have each their distinct and largely exclusive domain.
Parliament has a legally unchallengeable right to make whatever laws it thinks fit.The
executive carries on the administration of the country in accordance with the powers
conferred on it by law. The courts interpret the laws, and see that they are obeyed.
This requires the courts on occasion to step into the territory which belongs to the
executive, to verify not only that the powers asserted accord with the substantive
law created by Parliament but also that the manner in which they are exercised
conforms to the standards of fairness which parliament must have intended. See also
Michael Fordham, Judicial Review Handbook (2 ed) John Wiley and Sons Limited,
Chichester, 1997.
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Within the latter category there are administrative tribunals whose

decisions affect rights and duties between private citizens on the one
hand and a public citizen on the other hand. In some of these the
government may have a financial interest, as in the case of decisions
of Industrial Tribunals on claims to redundancy payments, to which
a contribution is made from public funds. But there are others, such
as decisions by Rent Tribunals, which affect no one but the private
citizens who are parties to the dispute. These are not different in
character from decisions made by a subordinate court as to the
terms of a new lease of business premises. Their only difference is
that one is made by an administrative tribunal, the other by a court
of law. The only public interest in each is that justice should be
done between the private citizens who are parties to a dispute in
which they are compelled by law to submit to a particular tribunal
not chosen by themselves.
Forums domesticum with internal rules and regulations also
existed. When one accepted to be a member of such a forum, for
instance, a club or church, one had to submit to the rules relating
to membership, meetings, punishments and expulsions. The bodies
attempted to immunize themselves from judicial scrutiny through
finality clauses. However, in time, this necessitated judicial inquiry
through “certiorari”.
C. THE CONTINENTAL SYSTEM

In France, Italy, West Germany (now the Federal Republic of
Germany) and a number of other countries there is a separate
system of administrative courts which deal with administrative cases
exclusively. As a natural consequence, administrative law develops
on its own independent lines, and is not enmeshed with ordinary
private law as it is in the Anglo-American system. Indeed, it is for
this reason that the development of Judicial Review in continental
Europe, in particular, has been more rapid and historically, is older
than in the Anglo-American system.
In France droit administrative is a highly specialized science,
administered by the judicial wing of the counseil d’etat, which is
staffed by judges of professional expertise, and by a network of local
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tribunals of first instance.7 One must acknowledge the value of the

expertise in administrative matters that has been accumulated by
the French counseil d’etat over the years. Courts of this kind whose
work is confined to administrative law, may have a clearer view of
the developments needed to keep pace with the powers of the state
than have courts which are maids of work.8
Nevertheless, the French system is not without its disadvantages.
Its remedies are narrow in scope and not always effective, and the
division of jurisdiction between civil and administrative courts is the
subject of rules of great intricacy and little logic.9 For example, If the
court of general jurisdiction retained jurisdiction to determine the
preliminary issue as to whether the allegedly tortious act was justified
by the relevant legislation, there would be concurrent jurisdiction in
it and in the administrative court to interpret legislation under which
administrative action was taken with room for conflict between the
interpretation put upon it by each court.10
Although the structure of the courts is different, many of the
cases that come before the counseil d’etat are easily recognisable
as the counterparts of familiar English situations. These include
review of administrative findings, determination of law, abuse of
discretion, and ultra vires. There is also the familiarity that both
English and French systems are contained in case-law rather than
in any statutory code.
D. THE ENGLISH SYSTEM

Administrative law in England has a long history, but the subject in
its modern form did not begin to emerge until the second half of
the seventeenth century. A considerable number of its basic rules
can be dated back to that period, and some, such as the principles of
natural justice, are even older.
7 For an account in English see Brown and Gamer, French Administrative Law (2 ed)
London Butterworths, 1973.
8 Wade, HWR, Administrative Law (5 ed) London, Oxford University Press, 1982 at 14.
9 Ibid.
10 Supra, note 1 5.
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Judicial Review has always been treated as an arm of

administrative law and this has necessarily been so because Judicial
Review is meant to keep administrative excesses in check.
E. THE NATURE OF THE 1977/81 CHANGES

Judicial Review developed from the ancient prerogative writs.11
All writs are in form of commands issuing in the name of the
crown, but only writs that were conceived as standing in a special
relationship with the crown came to be regarded as Prerogative
Writs.12
The modern, unified process is regulated by Order 53 of the
Rules of Supreme Court (introduced in 1977), and section 31 of
the Supreme Court Act of 1981, though there is still room for the
courts’ inherent jurisdiction. The 1977/81 regime was seen:
(a) to have removed old technicalities and disadvantages which
faced the (would-be) applicant; but
(b) to have retained important safeguards protecting the
(would not be) respondent.13
This dual insight formed the platform for the exclusivity rule.14 As
Lord Diplock observed:
“the main purpose of the new Order 53 was to sweep away the old
procedural differences including, in particular, differences as to locus
standi; to substitute for them a single simplified procedure for obtaining
all forms of relief, and to leave the court a wide discretion as to what
interlocutory directions, including orders for discovery, were appropriate
to the particular case.”15
11 Diplock observed: Mandamus, Prohibition and Certiorari are, still often referred to as
prerogative writs, though they are no longer writs, but orders, and no longer granted in
the exercise of any prerogative, but in pursuance of statutory authority.
12 SA de Smith, Judicial Review of Administrative Action (3 ed) London, Stevens at 507.
13 Michael Fordham. Judicial Review Handbook. (2 ed) John Wiley Sons Limited
Chichester, 1997 at 53.
14 As a general rule (with liberal exceptions) Judicial Review is the exclusive procedure
for public law challenges. Aerial v Milkman [1983] 2 AC 237; Roy v -Kensington and
Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624.
15 R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and
Small Business Limited [1982] AC 617 at 638E-F.
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The procedural disadvantages under which applicants for this remedy

laboured remained substantially unchanged until the alteration of
Order 53 in 1977. Foremost among these was the absence of any
provision for discovery. Another handicap under which an applicant
for a prerogative order under Order 53 formerly laboured under
was that a claim for damages for breach of a right in private law of
the applicant resulting from an invalid decision of a public authority
could not be made in an application under Order 53. Declarations
or injunctions were obtainable only in actions began by writs or
originating summons.
The safeguards built into the Order 53 procedure which
prevents public authorities on whom Parliament has imposed a duty
from making public law decisions from harassment include:
“the requirement of a prior application for leave to be supported by
candid affidavits verifying the facts relied on is an important safeguard
against groundless and unmeritorious claims that a particular decision
is a nullity ... further ... the requirement that leave to apply for certiorari
to quash a decision must be made within a limited period after the
impugned decision was made.”16
The adoption of the new procedural regime in 1977 was said neither
to have extended nor diminished substantive law. In the words of
Lord Scarman:
“The application for Judicial Review is a recent procedural innovation
in our law. It is governed by Rules of Supreme Court, Order 53, rule
2 which was introduced in 1977. The law made no alteration to the
substantive law; nor did it introduce any new remedy.”17
However, the 1977/81 regime saw some procedural changes. The
first relates to exclusivity. Since exclusivity is a procedural rule, it
could attach to the 1977 Rule changes, prior to statutory backing.
The second change regards liberal standing.The nature of this change
is illustrated in relation to declaratory relief in the case of R v Inland
Revenue Commissioners ex parte Nation Federation of Self-Employed and
Small Businesses Limited18 where Lord Scarman observed:
16 Per Lord Bridge, Cocks v Thanet District Council [1983] 2 AC 286 at 294F.
17 R v Inland Revenue Commissioners ex parte Rossminster [1980] AC 952 at 1025E.
18 [1982] AC 617 at 649.
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“Before the introduction of the new Order 53 … a declaration could not

be obtained by a private citizen unless he could show (as in a claim for
an injunction) that a private right of his was threatened or infringed. The
new order has made the remedy available as an alternative, or an addition,
to a prerogative order. Its availability has, therefore, been extended, but
only in the field of public law where a prerogative order may be granted.”
The changes made in the procedure introduced in 1977 by Rules
of Supreme Court Order 53 for Judicial Review were first given
statutory authority by primary legislation in section 31 of the
Supreme Court Act of 1981. Thus the purpose of section 31 is to
regulate procedure in relation to Judicial Review, and not to extend
the jurisdiction of the court.
The procedure outlined in the foregoing paragraphs remain to
date the avenue for seeking redress in the realm of Judicial Review
under English Law.
F. JUDICIAL REVIEW IN KENYA

In Kenya, Order 53 of the Civil Procedure Rules governs the
procedure for applications of prerogative orders. The prerogative
orders that are issued under Order 53 are mandamus, prohibition and
certiorari.
The statutory authority for the orders of mandamus, prohibition
and certiorari is the Law Reform Act.19 The relevant sections of the
Act (which is a composite Act also dealing with other unrelated
matters), are sections 8 and 9.
The Law Reform Act does not set out the forms of the
proceedings under which these orders are sought. Order 53 of the
Civil Procedure Rules which regulates the procedure for applications
for these orders is likewise silent and there are no forms prescribed
by it which are to be found in the Appendices of Forms that follow
the Civil Procedure Rules. However, the Court of Appeal has ruled
specifically on the matter of form20. In Farmers Bus Service v Transport
Licensing Appeals Tribunal, the court said:
19 Chapter 26, of the Laws of Kenya.

20 Farmers Bus Service v Transport Licensing Appeals Tribunal [1959] EA 779; Mohamed
Ahmed v R [1957] EA 523.
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“There is no material difference between the rules relating to prerogative

writs in force in Uganda and those in force in Kenya. The ruling in
Mohamed Ahmed case therefore applies in Kenya.”21
In the Mohamed Ahmed case the principles governing the form to be
used were set out by Sir Newham Worley as follows:
“This recital reveals a series of muddles and errors which is not unique in
Uganda and is attributable to laxity in practitioners offices and in some
registries of the High Court. The appellant’s advocate appears to have
failed entirely to realise that prerogative orders, like the old prerogative
writs, are issued in the name of the crown at the instance of the applicant
and are directed to the person or persons who are to comply therewith.
Applications for such orders must be instituted and served accordingly.The
crown cannot be both applicant and respondent in the same matter.”22
An application for leave to commence Judicial Review proceedings
should be made by chamber summons to a judge in chambers. This
is consistent with requirement of ex parte applications in chambers.23
Once leave to apply has been obtained the substantive
application is governed by Order 53, rules 3 to 7. The application at
this second stage is made by notice of motion to the High Court.
The proceedings at this stage are inter partes and service of the notice
of motion must be made on all persons directly affected.24
G. CONCLUSION
In general, Judicial Review will lie against anybody charged with the
performance of a public duty. With time, however, there have been
developments that have brought even domestic tribunals within the
ambit of Judicial Review.
It is also important to note one aspect of Judicial Review in
Kenya that emerges from the foregoing discussion; that the English
heritage of Kenyan law on Judicial Review still has a major impact
which must always be taken into account.
21 Ibid at 780.
22 Mohammed Ahmed v R [1957] EA 523 at 524i.
23 See District Commissioner, Kiambu v R ex parte Njau [1960] EA 109 at 114R.
24 Order 53, rule 3(1). The mode of seeking the prerogative orders is dealt with in
Chapter Ten.
CHAPTER TWO
THE SCOPE OF JUDICIAL REVIEW
SYNOPSIS
A. Introduction
B. Control of Administrative Action
C. Ultra vires
D. Jurisdictional Error
E. Error of Law
E Error of Fact
G. Abuse of Power
H. Relevancy and Irrelevancy
I. Bias
J. Unfair Hearing
K Procedural Flaw
L. Irrationality
M. Bad Faith
N. Abridgement of Fundamental Rights
O. Exercise of Emergency Powers and Judicial interference
P. Conclusion
A. INTRODUCTION
In order to understand the scope of Judicial Review, it is important
to distinguish it from other remedies available to aggrieved persons,
principally, appeals to higher Tribunals.
Judicial Review, is not an appeal from a decision, but a review of
the manner in which the decision was made’ this was the dictum of
Lord Brightman in Chief Constable of the North Wales Police v Evans.1
In the same case, Lord Hailsman of St Marylebourne said that the
purpose of Judicial Review is to ensure that an individual is given
1 [1982] 1 WLR 1155.
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fair treatment by a wide range of authorities, whether judicial, quasi-

judicial or administrative, to which the individual has been subject. It
is no part of that purpose to substitute the opinion of the judiciary
or of individual judges, for that of the authority constituted by law
to decide the matters in question. In R v Chief Justice of Kenya and
others ex parte Lady Justice Roselyn Naliaka Nambuye2, the applicant
challenged a decision of a tribunal on merits. The Court held
inter alia:
“This cannot be a cause of action under Judicial Review because the
Judicial Review jurisdiction does not avail to attack a decision given
on merit by a tribunal. The remedy lies on appeal. The Court while
exercising its Judicial Review jurisdiction does not sit on appeal …”
Unlike Judicial Review, appeal concerns itself with the merits of a
decision. When a matter goes on appeal, the major consideration
that will govern the appellate court on whether to confirm or to
disturb a decision is whether the decision in question is right or
wrong on the basis of the law and the facts. Judicial Review on the
other hand concerns itself with the legality of the decision, and the
guiding principle in quashing a decision, is whether that decision is
lawful or unlawful.
Another major attribute of Appeal is that it is granted by Statute,
that is, unless a Statute expressly allows appeal, an aggrieved party
cannot lodge an appeal against a decision. Conversely, in matters
which are reviewable, the court exercises inherent powers, which
gives it authority to review unlawful decisions.
An important distinction exists between Judicial Review
and constitutional applications and references for enforcement of
fundamental rights and constitutional duties.The Courts at one time
took the view that Judicial Review orders could issue in respect of
constitutional applications under section 84(1) of the Constitution,
as the High Court noted in Kamlesh M Damji Pattni v R.3 The
Court stated that:
2 Miscellaneous civil case number 764 of 2004. In this case the applicant, a judge, filed
a Judicial Review application to challenge the competence of a Tribunal appointed
under section 62 of the Kenyan Constitution to consider the question of her removal
from office. She alleged breach of her constitutional rights.
3 Miscellaneous criminal case number 322 of 1999.
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The Scope of Judicial Review 13
“… Section 84(2) gives High Court power to issue writs among other
orders. Whether the writs include the former prerogative writs (now
orders) including the writ of prohibition is best left for consideration of
the Court later, if the question arises. We further observe in passing that
there is already a precedent in Stanley Munga Githunguri v R, High Court
criminal application number 271 of 1985 where an order prohibition
was issued under section 84(1) of the Constitution.”
Also in R v Chairman Electoral Commission of Kenya,4 the Court held
that an order of mandamus could issue to compel performance of a
constitutional duty. And in R v Chief Justice of Kenya and others ex
parte Lady Justice Roselyn Naliaka Nambuye, the question arose as to
whether Judicial Review can be used to challenge constitutional
powers. The applicant had challenged the powers of the President
and the Chief Justice in respect to section 62 of the Constitution.
The Court held in the negative, per Nyamu J:
“… as regards the Chief Justice, the exercise of presidential powers
under the Constitution cannot be challenged by way of Judicial Review
at all because Judicial Review jurisdiction is derived from an Act of
Parliament and is not entrenched in the Constitution unlike India
and the United States where Judicial Review jurisdiction has been
specifically conferred under the respective constitutions. In Kenya the
jurisdiction is statutory.”5
The Court further noted that the application was incompetent
as the applicant had brought only a Judicial Review application
seeking constitutional remedies and reliefs. The proper procedure
would have been to bring separate applications for Judicial Review
and constitutional law reliefs.
It is thus apparent that in Kenya, Judicial Review is subject to
the Constitution. It is also noteworthy that the Judicial Review
jurisdiction of the High Court is distinct from the constitutional
jurisdiction, and Parliament has provided for specific rules governing
constitutional references. Thus, while Judicial Review applications
are brought to court through Order 53 of the Civil Procedure Rules,
constitutional applications come under the Constitution of Kenya
4 Miscellaneous civil case number 81 of 1999.

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(Protection of Fundamental Rights and Freedoms of the Individual)

Practice and Procedure Rules of 2001.6
B. CONTROL OF ADMINISTRATIVE ACTION

The nature of Judicial Review can be best understood by appreciating
the character of administrative decisions or functions, which are the
subject matter of Judicial Review. Administrative functions may
be divided into a number of broad categories, namely ministerial,
administrative, legislative, judicial and quasi-judicial.
Ministerial functions belong to the province of administrative
law because ministers are empowered to implement government
policies through the exercise of discretionary powers. In the course
of exercising such powers, a minister may act in excess of authority
bestowed, to the detriment of an individual or institution. For this
reason, an aggrieved party must have a remedy.
Administrative-cum-legislative powers or decisions also form
the subject-matter of Judicial Review. Ordinarily, courts of law are
not entitled to go behind legislation unless such legislation offends
the Constitution and can therefore be declared null and void for
want of conformity with the Constitution.7 However, where
legislation allows for delegation of authority, such delegated or
subsidiary legislation must be in conformity with the parent statute,
and if not, it will be amenable to Judicial Review.
Quasi-judicial powers refer to the exercise of powers, which are
fundamentally judicial, but without the usual trappings of an ordinary
trial such as strict compliance with rules of procedure and rules of
evidence. Proceedings in Licensing Boards, Tribunals, Universities
and even schools fall in this category and are amenable to Judicial
Review if they occasion legal injury. The case of Elizabeth Wainaina
and others v The Board of Governors of Pangani Girls’ High School8 is
germane. In the case, the High Court quashed the decision of the
6 Legal Notice number 133 of 2001.

7 Under section 3 of the Constitution of Kenya (revised 1998):
“… if any other law is inconsistent with this Constitution, this Constitution shall
prevail and the other law shall, to the extent of the inconsistency, be void.”
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Board of Governors of Pangani Girls’ School indefinitely suspending

the three applicants. The applicants, Elizabeth Wainaina, Georgina
Thige and Violet Nzilani had contended that the Board suspended
them unlawfully and without having due regard to the principles of
natural justice, in particular that they had been condemned unheard.
The Court, before finally finding in their favour, took time to deal
with the issue touching on the jurisdiction of the Court to entertain
matters of this nature. Mbogholi J said:
“… On my part I have considered the submissions by both learned
counsel and the cited authorities. Breach of the rules of natural justice
has been alleged. Breach of procedure under the Education Act has been
alleged. Breach of rights of the individuals (the applicants) has been
alleged. Is it right for the court to close the door of corridors of justice
against the applicants without examining these allegations? Pangani
Girls’ School is not a private club where deliberations and action taken
against members may be said to be an in-house matter. In my judgment
after considering the relevant material before me and weighing one
thing against another I find that the court has jurisdiction to deal with
this matter.”9
In subsequent cases the High Court has ruled that it has jurisdiction
to entertain decisions of administrative bodies. In the case of
Michael Omole Ocharo and others v The Council of Legal Education,10
the applicants were holders of law degrees from universities in
India. They applied to be admitted to the Kenya School of Law
but the respondent institution refused to admit them to the School.
The applicants went to court seeking orders that the respondent’s
decision denying them admission to the Kenya School of Law be
quashed and that the respondent be ordered to admit them. They
contended that the respondent had failed to give them a hearing
before denying them admission. The Court, while conceding that
the respondent had been in breach of the rules of natural justice,
nevertheless declined to order their admission, but directed that the
respondents reconsider their applications. In the words of Mbogholi-
Msagha J:
9 Ibid. See also MS Suba and others v Egerton University miscellaneous appeal number
157 of 1996; Daniel Nyongesa and others v Egerton University College civil application
number 90 of 1989.
10 Miscellaneous application number 917 of 1996.
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“The fact that the applicants were not given a hearing does not mean
that they qualify for admission.”11
The applicants in the Ocharo case relied heavily on an earlier case
of Rita Biwott v The Council of Legal Education12 where the court was
called upon to decide the applicant’s fate under similar circumstances.
In that case the applicant after obtaining a Bachelor of Arts degree
from McGill University, Montreal, Quebec in Canada, was admitted
for a degree of Bachelor of Laws at the University of Edinburgh. She
was exempted from one year of study in recognition of the course
and examinations passed by her in her first degree.The course for the
Bachelor of Laws Degree therefore took two years. The applicant’s
application to be admitted to the Kenya School of Law was rejected
on the ground that the Council did not approve her two year degree
at the University of Edinburgh under section 13(1) of the Advocates
Act.13 In finding for the applicant, the High Court ruled that she had
not been given a hearing before her application was rejected and
thus there was a breach of the rules of natural justice. The decision
11 Ibid.
12 In the matter of Rita Biwott v The Council of Legal Education High Court miscellaneous
civil case number 1122 of 1994.
13 Chapter 16 of the Laws of Kenya, section 13(1) provides as follows:
13 (1) A person shall be duly qualified if:
(a) having passed the relevant examinations of any recognized university
in Kenya he holds, or has become eligible for the conferment of, a
degree in law of that university; or
(b) having passed the relevant examinations of such university, university
college or other institution as the Council of Legal Education may
from time to time approve, he holds, or has become eligible for
the conferment of, a degree in law in the grant of that university,
university college or institution which the Council may in each
particular case approve; and thereafter both:
(i) he has attended as a pupil and received from an advocate
of such class as may prescribed, instruction in the proper
business, practice and employment of an advocate, and has
attended such course or tuition as may be prescribed for a
period which in the aggregate in eluding such instruction,
does not exceed one year; and
(ii) he has passed such examinations as may be prescribed other
than those examinations passed by him for the purpose of
obtaining a degree referred to in paragraph (a) or (b); or (c)
he possesses any other qualifications which are acceptable to
and recognized by the Council for Legal Education.
(2) The Council for Legal Education may exempt any person from any or all of
the requirements prescribed for the purposes of paragraph (i) or paragraph
(ii) o subsection (1) upon such conditions, if any, as the Council may impose.
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of the Council was quashed and the principal of the Kenya School
of Law ordered to admit her into the school.
It is understandable that Parliament should want to exclude
from the ponderous and expensive procedures of courts of law the
determination of disputed facts upon which administrative decision
which affect the rights or duties of individual private citizens are
based, but blanket immunization of administrative action from
judicial scrutiny is equally undesirable if the rule of law is to thrive.
In theory, new legislation which creates new rights, could be
secured by confining its interpretation to administrative tribunals
to the exclusion of the courts of law. This was the theory which
lay behind the “no certiorari” clauses which were a common feature
of earlier legislation by which administrative tribunals were set up.
But the theory is unsound. No legislation which confers upon
an administrative tribunal power to decide whether an individual
private citizen is entitled to a right or subject to a duty can be self-
contained. For its decision to be effective, means must be provided
for enforcing those rights or duties; and any steps taken to enforce
them necessarily bring them under the scrutiny of a court of law.
When the enforcement of a decision of an administrative
tribunal comes before a court of law, either because the Executive
has neglected to enforce it or because a private citizen contends
that its direct enforcement by the Executive is an infringement of
his legal rights, the court is necessarily confronted with the inquiry
as to whether the decision was one which the relevant legislation
empowered the tribunal to make or not. In general, Judicial Review
exists for the purpose of supervising public bodies through control
of administrators and restraint of abuse of power. In R v Criminal
Injuries Compensation Board, ex parte Lain14 Lord Parker CJ said:
“The only constant limits throughout were that it was performing a
public duty... we have it seems to me reached the position when the
ambit of (Judicial Review) can be said to cover every case in which a
body of persons of a public as opposed to a purely private or domestic
character has to determine matters affecting subjects provided always
that it has a duty to act judicially.”
14 [1967] 2 QB 864 at 882C and D.

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Courts of law may therefore intervene through Judicial Review in

any of the following circumstances:
(a) when a body acts ultra vires.
(b) when there is jurisdictional error.
(c) when there is an error of law.
(d) where there is an error of fact.
(e) when there is an abuse of power.
(f) when irrelevant considerations governed the making of
a decision.
(g) when there is bias.
(h) when there is an unfair hearing.
(i) when there is a procedural flaw.
(j) when there is irrationality.
(k) when there is bad faith.
It is obvious from a reading of the above that there is plenty of
overlapping. For this reason Lord Diplock opted to classify all of them
in three divisions.15 These are: illegality (unlawfulness), irrationality
(unreasonableness) and procedural impropriety (unfairness). The
three limbs are neither exhaustive nor mutually exclusive. To quote
Lord Diplock in extenso:
“Judicial Review has I think developed to a stage today when... one
can conveniently classify under three heads the grounds upon which
administrative action is subject to control by Judicial Review. The first
ground I would call ‘illegality’, the second ‘irrationality’ and the third
‘procedural impropriety’. That is not to say that further development
on a case by case basis may not in course of time add further grounds...
but to dispose of the instant case, the three already well established
heads that I have mentioned will suffice. By ‘illegality’ as a ground
for Judicial Review, I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must
give effect to it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those persons,
the judges, by whom the judicial power of the state is exercisable.
By ‘irrationality’ I mean what can now succinctly be referred to as
‘Wednesbury unreasonableness’ … It applies to a decision, which is so
outrageous in its defiance of logic or of accepted moral standards that
15 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
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no sensible person who had applied his mind to the question to be

decided could have arrived at it. Whether a decision falls within this
category is a question that judges by their training and experience
should be well-equipped to answer, or else there would be something
badly wrong with our judicial system … I have described the third
head as procedural fairness towards the person who will be affected
by the decision. This is because susceptibility to Judicial Review under
this head covers also failure by an administrative tribunal to observe
procedural rules that are expressly laid out in the legislative instrument
by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural justice.”16
C. ULTRA VIRES
Traditionally, ultra vires was the main ground for the issue of the
orders of certiorari, mandamus and prohibition. Ultra vires means two
things. First, that a body has done an act which it has no capacity to
do. Secondly, that the body in the course of exercising its authority
has done an act without following the prescribed procedure or has
failed to observe principles of natural justice.
The simplest example of ultra vires is where an Act of Parliament
confers limited powers on a public body, and the body purports to
exercise them but ignores the limitations. It is helpful to extend this
logic in two ways, to include:
(a) any incompatibility with the dictates of Parliament; and
(b) the dictates of any legally recognised and superior source
of power.
A number of scenarios then slot into place, ranging from Judicial
Review of primary legislation for incompatibility with rules.
The term ultra vires is sometimes used as a single umbrella
for most, or indeed all grounds for Judicial Review. Two factors
encourage this. First, the fact that any public wrong can in some
sense be characterised as an excess of power (just as it can be termed
an abuse of power). Secondly, the traditionalist desire to justify
intervention on the basis of what Parliament intended, did not
intend, cannot have intended or is presumed not to have intended.
16 Ibid at 410D-411B.
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This was illustrated in Ridge v Baldwin,17 in which Charles Ridge

Chief Constable of Brighton Police was prosecuted on conspiracy
and corruption charges and, though acquitted, the trial judge made
adverse comments about his leadership. Under the Municipal
Corporations Act of 1882 section 191 which provided that the
Watch Committee “may” dismiss any “constable whom they think
negligent in the discharge of his duty or otherwise unfit for the
same”.The Committee dismissed Ridge. On appeal to the Secretary
of State, whose decision was “final and binding” under the Police
Appeals Act of 1927 section 2, the dismissal was upheld. Anxious
to secure pension rights, Ridge commenced writ proceedings for a
declaration that the dismissal was void.The House of Lords held that
the declaration would be granted. The Committee had breached
a duty of natural justice applicable under common law and/or a
procedural code contained in Police Regulations. Its decision was
therefore void and could not apply.
The problem of ultra vires was also dealt with by the Court
of Appeal in Associated Provincial Picture Houses Limited v Wednesbury
Corporation.18 APPH were the owners of the Gaumont Cinema in
Wednesbury.They applied for a licence to give Sunday performances.
Under the Sunday Entertainments Act of 1932 section 1(1) the
licensing authority had power “to grant licences … subject to such
conditions as the authority thinks fit to impose”. The licence was
granted subject to a condition that “no children under the age
of fifteen years shall be admitted to any entertainment, whether
accompanied by an adult or not”. APPH applied for a declaration
that the condition was ultra vires and unreasonable”. It was held that
this was not “a condition which no reasonable authority, acting
within the four corners of their jurisdiction, could have decided to
impose”. The court said:
“It is true the discretion must be exercised reasonably. What does that
mean... It is frequently used as a general description of the things that
must not be done. For instance a person entrusted with a discretion
must direct himself properly in law. He must call his own attention to
the matters which he is bound to consider. If he does not obey those
17 [1964] AC 40.
18 [1948] 1 KB 223.
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rules, he may truly be said, and often is said, to be acting ‘unreasonably’.

Similarly you may have something so absurd that no sensible person
could ever dream that it lay within the powers of the authority.
Werrington LJ, I think it was, gave the example of the red-haired teacher,
dismissed because he had red hair. That is unreasonable in one sense. In
the other sense, it is taking into consideration extraneous matters. It is
so unreasonable that it might almost be described as being done in bad
faith. In fact all those things largely fall under one head.”
It is to be noted however, that mere variation in wording between
an Act of Parliament and Regulations may not necessarily render
the later ultra vires. An illustration of this was in Abeid v Badbes19 on
whether the issue was variation between the wording of Act and the
wording of the Regulations made thereunder rendered the form (in
the Schedule) ultra vires. The conflict was in section 4 of Landlord
and Tenant (Shops, Hotels and Catering Establishments) Act of
1965, and Regulation 4 of the regulations made thereunder. The
Court held that the form was not ultra vires as it contained all that
was required under the Act and Regulations, which were directory.
D. JURISDICTIONAL ERROR
The concept of “jurisdiction” is notoriously elusive, mainly because
it conveniently provides:
(a) an umbrella term for describing grounds generally;
(b) “mask grounds”;20 and
(c) access to the language of “nullity” (allowing statutory
ousters to be circumnavigated).
Where none of this enterprise is necessary, Jurisdictional error may
assume a more innocuous (and narrow) form.
The term jurisdiction has been used to justify or warrant hard-
edged intervention in situations where a body erroneously purports
19 [1968] EA 598.
20 One neat way in which the law of Judicial Review develops involves using a well-
established principle to ease the introduction of a new one. Once at the party, the
“mask” can be removed. The best examples are: Jurisdictional error as a mask for
mere fact of law; error of law as a mask for fundamental error of fact; natural justice/
irrationality as masks for a duty to give reasons; error of law/irrationality as a mask
for proportionality; abuse of power as a mask for substantive unfairness.
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to exercise a jurisdiction which it does not possess or declines to

exercise one which it does. The point of asking whether an error
“goes to jurisdiction” is to decide not whether it is reviewable, but
whether it is correctable.
Judicial Review will lie where an inferior court or tribunal
or public body has acted without or in excess of its jurisdiction.
Such bodies must not act outside their powers. They must abide
by any Jurisdictional conditions, and follow prescribed procedures,
and cannot delegate except as expressly laid down. In making its
decision, such a body must not ask itself the wrong questions, and it
must not take into account matters which it has not been directed to
take into account. Any order must be one which it has jurisdiction
to make.
The landmark case that explains jurisdictional error is
Anisminic Limited v Foreign Compensation Commission.21 Anisminic
was an English Company which had owned a mining property in
Egypt. As a result of the Suez Crisis the property was occupied by
Israeli forces and then sequestrated by the Egyptian Government
Anisminic obtained £0.5 million from a compulsory “sale” of its
property to an Egyptian organisation called TEDO. Under a treaty,
the Egyptian Government paid the UK Government £27.5 million
compensation for property claims by UK nationals. The FCC was
the body empowered to manage this fund, in accordance with the
Foreign Compensation Act of 1950 and a 1962 Order in Council.
By article 4 of the Order it was provided that FCC “shall treat a
claim ... as established” if satisfied that the applicant was “the owner”
of the relevant property or the “successor in title of such person”.
The FCC rejected Anisminic’s claim on the basis that TEDO was its
“successor in title”, and as such it was not of British nationality and
so the claim did not comply with the terms of the relevant delegated
legislation. The House of Lords held that FPCC had misconstrued
article 4, in such a way that its determination was a “nullity” and so
not covered by section 4(4) of the Act which provided that FCC’s
determination of any application “shall not be called into question
in any court of law”. It had made an erroneous inquiry, departed
from its mandate and made a decision outside “its permitted field”.
21 [1969] 2 AC 147.
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In cases of jurisdictional error, the inherent powers of the court

may be invoked to ensure that the body concerned if it failed to
exercise jurisdiction which it has, is compelled to do so by way of
mandamus, and in cases where the body did not have jurisdiction, the
resulting decision is quashed by way of certiorari.
E. ERROR OF LAW
A reviewing court may intervene to correct a fundamental error
of law made by an administrative tribunal, or an inferior court
going to the jurisdiction or appearing on the face of the record or
constituting a fundamental misdirection the effect of which is to
make the resulting decision destitute of legality.
By “illegality” is meant that the decision-maker must correctly
understand the law that regulates their decision and must give effect
to it. Whether they have or not is “par excellence” a justiciable
question to be decided, in the event of dispute, by judges, by whom
the judicial power of the State is exercisable. In Cozens v Brutus22
Lord Reid said:
“The meaning of an ordinary word of the English language is not a
question of law.The proper construction of a statute is a question of law...
It is for the tribunal which decides the case to consider, not as law but
as fact, whether in the whole circumstances the words of the statute do
or do not as a matter of ordinary usage of the English language cover or
apply to the facts which have been proved. If it is alleged that the tribunal
has reached a wrong decision then there can be a question of law but
only of a limited character. The question would normally be whether its
decision was unreasonable in the sense that no tribunal acquainted with
the ordinary use of language could reasonably reach that decision.”
Where there is an error on the face of the record, Judicial Review will
lie even if the body being reviewed has kept within it’s jurisdiction. In
the English case of R v Northumberland Compensation Appeal Tribunal
ex parte Shaw,23 a former employee claimed compensation on the
termination of his employment. Under the relevant regulations,
the tribunal was required to assess the compensation payable by
22 [1973] AC 854 at 861.

23 [1951] 1 KB 711.
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aggregating two periods of employment. In its decision the tribunal

stated that the two periods of employment, only the second period
should be taken into account. As the error appeared on the face of
the order, the decision was quashed.
The main remedy where there is an error on the face of a record
is certiorari. The reason is that, unlike the other grounds, a decision
containing an error on its face is valid until quashed by certiorari.
A recent example in Kenya which illustrates errors by a body
relates to the activities of the Rules Committee created under section
81 of the Civil Procedure Act.24 The Committee is empowered to
make rules which must be in conformity to the enabling statute.
Vide Legal Notice 164 of 1992 the Committee purported to amend
Order 53 of the Civil Procedure Rules by doing away with the
requirement for leave as a condition precedent to applying for
Judicial Review. In doing so, they did not reckon with the provisions
of section 8 of the Law Reform Act25 which is the enabling statute.
This anomalous situation was considered in the case of Kenneth
Matiba v Attorney-General.26 where the Court ruled that the acts of
the Rules Committee were ultra vires and therefore null and void
to the extent that they were not in conformity with the enabling
statute.
Misdirection also constitutes error of law and also amounts to
considering an irrelevancy.
F. ERROR OF FACT
A decision may be subjected to Judicial Review on the basis of
factual matters.This may arise and be justified if there is an incorrect
finding as regards precedent facts or if there is an irrational conclusion
from facts.
It is important to appreciate that facts are integral to the making
of decisions and the validity of a decision invariably hinges upon the
proper appreciation and interpretation of facts. Error as to fact may
therefore arise in cases where a tribunal is unreasonable and exercises
24 Chapter 21 of the Laws of Kenya.

26 Miscellaneous civil application number 790 of 1993.
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discretion in a manner that does not give due regard to the factual
circumstances of the case at hand. If a decision is arrived at through
abuse of discretion, then it becomes amenable to Judicial Review.
Judges are cautious about entertaining challenges based on
alleged factual errors. This is because, questions of fact are primarily
entrusted to the public decision-maker and to reinvestigate them
would come close in many contexts to turning Judicial Review to an
appeal on the merits. However, there are important and developing
means by which judges can appropriately interfere in the face of
a fundamentally flawed conclusion of fact. Where the existence or
non-existence of a fact is left to the judgment and discretion of a
public body and that fact involves a broad spectrum ranging from
the obvious, to the debatable, to the just conceivable; it is the duty
of the court to leave the decision of that fact to the public body to
whom Parliament has entrusted the decision-making power save
in a case where it is obvious that the public body, consciously or
unconsciously acted perversely.
It is also possible to have an unsustainable conclusion of fact as
error of law. It may be that the facts found are such that no person
acting judicially and properly instructed as to the relevant law could
have come to the determination in issue. In those circumstances,
too, the court must intervene. It has no option but to assume that
there has been some misconception of the law and that this has been
responsible for the determination. So there, too, there has been an
error in point of law.
G. ABUSE OF POWER
The term “abuse of power” is an omnibus term, which encompasses
improper fettering of discretion, bad faith, improper motive,
frustrating legislative powers, improper delegation and substantive
unfairness, among others.The greatest reason for the Judicial Review
jurisdiction of the court is to ensure that all statute conferred power
is exercised within the confines of the law. A body or a person may
undermine its discretion so that it becomes a prisoner of its own
rules which are not grounded upon any law. This way it shall have
abused its powers.
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A licensing Board may, for example, entertain as a rule of

practice that it shall only issue licences to particular persons. In so
doing, it will be fettering its discretion in that it will disable itself
from considering each individual application on its own merits.27
H. RELEVANCY AND IRRELEVANCY
It is a basic principle of administrative law that a public body should

take into account all, and only, relevant matters. Failure to do so is a
common ground for Judicial Review. Intervention by a reviewing
court is warranted where the relevant public decision-making body
has considered something which it ought to have disregarded or
disregarded something which it ought to have considered. This
principle was aptly captured by Lord Diplock when he said:
“It is not for any court of law to substitute its own opinion for (that of the
Secretary of the State); but it is for a court of law to determine whether
it has been established that in reaching his decision unfavourable to the
council he had directed himself properly in law and had in consequence
taken into consideration the matters which upon the true construction of
the act he ought to have considered and excluded from his consideration
matters that were irrelevant to what he had to consider.”28
Put more compendiously, the question for the court is, did the
Secretary of State ask himself the right question and/or take
reasonable steps to acquaint himself with the relevant information
to enable him to answer it correctly?
To what extent does the relevancy/irrelevancy ground for
Judicial Review involve the court substituting its own judgment?
Judicial Review seeks to strike a critical balance. One way of doing
so is to distinguish between different types of relevance. The first
type are matters which must as duty be taken into account, or left
out of account. Identifying these is a hard-edged question for the
court. The second type are those residual matters which may as a
matter of discretion be taken into account, or left out of account
subject only to soft review of the decision whether to do so.29
27 See Fernandes v Kericho Liquor Licensing Court [1968] EA 640.
28 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014 at 1064H-1065B.
29 Tumaini v R [1972] EA 24 at 44.
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I. BIAS
The law does not look favourably to situations of bias. Therefore
alleged or actual bias on the part of a public body legitimises the
intervention of a reviewing court. When seized of a matter, the
reviewing court investigates the appearance of partiality and the
guiding principle has always been real likelihood of bias.30
Where the decision - maker has a direct pecuniary interest
in the matter under consideration, this is regarded as entitling an
applicant (with standing) to Judicial Review. The principle that a
person is disqualified from participation in a decision if there is a real
danger that he or she will be influenced by a pecuniary or personal
interest in the outcome, is of general application in public law and is
not limited to judicial or quasi-judicial bodies or proceedings. What
will differ from case to case is the significance of the interest and its
degree of proximity or remoteness to the issue to be decided and
whether, it is not so insignificant or remote as to be discounted, the
disqualified member has violated his disqualification by participating
in the decision.31
Like direct pecuniary interest, actual bias is a conclusive vitiating
factor. Of course, if actual bias is proved, that is the end of the case;
the person concerned must be disqualified.32 However, in all cases of
bias, there is recourse to the real danger test:
“Having ascertained the relevant circumstances, the court should ask
itself whether, having regard to those circumstances, there was a real
danger of bias on the part of the relevant member of the tribunal in
question, in the sense that he might unfairly regard (or have unfairly
regarded) with favour, or disfavour, the case of a party to the issue under
consideration by him.”33
J. (UN)FAIR HEARING
The extent and scope of common law duty of procedural fairness
owed by a public body depends on all the attending circumstances
30 Ibid at 441 and Metropolitan Properties (FGC) Limited v Lannon [1969] QB 577.
31 R v Gough [1993] AC 646.
32 Ibid, Lord Goff at 661G.
33 Ibid, per Lord Goff at 670F.
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and includes giving the concerned party the opportunity to present

their case either in person or through a duly appointed agent. It is
the law, therefore, that a decision arrived at without due compliance
with the requirements of fairness is amenable to review.
The right to be heard is one of the essential characteristics of
what is often called natural justice. The other is the rule against bias.
Because of the important nature of the rules of natural justice, it
forms the next chapter. In this way, unfair hearing as a ground for
Judicial Review will then be addressed more substantively.
K. PROCEDURAL FLAW
The common law imposes basic minimum standards of procedural
fairness. They have traditionally been known as the rules of natural
justice embracing the requirements of (a) a fair hearing and (b)
the absence of bias. Emerging terminology involves looking for
“material irregularity” or want of “due process”.
A reviewing court is also entitled to exercise review functions
where a body makes a decision without due regard to prescribed
procedure. In Neill v North Antrim Magistrate’s Court34 Lord Mustill
identified “what in the vocabulary of Judicial Review would be
called a breach of natural justice”, thus:
“This term has overtones which seem to me inappropriate to the present
case. I prefer to say that as a result of ‘a bona fide’ but mistaken ruling on
a procedural matter the applicant has suffered real prejudice. There has
been a material irregularity in the conduct of the committal, or, if one prefers
the transatlantic terminology (American), a want of due process.”
It has been said that it is only in the case of a really substantial
error leading to a demonstrable injustice that the judge should
contemplate the granting of leave to move.35 Such irregularity may
be that the complainant was not given an opportunity to make
arguments. It may well be that even the argument, however cogently
presented would not have persuaded the presiding tribunal. Yet,
failure to give that opportunity would be fatal and would give rise
to Judicial Review.
34 [1992] 1 WLR 1220, 1230D-E.

35 R v Oxford City Justices ex parte Berry [1988] QB 507; [1987] 1 All ER 1244.
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L. IRRATIONALITY
Irrationality means conduct beyond the range of responses reasonably
open to the public body. A reviewing court may review a decision
if it considers that a public body has done something which ought
not to have been done by a reasonable body with the same function
and confronted with the same circumstances. The test in such cases
is objective.
A decision will be quashed where it is so unreasonable that no
reasonable person or body properly directing itself on the law could
ever make it.This is often known as Wednesbury unreasonableness, from
Lord Greene MR’s judgment in Associated Provincial Pictures Houses
Limited v Wednesbury Corporation.36 The principle applies in exceptional
cases where the unreasonableness of a decision verges on an absurdity.
For example, in the English case of R v Ealing London Borough Council ex
parteTimes Newspaper Limited37 the Council was held to be unreasonable
in refusing to provide certain newspapers to their libraries because they
did not agree with the newspapers’ proprietors on political grounds.
M. BAD FAITH
Judicial Review will lie where a decision-maker is shown to have
acted “mala fides” that is, in bad faith. “Mala fides” is a phrase often
used in relation to the exercise of statutory powers. It has never
been precisely defined as its effects have remained mainly in the
region of hypothetical cases. It covers fraud or corruption. This is
something which should not be lightly alleged and is difficult to
prove. Moreover, it is usually unnecessary given the more familiar
alternatives, such as bias and improper motive.
Mala fides (bad faith) may be evident for instance where the
decision-making has been actuated by vindictiveness.
N. ABRIDGEMENT OF FUNDAMENTAL RIGHTS

Just as in administrative decisions, Judicial Review is also used to
remedy situations where violations of fundamental human rights and
36 [1948] 1 KB 223.
37 [1986] 85 LGR 316.
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freedoms have been occasioned. Where the instruments of Judicial

Review have been employed to rectify such violations, it is clear that
the operational principles are as discussed in the preceding sections.
Perhaps this is because such decisions are mainly taken by people
in administrative positions or exercising executive power.This could
be ministerial, administrative or quasi-judicial in nature. Proceedings
of land control boards, other statutorily established boards and prison
tribunals fall in this category.
In Wanyiri Kihoro v The Attorney-General38 the appellant, a lawyer
was arrested without a warrant and detained for seventy-four
days without trial. He alleged that he was unlawfully tortured and
assaulted contrary to his fundamental rights under sections 72, 74
and 81 of the Constitution of Kenya. The appellant claimed that
as a result of the unlawful imprisonment, torture and assault, he
suffered great pain and sought a declaration that his fundamental
rights had been contravened and sought aggravated compensation.
The trial court having dismissed his case, he appealed to the Court
of Appeal. The Court of Appeal held that since the appellant was
held in unlawful custody, he was entitled to a declaration that his
rights under section 72 and section 74 of the Constitution had
been contravened. Although this case was not brought under Order
53 of the Civil Procedure Rules, it demonstrates particularly with
reference to jurisdictions such as England – where declarations are
made in applications for Judicial Review that the scope of review in
Kenya can be enlarged.
The issue of abridgement of fundamental rights was also
considered in the case of David Onyango Oloo v The Attorney-General.39
This was an appeal from a decision by the High Court of Kenya. On
the 1 of November 1982, the appellant was convicted of an offence
under section 57(1) and (2) of the Penal Code40 and sentenced to five
years imprisonment. Upon his admission into prison, the appellant
was entitled under section 46(2) of the Prisons Act41 to be credited
with the full amount of remission to which he would be entitled
38 Civil appeal number 151 of 1988.
40 Chapter 63 of the Laws of Kenya repealed in 1997.
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at the end of sentence if he lost no remission of sentence. On 17

February 1983, the Commissioner of Prisons wrote to the Officer-
in-Charge, Kamiti Maximum Prison, while the appellant was serving
the sentence and stated that he, the Commissioner considered that
it was in the interest of the reformation and rehabilitation of the
appellant that he be deprived of remission. The appellant averred
that prior to the receipt of the commissioner’s letter he had not been
charged, tried and found guilty or punished for any offence against
prison discipline, that he was not informed what he had done to
warrant reformation and rehabilitation over and above the lawful
sentence that he was not given any opportunity to be heard, explain
or make representations as to why he should not be deprived of
his remission; that the decision of the Commissioner was arbitrary,
in breach of natural justice, ultra vires section 46 of the Act, and
therefore illegal, null and void. The appellant as plaintiff therefore
prayed for judgment against the respondent for:
(i) A declaration that the decision of the Commissioner of
Prisons depriving him of his remission was made in breach
of rules of natural justice and it was null and void ab initio.
(ii) A declaration that the decision of the Commissioner was
a nullity since it was unreasonable, ultra vires and not based
on any material facts.
(iii) A declaration that the plaintiff was entitled to be released
after serving two thirds of his sentence.
(iv) A declaration that the imprisonment of the plaintiff
(appellant) after his normal sentence was illegal and a false
imprisonment.
(v) General damages for false imprisonment.
The Court of Appeal held that the Commissioner’s act to deprive
the appellant of his remission was null and void and proceeded to
quash it. In the words of Nyarangi JA:
“The Commissioner’s decision was an administrative act. Nevertheless
rules of natural justice apply to the act in so far as it affects the rights of
the applicant and the appellant’s legitimate expectation to benefit from
the remission by a release from a prison some 20 months earlier than if
he had to serve the full sentence of imprisonment.”
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The above case is quoted in ex tenso because it embraces almost all

the possible grounds for Judicial Review. In a unanimous judgment.
Nyarangi JA proceeded to add:
“I would say that the principle of natural justice applies where ordinary
people would reasonably expect those making decisions which will
affect others to act fairly. In this instant case, reasonable people would
expect the Commissioner to act fairly in considering whether or not to
deprive an inmate of his right of remission earned in accordance with
the provisions of the Prisons Act … The Commissioner is required to
act objectively so as to act fairly. Decisions affecting rights of Prisoners
are subject to rules of natural justice just like rights of people at liberty.
To the extent that the appellant was not heard, one can say that the
Commissioner acted subjectively and arbitrarily. A decision in breach
of the rules of natural justice is not cured by holding that the decision
would otherwise have been right. If the principle of natural justice
is violated, it matters not that the same decision would have been
arrived at …”
What is clear from the decision in Onyango’s case is that the rules of
natural justice must be followed every time a decision-maker makes
a decision affecting the rights of citizens. Want of such procedure
culminating in abridgement of fundamental rights should certainly
be shot down by means of Judicial Review.
Further in the case of Mirugi Kariuki v Attorney-General42 the
appellant was charged with treason. He petitioned the Attorney-
General to grant leave to an English Barrister to lead his defence.
In the exercise of his absolute discretion to consider such requests
conferred by section 11(1) of the Advocates Act,43 the Attorney-
General wrote a letter to the appellant saying that leave would
not be granted because the appellant’s trial was straight forward
and did not require the assistance of a foreign advocate. In an
application for certiorari, the court scrutinised the reasons upon
which the Attorney-General’s action was grounded found them
suspect, removed the offending letter in the High Court, quashed
it and directed the Attorney-General to reconsider the appellant’s

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request in a manner more respectful to the norms of sound

administration.44
Kenyan courts have not always been forceful in situations of
breach of fundamental rights. For example, in Raila Odinga v Attorney-
General,45 the court held that the appellant may be estopped from
challenging the sufficiency and detail of the reasons for a detention
order whether before an officer serving the order or before one
of Judicial Review in Kenya Periodic Detainees’ Review Tribunals.
These grievances of the appellant were seen as mere technicalities
which would not justify the release of the detainee. Similarly, in John
Harun Mwau v Attorney-General,46 the High Court of Kenya held
that a passport is not a right the restoration of which immigration
officials can be compelled by a judicial order.
It is clear therefore, that there are questions of policy affecting
what is perceived as the operation of the bureaucratic machinery
of the state. Questions of constitutional rights seem to be left to
the Executive with the judiciary claiming incompetence and hiding
behind the face of technicalities.
As regards private property, the judicial approach seems to be
guided by a protectionist spirit; for instance, where the purpose of
public interest is held to include aims or objects in which the general
interest of the community as opposed to the particular interest of
the individual is directly concerned. In Harridas Chaganlal v Kericho
Urban Council47 the court held that although it was not out of order
for a town planning scheme to be brought into operation, it was
subject to payment of compensation. An enactment could not take
away private rights of property without compensation unless the
intention is expressed in clear unambiguous terms.
44 See also Jaramogi Oginga Odinga and others v The Electoral Commission High Court civil
case number 5936 of 1992. Although this case was not a Judicial Review case its
thrust is germane to the issues under discussion.
45 Reported in Daily Nation 7 March 1986. See also Isaiah Ngotho Kariuki v Attorney-
General; Reported in Daily Nation 3 February 1983.
46 Reported in 10 Commonwealth Law Bulletin number 3 of 1984 at 1108-1109.
47 [1965] EA 370.
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O. EXERCISE OF EMERGENCY POWERS AND JUDICIAL

INTERFERENCE
Emergency powers are powers (mostly executive in nature) exercised
at a time when there is a situation posing grave danger or peril to
the nation.48 The exercise of such powers in most occasions result in
loss of liberty of the person, loss of freedoms of association, assembly
and movement, abridgement of secure protection of law, protection
against arbitrary search and entry and at times loss of protection
from deprivation of property.
Emergency situations by their very nature present tricky choices
for all officers concerned – whether administrative, executive or
judicial. Indeed, as mentioned earlier, questions of constitutional
guarantees seem to be left to the Executive arm of Government
with the judiciary claiming incompetence and hiding behind the
face of technicalities.
In Ngotho Kariuki v Attorney-General,49 the High Court accepted
the submission that the production of a detention order prevented
the court from proceeding with an application for Habeas Corpus as
the order was itself sufficient reason for not producing the detainee.
The court assumed that the detention is lawful once the proper
instruments are produced and it is for him who alleges unlawfulness
to prove his case.
P. CONCLUSION
The review jurisdiction of the High Court is an inherent power.
It is therefore not necessary that every case must fit in some pre-
determined pigeon-hole before it is reviewed.There are circumstances
which may make a decision so flawed that the reviewing court may
consider exercising its review jurisdiction on the ground that certain
pertinent matters have not been addressed by the respondent body.
This certainly makes the scope of Judicial Review fairly wide.
48 See Preservation of Public Security Act (Chapter 57) Laws of Kenya.

49 Supra, note 45.
CHAPTER THREE
THE PRINCIPLES OF NATURAL JUSTICE
SYNOPSIS
A. Introduction
B. Duty to Act Fairly
C. The Rule Against Bias
D. Right to be Heard
E. Prior Notice
F. The Opportunity to be Heard
G. Disclosure of Information
H. Adjournment
I. Cross-Examination
J. Giving Reasons
K. Legal Representation
L. Effect of Breaches of Natural Justice
M. Conclusion
A. INTRODUCTION
The principles of natural justice are basically concerned with
common law rules of fair procedure. The principles were developed
by the courts and are applied to administrative agencies (public
authorities) engaged in judicial and/or quasi-judicial functions.
In broad terms, the principles of natural justice espouse the rule
against bias and the duty to hear the other side. They have a wide
general application, akin to the due process of law in the United
States of America. They feature prominently in numerous areas of
discretionary administrative power; for however wide the powers
of the state and however extensive the discretion they confer, it is
always possible and the courts should always strive, to require them
to be exercised in a procedurally fair manner.
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It is true that the rules of natural justice restrict the freedom

of administrative action and that their observance costs a certain
amount of time and money, but time and money are likely to be well
spent if they reduce friction in the machinery of the government.
It is because they are essentially rules for upholding fairness and so
reducing grievances that the rules of natural justice can be said to
promote efficiency rather than impede it.
Expressly or by implication, some statutory procedure may seek
to exclude or limit the rules of natural justice. It is on the above
premise that Bosire J in the case of Republic v Attorney-General and
Minister of Energy and Kenya Power and Lighting Company Limited1
held that, the Government is presumed to act in the best interest of
its subjects. This contention implied that a minister’s duty to hear
and address the objections pursuant to section 72 of the Electric
Power Act2 from those affected by the variation of the tariffs, was
not automatic. It was still within his powers to discern whether an
inquiry was necessary and if so the nature thereof.
Any person making objections in response to such publicised
applications would normally be legally entitled to have his written
objections taken into account by the public authority. This would
appear to exclude any right to an oral hearing before the authority,
prior to a decision being taken and also excludes any legal right
to make representations by any person in respect of an application
to object to the proposals. This exclusion of discussion about the
merits of the Government policy was also in contention at an
inquiry in an English case into highway proposals. In the case of
Bushel v Secretary of State for the Environment,3 the House of Lords
decided that the inspector’s refusal to permit cross-examination on
traffic flow forecasts was justifiable since these forecasts are facets of
Government policy relating to criteria for motorway construction.
Absence of rights and/or interest has usually given rise to
presumption that the rules of natural justice do not apply. That
could be the reason why to eliminate doubt, Lord Diplock, while
1 High Court civil case number 572 of 1994.

3 [1980] 2 All ER 608.
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The Principles of Natural Justice 37
delivering the judgment of the Privy Council in the case of Attorney-

General v Ryan4 observed:
“It has long been settled law that a decision affecting the legal rights of
an individual which is arrived at by procedure which offends against the
principles of natural justice is outside the jurisdiction of the decision-
making authority.”
The Kenyan Court of Appeal took the above view in Mirugi Kariuki
v Attorney-General5, when it held that the mere fact that the exercise
of discretion by the decision-making authority affects the legal
rights or interests of some person makes it judicial, and therefore
subject to the procedure required by natural justice.
Thus violation of natural justice makes a decision void, as in any
other case of ultra vires.The rules of natural justice operate as implied
mandatory requirements, non-observance of which invalidates
the exercise of the power. The courts are not always willing to
be confined by rigid categories on what constitutes principles of
natural justice. In some cases they have held that there is a duty of
procedural fairness even where there is neither Statute nor contract
upon which to base it. A simple case of an institution operating in
the public sphere and exercising immense power de facto is enough
to invite Judicial Review and by extension the observance of the
principles of natural justice.6
B. DUTY TO ACT FAIRLY

The duty to act fairly seems to connote an obligation to observe some
aspect of the rules of natural justice, according to the circumstances and
background of the particular case. In disciplinary proceedings, the rules
of natural justice are normally attracted, that is, the right to be heard and
the rule against bias.The duty to act fairly may well require observance
of the requirement that a person is given a reasonable opportunity for
his case to be heard, albeit on a limited basis. In an English case, R v
Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’ Association7
4 [1980] AC 718 at 730E.

5 Civil appeal number70 of 1991.
6 R v Panel on Take-overs and Mergers [1987] QB 815; [1987] 1 All ER 564.
7 [1972] 2 All ER 589.
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the corporation had a statutory power to license taxis. After discussions

between the corporation and the Taxis Fleet Operators’Association, an
undertaking was given by the corporation that no further taxi licences
would be granted until private legislation was enacted to regulate
minicabs. Subsequently and without consulting the Association, the
corporation proposed to increase the number of licences before the
legislation was granted to the Association requiring the corporation
to give a hearing before deciding whether to depart from its earlier
undertaking. In this case, the Association’s rights were not in issue but
the taxi owners were definitely affected by the corporation’s decision
to grant further licences. This seemed to account for the court’s
willingness to require limited consultation.
In an interesting contrast, where no right is involved, the courts
are normally reluctant to go into the propriety of the administrative
agencies compliance with rules of natural justice. In another English
case, Schmidt v Home Secretary,8 a foreigner applied unsuccessfully to
remain in the United Kingdom beyond the period stipulated in his
permit. He was not given a hearing and the court decided that the
Home Secretary had not acted unfairly because Schmidt had no right
to remain and no legitimate expectation of remaining. Had there
been an attempt to exclude him before the expiration of his permit
then, it was suggested. the duty to act fairly would have prescribed
a hearing in defence of the legitimate expectation that he would be
permitted to remain in the country for the duration of his permit.
It seems that a very limited duty to act fairly may occur where,
short of the circumstances creating a legally binding estoppel against
a statutory authority, some promise or undertaking may not be
broken except where a reasonable opportunity is given for any
objections or other representations, beyond which that promise or
undertaking may be broken.
C. THE RULE AGAINST BIAS

The first of the principles of natural justice, nemo debet esse judex in
propria causa, stipulates that no man can be a judge in his own cause.
The rule against bias applies:
8 [1968] 3 All ER 795.

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(a) where there is some direct interest in the matter to be

adjudicated; and
(b) where, short of a direct interest, there is some reasonable
suspicion, appearance or likelihood of bias.
In the first case, there are a few problems for instance, where there
is direct pecuniary interest in the proceedings. In R v Hendon Rural
District Council ex parte Chorley,9 the court quashed the decision of a
rural district council to allow some residential property in Hendon
to be converted into a garage and restaurant. One of the councillors,
however was the estate agent who was acting for the owners and
he was present at the meeting which approved the application. A
certiorari issued on the ground that the agent’s interest in the business
disqualified him from taking part in the council’s consideration of it,
the evidence that he took no active part notwithstanding.
In the case of the more direct type of bias, the generally accepted
rule was ably stated by Lord Denning in Metropolitan Properties
Company (FGC) Limited v Lannon.10 He said inter alia, that:
“… in considering whether there was a real likelihood of bias, the court
does not look at the mind of the justice himself or at the mind of the
Chairman of the Tribunal … who sits in a judicial (or quasi-judicial)
capacity. … The court looks at the impression which would be given to
other people. Even if he was as impartial as he could be, nevertheless if
right-minded persons would think that, in the circumstances, there was
a real likelihood of bias on his part, then he should not sit. And if he does
sit, his decision cannot stand … Surmise or conjecture is not enough.
There must be circumstances from which a reasonable man would think
it likely or probable that it would, or did, favour one side unfairly at the
expense of the other …”
In the Metropolitan Properties case, the court quashed the decision
of a Rent Assessment Committee by which the rent of certain flats
was reduced. The solicitor chairman of the committee lived with
his father and had dealt with disputes between the father and his
landlord, a company which was a member of the group of companies
to which Metropolitan Properties belonged.
9 [1933] 2 KB 696.
10 [1968] 3 All ER 304.
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The question of when a judicial officer is disqualified to sit in

judgment in a particular case is one of the most intricate and delicate
problems in judicial administration. The basic rule was stated in the
United States Supreme Court in Re Murchison11 thus:
“A fair trial in a fair tribunal is a basic requirement of due process. Fairness
of course requires an absence of actual bias in the trial of cases. But our
system of law has always endeavoured to prevent even the probability of
unfairness. To this end, no man can be a judge in his own case and no
man is permitted to try cases where he has an interest in the outcome.
That interest cannot be defined with precision. Circumstances and
relationships must be considered … such a stringent rule may sometimes
bar trial by judges who have no actual bias and who would do their very
best to weigh the scales of justice equally between contending parties.
But to perform its high function in the best way ‘justice must satisfy the
appearance of justice.”
Nobody, nevertheless, supposes that a judge with one inclination or
another is unable to sit as an “impartial” judge. A bias, if it is to be
a disqualification, must mean something more than an ideological
bent. If it meant no more, the creation of the bench before which
cases could be tried or appeals could be argued would indeed
become difficult if not wholly impossible. Judges are shaped by:
“the predilections and the prejudices, the complex of instincts and
emotions, which make the man … The great tides and currents which
engulf the rest of men do not turn side in their course, and pass the
judges by.”12
In an American case Eisler v United States13 the trial judge, a former
Justice Department Attorney, was challenged because he was said
to have had close links with the Federal Bureau of Investigations,
to have participated in planning legislation aimed at communists,
and to be acutely antagonistic towards communists as a group. The
defendant, a communist, was accused of having committed a passport
fraud.The court held, that the views ascribed to the judge was in no
way focused upon the defendant and hence were not disqualifying.
11 349 US 133, 136.

12 BN Cardozo, The Nature of the Judicial Process, 1870-1938. New Haven,Yale University
Press (1921) at 167-168.
13 Eisler v United States 170F 2d 273 (DC CIR 1948); Cert dism 338 US 883.
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Whatever the judge’s feelings about communists, he could still fairly

consider whether a particular communist had perpetrated a fraud.
This case could be looked at in contradistinction to the case of
Berkshire Knitting Mills v National Labour Relations Board,14 which
called into question the attitude of member, Smith who had joined
in finding the company guilty of unfair labour charges. Before
the NLRB case had begun, and while the company was involved
in a strike, Smith, had allegedly suggested to a department store
executive the possibility of boycotting the company’s products.This,
the reviewing court declared,“goes far beyond a general predilection
either for or against labour organisations” a predilection that would
clearly not have been cause to disqualify Smith. In this case, if Smith
had indeed been so aggressively concerned about this particular
company’s labour difficulties, he had already thrown his weight
on the other side and this constituted a focused bias in advance of
the hearing.
D. RIGHT TO BE HEARD
Kenyan Courts have acted very strongly on the issue of the right to
be heard. In the case of David Onyango Oloo v Attorney-General15 the
Judge Nyarangi JA said:
“there is a presumption in the interpretation of statutes that the rules of
natural Justice will apply …”
As already stated, in the Onyango case, the Commissioner of
Prisons purported to deprive him of remission to which he was
entitled under the Prisons Act (Chapter 90) Laws of Kenya. Before
purporting to deprive Onyango of his statutorily earned remission,
the Commissioner of Prisons did not hear him. That was such an
obvious violation of the rules of natural justice that we do not see
how else any one could justify.
In the English case of The King v Wandsworth Justices ex parte
Read,16 the Court quashed a conviction whereby the defendant
justices had convicted the applicant without hearing his evidence,
14 121F 2d 235 (3d Cir 1941).

16 [1941] 1 KB 281.
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and relied only on the Prosecution’s documentary evidence without

the same being produced in Court.
E. PRIOR NOTICE
The first requirement of the rule is that adequate prior notice should
be given of any charge or allegation. In this respect, it was held in
Fairmount Investments Limited v Secretary of State for the Environment,17
that there was no notice given to the owner of the building. In other
cases, the facts may suggest that the substance of a charge or allegation
is, in fact, known to the plaintiff so that the absence of any further
information thereon does not amount to a breach of the rules.
Prior notice must actually be served to the relevant party. The
notice must contain sufficient detail to enable the person concerned
to know the substance of any charge, allegation or action to be taken
against him. The above view was upheld by Nyarangi JA in the
Onyango case18 when he held that:
“The Commissioner (of Prisons) … At the very least … ought to (have
done) the following acts:
1. inform the appellant in writing in a language the appellant
understands the disciplinary offence he is alleged to have
committed and the particulars of the offence;
2. afford the appellant an opportunity to be heard in person and to
fix reasonable time within which the appellant (or an inmate)
must submit his written answer …”
In the court’s view, it is only by granting an opportunity that the
commissioner would be said to have acted fairly in justifying his
refusal to grant the appellant, a prisoner serving a 5 years sentence,
remission, earned under section 46(1) of the Prisons Act.19
A tribunal is expected to inform the affected party of what
it proposes to do. Notice is expected to put the party in a state
of awareness. In Glynn v Keele University20 it was held that the
17 [1976] All ER 865.

18 Supra, note 15.
20 [1971] 1 WLR 487.
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expulsion of the plaintiff student from residence at the University

without notifying him of any charges was a breach of the rules of
natural justice. The charge against the affected party must be stated
accurately and with particularity so that he can know exactly what
he is charged with. He must also be told the time and place where
the tribunal will sit. The notice must give an individual a reasonable
amount of time. So that he can prepare his defence. Notice must be
given any time proceedings against a person are to take place.
F. THE OPPORTUNITY TO BE HEARD

There should be a reasonable opportunity for a person’s case to be
heard. It was stated by Lord Lorebum in Board of Education v Rice21
that the respective parties must be afforded a fair opportunity to
put their case and to correct or contradict any relevant prejudicial
statement.
There is no settled rule as to whether the hearing should be
oral or written, but in all cases one must be afforded a chance
whether oral or written to present his case. If a statute provides that
summons should be given the courts interpret this to mean that an
oral hearing is implied. In East African Community v Railway African
Union (Kenya) and others22 the court was emphatic that the hearing
need not be oral.
The general position has been that where the charges may lead
to serious consequences, the more the court’s demand that oral
evidence be given by the person affected. The accused is free to
waive the right in some cases.23
The requirement of the opportunity to be heard can apply
where an issue relates to the rights or other interests of one party.
Although there is no general obligation for oral hearing if it is
granted, it is generally required that the case of both parties shall be
heard and decided by the same person.24
21 [1911] AC 179.
22 [1973] EA 529.
23 Hanson v Church Commissioners [1978] QB 823.
24 Jeffs v New Zealand Dairy Production and Market Board [1966] 3 All ER 863. See also
David Oloo Onyango v Attorney-General civil appeal number 152 of 1996; R v KPTC
miscellaneous application number 869 of 1995.
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The requirement for oral hearing also impresses upon the

authority to give an applicant a hearing, where it (the authority) is
minded to make an adverse decision because it does not believe the
account given by the applicant.25 The requirement will also afford a
reasonable opportunity to persuade in the same way as it will avail
rights of adequate consultation on the part of the applicant.26
In the case of decisions taken in the name of a minister within
the Government, there is no right to be heard by the person taking
the decision or to know his identity. An inquiry may be conducted
by one of the minister’s agents in the department/ministry, but
the ultimate decision may be taken by another member of the
department or ministry. The common law exclusion of the right
to be heard before taking a decision in the name of a minister
is considerably modified by contemporary legislation prescribing
rights to be heard before the minister’s agent at a statutory
public inquiry.27
Subject to statutory procedures, administrative agencies
(including statutory tribunals and inquiries) in complying with the
rules of natural justice are not required to adopt and observe the
various technical rules of evidence associated with courts of law.
Accordingly, it will not be contrary to natural justice when hearsay
evidence is accepted.28
G. DISCLOSURE OF INFORMATION
The information here is that which the decision - maker will rely
on to make judgment. All the allegations and reports bearing on the
accused’s case must be disclosed. Failure to do so is fatal.
25 As per Laws J in R v London Borough of Hackney ex parte Decordova (1985) 27 HLR

108, See also R v Uxbridge Justices, CT paid Hewaid-Mills [1983] 1 WLR 56.
26 Hoffman-La Roche and Company and Attorney-General v Secretary of State for Trade and
Industry [1975] AC 295 per Lord Diplock at 368D-E:
“… It is the duty of the commissioners to observe the rules of natural Justice in
the course of their investigations … they must act fairly by giving to the person
whose activities are being investigated a reasonable opportunity to put forward facts
and arguments in justification of his conduct of these activities before they reach a
conclusion which may affect him adversely.”
27 R v Attorney-General and others (supra); Local Government Board v Ariidge [1915] AC 120.
28 Miller v Minister of Housing and Local Government [1968] 2 All ER 633.
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In Kanda v The Government of Malaya29 the Privy Council

quashed the conviction of Kanda, who was an Inspector of Police, by
the Police Commissioner on the ground that he had not been given
the opportunity to see the report of the inquiry into his conduct
which was submitted to the investigating officer four days after the
commencement of his trial.
H. ADJOURNMENT
Wrongful refusal to adjourn amounts to a denial of a fair hearing.
This was spelt out in Priddle v Fisher and Sons.30 A heating engineer
was dismissed from work. He made a claim for redundancy payments
but this was refused. He appealed and made arrangements to attend
the hearing and to be represented by the trade union. On the hearing
date, the trade union representative fell ill so he could not attend;
the engineer was prepared to appear in person but he could not
travel due to heavy snow. He telephoned the tribunal and informed
it about this. The tribunal went ahead with the case. The court held
that the circumstances of the case demanded that the tribunal should
have adjourned in favour of the applicant.
If under the circumstances it is impossible for the accused
person or his representative to attend the hearing, then natural
justice demands that the case be adjourned in order to enable the
person to attend.
I. CROSS-EXAMINATION
Cross-examination is only availed where there is an oral hearing.
The affected party should ask for an opportunity to cross-examine
opposing witnesses. If they fail to demand that opportunity, they are
precluded from complaining.
J. GIVING REASONS
Neither Courts of Law nor administrative or domestic tribunals are
under any duty to give reasons for their decisions, but progressively,
Courts insist on the giving of reasons as a component of natural justice.
29 [1962] AC 322.
30 [1968] 1 WLR 1478.
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The trend is towards including the duty to give reasons as an

aspect of the fair hearing rule. Some Court decisions have made it
mandatory that an agency gives reasons for its decision. Lord Reid
in Padfield v The Minister for Agriculture, Fisheries and Food31 said:
“I cannot agree that a decision cannot be questioned if no reasons are
given.”
K. LEGAL REPRESENTATION
The right to representation by a lawyer or other person may prove to
be a part of natural justice in a suitable case, but this is not yet clearly
established. In cases concerning non-statutory domestic tribunals,
representation may be allowed. Although legal representation may
be excluded in disciplinary proceedings at a forum domesticum like
University disciplinary committees or school disciplinary committees
constituted by Board of Governors. However, it is to be emphasized
that it is a fundamental right which must not be taken away lightly.
L. EFFECT OF BREACHES OF NATURAL JUSTICE

The effect of a failure to comply with the rules of natural justice
is that any decision or other administrative action is null and void.
Breach of natural justice has always been a good ground for review.
In the case of statutory administrative agencies, there may also be an
appeal available within the statutory scheme or rules of the agency.
Until a decision is declared null and void by the court, it may
have some existence in law.32 But the courts will always frustrate
actions founded on decisions tainted by breaches of principles of
natural justice. Failure to comply with natural justice may be made
good by fresh hearing, leading to a legally valid decision.
The Legal fate of a decision arrived in disobedience to the
rules of natural justice was stated in the case of David Oloo Onyango
v Attorney-General33 where Justice Platt relied on the decision in
Attorney-General v Ryan and cited Lord Diplock thus:34
31 [1968] AC 997.
32 Per Lord Wilberforce in Calvin v Carr [1979] 2 All ER 440.
33 Supra, note 15.
34 Supra, note 4 at 730.
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“It has long been settled law that a decision affecting the legal rights of
an individual which is arrived at by procedure which offends against the
principles of natural justice is outside the jurisdiction of the decision
making authority.”
M. CONCLUSION
It is clear that natural justice occupies an important place in the
realm of Judicial Review; “a fortiori” failure to observe its tenets
renders a decision null and void.
CHAPTER FOUR
THE PRINCIPLE OF DISCRETION
SYNOPSIS
A. Introduction
B. Judicial Discretion
C. Executive Discretion
D. Delegation of Authority
E. Exclusion of Judicial Review
F. Final Clauses
G. Exclusive Remedies for Specific Wrongs
H. Discretionary Enforcement
I. Ultra vires Exercise of Discretion
J Non Exercise of Discretion
K. Improper Exercise of Discretion
L. Principle of Reasonableness
M. Conclusion
A. INTRODUCTION
Discretionary power is a controversial issue and has been challenged
in many court decisions. This is because by its very nature, it
involves exercise of high standard of objectivity and impartiality
by the person/authority upon whom power is bestowed. Most
discretionary powers are arguably, unfettered, basically to give the
wielder of power latitude to exercise its duty without much restraint.
Discretion is a right to act in certain circumstances and within
given limits and principles on the basis of one’s judgment and
conscience.1 It is arguable that legal power, as opposed to duty, is
inevitably discretionary to a greater or lesser extent but the nature
of discretion itself and the standards upon which the courts insist
1 LB Curzon, Dictionary of Law (4 ed) London: Pitman, 1988 at 120.

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in order that it may be exercised in a proper and lawful way in

accordance with the presumed intentions of the legislature that
conferred it may vary from case to case.
An element which is essential to the lawful exercise of
discretion, and indeed all powers, judicial or administrative, is that
it should be exercised by the authority upon whom it is conferred,
and by no one else. The principle is strictly applied, even where it
causes administrative inconvenience, except in cases where it may
reasonably be inferred that the power was intended to be delegated.
The proper authority may share its power with someone else, or
may allow someone else to dictate to it their wishes or instructions.
The effect then is that if the discretion conferred by Parliament is
exercised by the wrong authority, the resulting decision is ultra vires
and void.2
B. JUDICIAL DISCRETION
Classical constitutional puritans appeared to posit that wide
discretionary power was incompatible with the rule of law3. But in
the words of Wade:4
“… this dogma cannot be taken seriously today, and indeed it never
contained much truth. What the rule of law demands is not that wide
discretionary power should be eliminated, but that the law should be
able to control its exercise. Modern government demands discretionary
powers which are as wide as they are numerous. Parliamentary draftsmen
strive to find new forms of words which will make discretion even
wider, and Parliament all too readily enacts them. It is the attitude of the
courts to such seemingly unbounded powers which is perhaps the most
revealing feature of a system of administrative law.”
The first requirement is the recognition that all power has legal
limits. The next requirement no less vital, is that the courts should
draw those limits in a way which strikes the most suitable balance
between Executive efficiency and legal protection of the citizen.
Courts have refused to countenance arbitrary power and unfettered
2 HWR Wade and C Forsyth, Administrative Law, (7 ed) 358.

3 See AV Dicey, Law of the Constitution, (9 ed) ECS Wade London, Macmillan, 1939
at 202.
4 HWR Wade: Administrative Law, (5 ed) Oxford University Press 1982, at 347.
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The Principle of Discretion 51
discretion. Paradoxically, the process of ensuring proper exercise of

discretion is itself discretionary - judicial discretion.
Judges are naturally inclined to use their discretion when a plea
of breach of natural justice is used as the last resort of a claimant. But
such should not be allowed to weaken the basic principle that fair
procedure comes first, and that it is only after hearing both sides that
the merits can be properly determined.
The remedies, for instance, that are available in natural justice
cases – certiorari, prohibition, mandamus – are discretionary.The court
has power to withhold them as it thinks fit. Such a discretionary
power may make inroads upon the rule of law, and must therefore
be exercised with the greatest care. In any normal case the remedy
accompanies the right. But the fact that a person aggrieved is entitled
to a remedy ex debito justitiae (as a matter of right) does not alter
the fact that the court has power to exercise its discretion against
him. Distinctions may have to be drawn according to the nature
of the remedy sought, and according to the differences between
public and private law remedies. The primary purpose of certiorari
and prohibition, for instance, is for preservation of order in the legal
system and preventing excess and abuse of power, rather than the
final determination of private rights. If certiorari is refused in exercise
of discretion, the applicant is not barred from disputing the legality
of the administrative decision in other proceedings.
It is also important to note that where appeal lies only on a point
of law, an appeal against an exercise of discretion by a tribunal should
succeed, only where the decision is vitiated by unreasonableness,
self-misdirection, irrelevant consideration or some other legal error.
The leading principle on the exercise of the Court’s discretion
is that the discretion is intended to be exercised to avoid injustice or
hardship resulting from accident, inadvertence, or excusable mistake
or error, but is not designed to assist a person who has deliberately
sought, whether by evasion or otherwise, to obstruct the course
of justice.
One of the leading authorities on the exercise of judicial
discretion is the celebrated case of Mbogo and another v Shah.5
5 [1968] EA 93.
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This case though not one of Judicial Review, is germane. The

respondent was knocked down and injured by a vehicle which was
owned by the first appellant and driven at the time by the second
appellant. The respondent notified the insurance company of the
vehicle that he intended to hold that company liable to compensate
him, and he served it with a notice under the Insurance (Motor
Vehicles Third Party Risks) Act, section 10(2)(a). The company
in correspondence denied liability. The company’s advocate,
however, refused to accept service of the proceedings filed by
the respondent against the appellants and service was effected by
advertisement. No appearance was entered and no defence was
filed and the respondent obtained ex parte judgment against the
appellants, which the insurance company then applied to set aside.
Its application was refused by the High Court and it appealed.
The Court of Appeal dismissed the appeal saying, inter alia that in
the circumstances, the judge exercised his discretion properly to
refuse the application to set aside the judgment. In the words of Sir
Clement De Lestang VP:
“I think it is well settled that this court will not interfere with the exercise
of discretion by an inferior court unless it is satisfied that its decision is
clearly wrong, because it has misdirected itself or because it has acted on
matters on which it should not have acted or because it has failed to take
into consideration matters which it should have taken into consideration
and in doing so arrived at a wrong conclusion.”6
In the same case, Sir Charles Newbold said:
“… a Court of Appeal should not interfere with the exercise of the
discretion of a judge unless it is satisfied that the judge in exercising
his discretion has misdirected himself in some matter and as a result
has arrived at a wrong decision, or unless it is manifest from the case
as a whole that the judge has been clearly wrong in the exercise of his
discretion and that as a result there has been injustice.”6a
It is evident from the two quoted passages that the grounds upon
which judicial discretion shall be interfered are those upon which
the orders of Judicial Review shall be granted.
6 Ibid, at 94.
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The Mbogo case has been quoted with approval in the case of
Uhuru Highway Development Limited v Central Bank of Kenya and
others6a7 where Akiwumi JA said:
“In my view, the learned judge exercised his discretion properly and in
accordance with the correct legal principles in setting aside the (ex parte
injunction) and in dismissing the application for injunction. He cannot be
criticised on any of the grounds contained in the foregoing holding in
the Mbogo case.”
In appropriate cases the improper exercise of judicial discretion has
led to the quashing of decisions through certiorari. In the case of RN
Shampole Group Ranch Limited v Nguruman Limited,8 Shampole Group
Ranch instituted an application for the orders of the certiorari to quash
the judgment and proceedings in the judgment and proceedings
in the civil case number 15 of 1991 of the Resident Magistrate’s
Court at Narok. In the plaint before the Resident Magistrate’s
Court, Nguruman Limited, the plaintiff had pleaded that it was the
registered owner of Land Registration number Narok/Nguruman/
Kamorora 11 and that the members of Shampole Group Ranch had
entered with their livestock to graze, threatened the chairman and
workers of the farm and cut down trees in preparation for permanent
occupation.The court in its ruling granted an injunction against the
defendants and ordered the officers of the Shampole Group Ranch
to pay a fine of KShs 6 000 each or serve a jail term of three months
for contempt of court.
In its application in the High Court, Shampole Group Ranch’s
main ground was that as the dispute involved trespass to land, the
learned magistrate had no jurisdiction to hear the dispute by virtue
of section 9A(1) and (2) of the Magistrate’s Court Act (Chapter 10)
Laws of Kenya. Another ground was that the value of Shampole’s
land exceeded the monetary jurisdiction of the Resident Magistrate’s
Court, which ‘ipso facto’ had no jurisdiction to hear and determine
6a Ibid, at 96.
8 Miscellaneous civil application number 930 of 1993. See also civil appeal number
75 of 1998 between Central Bank of Kenya v Uhuru Highway Development Limited and
others, where Justice R Kwach criticised the High Court Judge for exercising his
discretion wrongly.
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the suit.The court while quashing the proceedings and consequential

order of the Resident Magistrate stated:
“A certiorari will issue from the High Court to quash the determination
of inferior courts and tribunals if such a body has exceeded or acted
without jurisdiction or has failed to act fairly or in accordance with rules
of natural justice or for an error of law on the face of the record or where
determination was produced by fraud, collusion or perjury.”
Judicial discretion nevertheless is not limited to acts of judicial
officers. Parliament may enact a law that requires the administrative
authority concerned to act judicially in giving its decision. Indeed, it
is a position in law, which has since been discarded, as was illustrated
in Re An Application by Evans Maina.9 Maina was employed at Nairobi
Airport as Deputy Director of Operations. An allegation was made
against him that he had assaulted one partner, a Preventive Officer
of Customs Department, thereby committing an offence against
the East African Customs and Transfer Tax Management Act.10 The
Chief preventive officer at Nairobi Airport prepared a charge with
a note:
“You are required to appear before the Collector of Customs in the
office of Chief Preventive Officer on Thursday, the 26 November 1968
at 10:00am to answer the charge.11 (In fact it was the Commissioner
of Customs that was given power by section 174(i) of the Act to deal
with such offences by summarily ordering the offender to pay a fine not
exceeding two hundred shillings. But the case was argued as if the act
had been done by the Commissioner himself).”
Maina consulted his advocate who then applied for adjournment
of the hearing because on the fixed date of 26 November, he had
another case in the High Court. The request for adjournment was
9 Miscellaneous cause number 7 of 1969 (Supreme Court of Kenya). See also Sheikh
Brothers Limited v Members of Control of Hotels Authority [1949] 23 (2) KLR; Rex v
Electricity Commissioners [1924] 1 KB 171;This position was adopted in Mirugi Kariuki
v Attorney-General miscellaneous appeal number 70 of 1991.
10 The offence was one of obstructing an officer of customs while in the execution of
his duties contrary to section 142(4)(d) of the Act.
11 In fact, it was the Commissioner of Customs who was given power by section 174(i)
of the Act to deal with such offences by summarily ordering the offender to pay a
fine not exceeding two hundred shillings. But the case was argued as if the Act had
been done by the Commissioner himself.
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not considered and Maina received a letter from the Principal

Collector of Customs who stated:
“… I am satisfied that an offence was committed... and penalty of KShs
150 is imposed.”
Maina then applied for an order of certiorari to quash the above order
of the Principal Collector of Customs,12 arguing that the “audi alteram
partem” (right to be heard) rule of natural justice had been infringed
in that judgment had been pronounced without his being heard.
The argument advanced against certiorari was that the order had
been given in the exercise of a “purely administrative function” so
that there was no obligation to give Maina a hearing.This argument
was in fact seeking aid in the traditional view that the duty to observe
the rules of natural justice only arises where a judicial function is
performed. This view requires a court before deciding whether to
quash a decision of an administrative authority (by certiorari) to decide
whether the authority was acting administratively or judicially or
quasi-judicially. In Maina’s case, the Supreme Court of Kenya had no
difficulty in finding that the order against the applicant was given
in the exercise of a judicial jurisdiction. The Principal Collector of
Customs was dealing with a man charged with an offence triable by
a first class Magistrate.13 It was obvious that the exercise of power
under section 174 was a judicial function and therefore certiorari
would issue.
The legal solution to many administrative disputes inevitably
involves judicial discretion. Public authorities have power to
regulate other controls, and confer upon individuals benefits and
impose burden upon them. Courts become relevant in these matters
by determining by the permitted extent of the exercise of Powers.
In some instances, Parliament has not provided for any appeal and so
the courts step in and exercise their residual controlling powers to
safeguard the rights and interests of aggrieved parties.
The courts endeavour to ensure that decisions made on political
or other grounds conform to the law and that certain basic standards
12 He also applied for an order of mandamus to command the principal collector of

customs to hear and determine the matter according to law.
13 Vide 164 of the East African Customs and Transfer Tax Management Act of 1952.
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of fair procedure are observed. In reviewing administrative decisions

the courts must ensure that Acts of Parliament are complied with.
The extent of judicial control depends on a variety of factors: the
power in question and its statutory context; the agency in whom the
power is vested; the existence of means of appealing from a decision;
and the effect of a decision on the individual who seeks a remedy
in the court.
C. EXECUTIVE DISCRETION
Judicial Review has always been treated as an arm of administrative
law and this has necessarily been so because Judicial Review is meant
to keep administrative excesses in check. A first approximation to a
definition of administrative law is to say that it is the law relating
to the control of governmental power. The governmental power in
question refers to the powers of public authorities and these are
subordinated to the law.
All subordinate powers have two inherent characteristics.
First, they are all subject to legal limitations: there is no such thing
as absolute or unfettered administrative power. Secondly, and
consequentially, it is always possible for any power to be abused.
The primary purpose of administrative law, therefore, is to keep
the powers of the government within their legal bounds, so as to
protect the citizens against their abuse. It is also the concern of
administrative law to see that public authorities can be compelled to
perform their duties.
Most of the things that administrative authorities are empowered
to do involve the exercise of discretion; decisions have to be made
in the public interest, based on policy. The rules about judicial
control of discretion fall into two classes. First, the discretion given
by Parliament must be protected. It must be exercised by the proper
authority only and not by some agent or delegate; it must be
exercised without restraint and as the public interest may from time
to time require. Secondly, discretion must not be abused. A minister,
for instance, may act within the apparent limits of his statutory
powers, but still he may act for wrong motives or on irrelevant
considerations or arbitrarily or unreasonably.
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Courts intervene not only to prevent powers being exceeded

but also to prevent them being abused. The justification for this is
that the exercise of a discretion for an improper purpose or without
taking into account all relevant considerations is regarded as failure
to exercise the discretion lawfully.
The exercise of discretion comes into play when rights of
persons come into question. It has all to do with delegated legislation.
Thus, as stated earlier, discretion must be exercised by that authority
upon whom it is conferred. Moreover, the province within which
the discretionary powers are exercisable are pre-determined by the
legislation.
It would appear that the test Courts use to determine the
propriety of an executive or administrative exercise of discretionary
is whether the complainant has some interest or right, or, as Lord
Denning stated:
“Some legitimate expectation, of which it would not be fair to deprive
him without hearing what he has to say.”14
Be that as it may, in the Kenya National Examination Council v R
ex parte GG Njoroge and others,15 the Court of Appeal held that
Courts cannot issue orders to limit discretion, or to specify how the
discretion is to be used. Only an order of certiorari can issue after the
decision has been made if there is improper exercise of discretion.
D. DELEGATION OF AUTHORITY
The most fundamental essential of power lawfully bestowed upon a
person or a body is that it should be exercised by the person or the
body upon whom it is bestowed. The principle that power should
be exercised by lawful authority is to be strictly applied to ensure
that it is not abused. Therefore, the improper composition of a body
will negate its decision as will the purported exercise of authority by
an improper person or body.
Regarding the composition of bodies, it has been said that the
participation of extraneous persons will render the resulting decision
14 Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66.

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null and void. This was recognized as early as the year 1891 in the
English case of Lane v Norman.16 The essence of ensuring that the
decision is arrived at by a properly constituted body is to guard
against abuse of power. The decision of a disciplinary committee for
example, is likely to be invalid if any non-member of the committee
has taken part in its proceedings.
Delegation of authority is acceptable as long as the enabling
Statute permits such delegation. For instance, the Local Government
Act17 allows local authorities to make by-laws. An Act of Parliament
may also allow a minister to make rules. It may also allow a committee
to make rules as in the case of section 81 of the Civil Procedure
Act18 which allows the Rules Committee to make rules which are
in conformity with the Act.
Once authority has been delegated, the delegate should not
delegate. This is the essence of the principle delegatus non potest
delegare. The significance of this principle is that a delegate whose
mandate is governed by delegated authority does not possess the
legal capacity to delegate that right and therefore if it purports to do
so, its actions will be bereft of legality.
The legal effect of improper delegation is to render a decision
of the delegate invalid. This was judicially recognised in the English
case of Allingham v Minister for Agriculture, Fisheries and Food19 where
under the wartime legislation, local committees were empowered
to direct farmers to grow specified crops on specified fields. A
committee decided to order eight acres of sugar beet to be grown
by a farmer but left it to the executive officer to decide on which
field it should be grown. The farmer concerned was prosecuted for
disobedience. He filed an application for Judicial Review on the
ground that the purported delegation of power to the executive
officer was improper. The court upheld the argument and said inter
alia that the body had no power to divest itself of authority and to
16 [1891] 66 LTR 83. See also Middlesex County Valuation Committee v West Middlesex
Assessment Area Committee [1937] Ch 361.
19 [1948] 1 All ER 780.
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confer the said authority to the executive officer. This decision has
been affirmed in subsequent cases.20
The import of the judicial position is that when a Statute
confers power upon a body, then unless there is an express provision
legitimizing delegation, any purported delegation will be improper
ab initio and any decision by the improperly appointed delegate will
be null and void.
E. EXCLUSION OF JUDICIAL REVIEW

Under Kenyan Law, an enabling Statute may expressly or by
implication exclude Judicial Review of administrative decisions.
The process of excluding Judicial Review is invariably effected
through ouster clauses. In practice, however, the mere fact that a
Statute expresses a particular decision to be final does not mean that
the court cannot inquire into the decision.
The modes of exclusion of Judicial Review take different forms.
Nevertheless, the judicial position is that to refuse review on the basis
of exclusion would undermine natural justice and therefore unless a
statute expressly provides that there shall be no recourse to certiorari,
mandamus or prohibition, the courts will normally proceed to review a
decision if it is necessary to do so. Some of the methods through which
Judicial Review jurisdiction has been interfered with are discussed
below. Necessarily great reliance and frequent reference is made to
English decisions which Kenyan Courts have cited with approval.
F. FINAL CLAUSES
A statute may contain a provision to the effect that the decision of
particular officer is final. If such a statute is interpreted literally, it
would mean that the aggrieved party is bound by the decision and
that no Tribunal or Court is entitled to go behind that decision
either by way of appeal or by way of review. This proposition has
been dismissed as untenable. In the case of Re Gilmore Application21
Lord Denning said inter alia that:
20 See Bernard v National Dock Labour Board [1953] 2 QB 16 at 18; Municipal Board of
Mombasa v Mohanlal Kala (1955) 22 EACA 319; and also Karia v Dhanani [1969] EA 392.
21 R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574.
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“… the remedy of ‘certiorari’ is of such fundamental significance that it

cannot be taken away by statute except in the clearest terms. He added
that when the word “final” is used in a statute it should be understood to
mean ‘without appeal’ and not ‘without recourse to certiorari’.”
The law as set down in the Gilmore case summarises the attitude
of the English courts regarding Judicial Review and underlies the
fact that courts are very reluctant to divest themselves of the review
jurisdiction; this proposition applies to Kenya albeit to a lesser degree.
The judicial position is that such finality relates to facts and
not law. By parity of reasoning therefore, it is true as in the case
of “certiorari” that the remedies of “mandamus” and “prohibition”
cannot be excluded except in the clearest terms. Indeed, it is proper
to argue that the word “final” in relation to an administrator’s
jurisdiction does not mean that the aggrieved party has no recourse
to law even if there is an error on the face of the record.
(I) “… NOT TO BE QUESTIONED IN ANY LEGAL PROCEEDINGS

WHATSOEVER.”
The inclusion of the above words in a statute will not necessarily
exclude Judicial Review. This received judicial recognition in the
English case of Smith v East Elloe Rural District Council22 where
Viscount Simonds addressing his mind to the contents of a statute
which purported to oust Judicial Review said inter alia that there is
in fact no justification for the introduction of limiting words such as
“if made in good faith”; and further that there is no reason for doing
so when these limiting words have the effect of depriving the express
words which in this case “in any legal proceedings whatsoever” of
their full meaning and effect.
Although the words of Viscount Simonds do not clearly
demonstrate the full effect of such words, his reasoning can best
be understood against the general background of the tenets of
natural justice and the fact that the legislature cannot legislate in
a manner designed to preserve the efficacy of a particular decision
notwithstanding that it is against the principles of natural justice or
characterised by an error on the face of the record.
22 [1956] 1 All ER 855.

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(II) “IF THE MINISTER IS SATISFIED”

Quite often Parliament uses words which seem to put it entirely
in the minister’s or an authority’s discretion whether or not to take
an administrative decision. In such cases the concerned authority
is likely to interpret the excluding words rigidly with a view to
ousting judicial enquiry.
In Kenya, an order of certiorari may be issued by the courts where
they consider that the decision under attack was reached without,
or in excess of jurisdiction or in breach of natural justice, or was
contrary to law.23
“If it appears to the authority” approach does not necessarily
mean that the authority’s decision is put beyond challenge. The
scope available to the challenger depends on the subject matter
dealt with. If the authority does not act in good faith or if it acts
on extraneous considerations which ought not to influence it, or
if it plainly misdirects itself in fact or in law, it may well be that the
court would interfere. If the authority honestly takes a view of the
facts or the law which could reasonably be entertained, then its
decision is not to be set aside simply because thereafter someone
thinks that its view is wrong. In the English case of Congreve v
Home,24 Office it was held that the minister ought to give good
reasons to justify revocation of a licence which had been pre-paid.
Failure to comply with the conditions of the licence or issue of a
stale cheque could be good grounds to justify such revocation. If
the licensee had done nothing wrong, then the minister could not
revoke the licence.
(III) “IF THE AUTHORITY IS SATISFIED...”

Satisfaction of the authority must be based on reasonable grounds
and relevant consideration. So far as “satisfied” is concerned, it is
suggested that once the authority said that it was “satisfied”, its
decision could not be challenged in the courts unless it was shown
to have been made in bad faith.Thus, if it is apparent that satisfaction
23 PO Kadamas v Municipality of Kisumu [1982-88] 1 KAR 838.

24 [1976] 1 All ER 697.
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was vitiated by mala fides, unreasonableness and non-application of

mind, then the court ought to overturn it.25 The Kenyan courts
have often taken a softer stand in giving a wider meaning to such
unfettered discretion.This was quite apparent in R vThe Hon Attorney-
General and others26 where it was held that there is no obligation on
the minister to conduct an inquiry in exercise of his discretion. In
the Liversidge v Anderson27 Pre-World War II decision, Lord Atkin was
of the opinion that in all cases, it is plain that unlimited discretion is
given to (the Secretary of State), assuming as everyone does that he
acts in good faith.
It is important to note that satisfaction of the individual authority
depends on the circumstance of each case i.e. it depends on the
matter about, which the (Secretary of State) has to be satisfied. If
he is to be satisfied on the matter of opinion, that is one thing. But
if he has to be satisfied that someone has been guilty of the same
discreditable or unworthy unreasonable conduct, that is another. But
most vital, he should give the party affected notice of the charge of
impropriety or unreasonableness and a fair opportunity of dealing
with it. He must direct himself properly in law. He must also exclude
from his consideration matters which are irrelevant to that which
he has to consider and the decision to which he comes must be one
which is reasonable in this sense.
If the above are seriously wanting, the court ought to interfere
and set aside such improper decision. Such is the duty of the court
to jealously guard the interests and rights of the citizens. It is on the
same perspective that duty is cast upon public bodies to exercise
their discretionary powers. Breach of those duties will invite the
court’s intervention. These duties include the following:
(a) Duty to consider exercising the power: this involves
application of the mind to make a rational and well founded
decision.
(b) Duty to understand the power: the public authorities
have often fallen victims of erroneous assumption that
25 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014.
27 [1942] AC 206.
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they have absolute discretion.This erroneous assumption is

untenable and courts will not countenance it.
(c) Duty not to delay: this includes not only delay as
abdication of duty, but delay which tends to frustrate
legislative purpose as well as that which is irrational.
(d) Duty to inform itself: good sense enjoins a public body
to take cognisance of all relevant issues before making a
decision.
(e) Duty to grapple with relevant material: this is a
requisite duty especially where the public authority is
required to be satisfied before exercising discretionary
powers. In it is the duty of a public body to explore all the
material evidence and to make findings of fact.
(f) Duty to act reasonably: Lord Wrenbury in the celebrated
English case of Roberts v Hopwood28 could not have said it
better when he remarked that a public authority clothed
with discretionary powers:
“… must exercise its discretion upon reasonable grounds … A discretion
does not empower a man to do what he likes merely in the exercise of
his discretion but what he ought. In other words he must... ascertain and
follow the course which reason directs.”
(g) Duty to promote the legislative purpose: discretion
must be exercised according to law and hence must be
used to advance the purposes for which it was conferred.
It has to be used to promote the policy and objects of the
Act. The authority exercising the discretion must be well
versed with the statute, its scope and object.29
(h) Duty to act in good faith: in exercising discretionary
as in exercising any other administrative function, (the
authority) owes a constitutional duty to perform it fairly
and honestly, and to the best of its ability.The public body’s
satisfaction should not be vitiated by mala fides.
(i) Duty to act fairly: the discretion, although wide,
cannot be construed to be absolute. It cannot be exercised
arbitrarily without regard to natural justice.
28 [1925] AC 578.
29 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
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G. EXCLUSIVE REMEDIES FOR SPECIFIC WRONGS

The other category of ouster clauses is found in statutes which
provide exclusive remedies to specific wrongs. In other words, a
statute may contain a provision prescribing a definite remedy and by
implication ousting the granting of another remedy. However, the
review jurisdiction is considered too important to be extinguishable
by the mere presence of a prescribed remedy. Indeed, it has been
argued that it should remain for the court to invoke its review
jurisdiction when the interests of natural justice dictate. This was
well summarised by the words of Lord Reid in Ridge v Baldwin30
when he noted:
“There are many cases where two remedies are open to an aggrieved
person. But there is no general rule that by giving some other tribunal
the right to adjudicate over such a matter puts the powers of the courts
out of application in such a matter thereby precluding the court from
adjudicating over the said matter.”
H. DISCRETIONARY ENFORCEMENT
In requiring statutory powers to be exercised reasonably, in good
faith and on correct grounds, the courts work within the bounds
of the principle of ultra vires. Offending acts are condemned simply
for the reason that they are unauthorised. The court assumes that
Parliament could not have intended to authorise unreasonable
action, which is therefore ultra vires and void.
I. ULTRA VIRES EXERCISE OF DISCRETION

Throughout administrative law, concern is with the exercise of
legal power; that is acts which if valid, themselves produce legal
consequences. Courts of law have nothing directly to do with
mere decisions of policy. Such decisions have no legal impact until
statutory powers are conferred or invoked. But as soon as parliament
confers some legal power it becomes the business of the courts to
see that the power is not exceeded or abused.
30 [1963] 2 All ER 66.

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In attempting to discover the intention to be imputed to

Parliament, the court must pick its way between conflicting
presumptions. On the one hand, where Parliament confers power
upon some minister or other authority to be used in discretion,
it is obvious that the discretion ought to be that of the designated
authority and not that of the court. On the other hand, Parliament
cannot be supposed to have intended that power should be open to
serious abuse. It must have assumed that the designated authority
would act properly and responsibly, with a view to doing what is
best in the public interest and most consistent with the policy of the
statute. It is from this presumption that the courts take their warrant
to impose legal bounds on even the most extensive discretion.31
It is, however, unrealistic for the law to insist that Public
Authorities should operate strictly within the express limits of
the statutory powers. The courts in examining the propriety of
discretionary acts should have regard to the authorities being
permitted to do all those things which are implied or are incidental
to the express statutory powers.This is because it is clearly impossible
for Parliament to legislate for every detail which is likely to arise
from the exercise of such powers.
J. NON EXERCISE OF DISCRETION

It is self-evident that the court’s decision rests on the principle that
public authorities must not contravene the law by acting in excess
of the powers which Parliament has conferred on them32, since if
the action in question is found to be ‘intra vires’ the court has
no power to interfere. The same result is attained in some cases
by saying that, where a decision is bad for unreasonableness, the
authority has failed to exercise its discretion at all. Lord Denning
MR attempted to focus on this aspect of non-exercise of discretion.
In the case of Attorney-General v Independent Broadcasting Authority,33
his attempt was extended to throwing open the door to the public-
spirited citizens wishing to prevent a breach of the law by a public
31 HWR Wade, supra, note 4 at 352.

32 Per Lord Greene MR in Associated Picture Houses Limited v Wednesbury Corporation
[1948] 1 KB 223 at 234.
33 [1973] QB 629.
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authority. He opined that if the Attorney-General refused leave in

a proper case, or his machinery worked too slowly, an offended or
injured member of public could in the last resort apply to the court
himself. Bodies are not entitled simply to surrender or ignore their
powers and duties.
K. IMPROPER EXERCISE OF DISCRETION

There are many cases in which an authority has been held to have
acted from improper motives or upon irrelevant considerations. In
such cases, the authority has jurisdiction to exercise the discretionary
powers, but in as much as it acts within its bounds. An illustration
of this is the case of R v Electoral Commission of Kenya34 where the
Court held that:
“… the court would be perfectly entitled to intervene where it is alleged
that the discretion is not being exercised judicially, that is to say, rationally
and fairly and not arbitrarily, whimsically, capriciously or in flagrant
disregard of the rules of natural justice.”
L. PRINCIPLE OF REASONABLENESS
English and Kenyan laws provide no universal obligation for reasons
to be given for administrative actions. The existence of any legal
obligation to give reasons for administrative action can only be
discovered by a perusal of particular Acts of Parliament or regulations
made under such Acts.
The principle of reasonableness or the duty of a public authority
to base decisions on reasonable grounds emanates basically, where
exercise of discretionary powers is concerned. It is true that public
authorities acts must be governed by statutory provisions. But even
in those statutes, provisions are enacted to enable the authority to
act in various unforeseen exigencies.The intention of the legislature
should always be discerned by the courts to give practical meaning
to the law.35
34 Miscellaneous appeal number 18 of 2002.

35 See R v Kenya Posts and Telecommunications Corporation High Court miscellaneous
appeal number 861 of 1995.
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There are times when Acts of Parliament confer powers on

public authorities to act in judicial or quasi-judicial capacities. When
this is the case, the authorities have an obligation to give reasons
for their acts and/or decisions. It is mandatory that such reasons be
reasonable in the circumstances of the case.There are, however, cases
where reasons will not be given by the public authority; foremost,
of course is where the statute conferring the power dispenses with
it. In such cases, it is still not open to the authority to act arbitrarily
and capriciously. Secondly reasons may be refused on grounds of
national security. The security issues must however be clear, for it is
not enough to state so. Reasons may also be refused to any person
not primarily concerned with the decision where such reasons,
if furnished, would be contrary to the interests of any person
primarily concerned.
The most important purpose of giving reasons is to enable the
individual concerned to know the basis of a decision so that he can
effectively challenge that decision either by way of appeal or review,
as the case may be. Reasons therefore will be of interest for a variety
of purposes in order to show how the facts and evidence, if any, were
treated; together with the relevant law in relation to its application
to the issues in the case. In this regard, Megaw J stated in the English
case of Re Poyser and Mills Arbitration36 that:
“Parliament having provided that reasons shall be given … (means) that
proper, adequate reasons must be given; the reasons that are set out …
must be reasons which not only will be intelligible, but also can reasonably
be said to deal with the substantial points that have been raised.”
The question of reasonableness of a decision was also extensively
discussed in the case of R v Kenya Posts and Telecommunications
Corporation37 where the Kenyan postal body took unilateral decision
requiring all subscribers to pay their bills by bankers cheques. Pall J,
took issue with the Corporation and observed that:
“it is unfair and unreasonable that due to inefficiency of the corporation
and simply because there are some bad eggs among the vast number
of subscribers, the majority of subscribers of good standing should be
36 [1964] 2 QB 467.
37 High Court miscellaneous appeal number 869 of 1995.
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indiscriminately put to the inconvenience and humiliation which the

corporation’s decision will inherently cause.”
He approved the English decision of Lord Greene MR in Associated
Picture Houses Limited v Wednesbury Corporation,38 where it was
said that:
“if a decision on a competent matter is so unreasonable that no reasonable
authority could have ever come to it, then the courts can interfere.”
The foregoing brings us to the vital question of what constitutes the
standard of reasonableness. In the words of Wade and Forsyth:39
“unreasonableness is a generalised rubric covering not only sheer
absurdity or caprice, but merging into illegitimate motives and
purposes, a wide category of errors commonly described as irrelevant
considerations and mistakes and misunderstandings which can be classed
as self misdirections or addressing oneself to the wrong question.”
Various jurists have invariably tried to explain the standard of
unreasonableness. According to Lord Greene MR:
“it is that which is so absurd that no sensible person could ever dream
that it lay within the powers of the authority.”
In Secretary of state for Education and Science v Tameside Metropolitan
Borough Council,40 Lord Denning remarked that:
“it is that which is so wrong that no reasonable persons could take
that view.”
Reasonableness does not require reasons to be stated. The only
significance of withholding reasons is that if the facts point
overwhelmingly to one conclusion, the decision-maker cannot
complain if he is held to have had no rational reason for deciding
differently and that in the absence of reasons he is in danger of being
held to have acted arbitrarily.41
38 [1947] 2 All ER 680. See also Hellen Chronopoulos v AM Kassim Meia and others (1954)
EACA 177.
39 Supra, note 2 at 400.
40 [1977] AC 1014.
41 R v Secretary of State for Trade and Industry [1989] 1 WLR 5225.
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There is also a new school of thought propagated by the

European court of Justice. It is the principle of proportionality.
According to this principle, administrative measures must not be
more drastic than is necessary for attaining the desired result. A close
analysis of this principle shows its closeness with reasonableness.
They actually cover a common ground in several respects.
M. CONCLUSION
Discretion is an element in all power, as opposed to duty, so that
“abuse of discretion” could be made to include most of administrative
law. But it is more convenient to confine this rubric to a central
group of rules which are difficult to separate from one another. This
has the advantage of emphasizing the policy of the courts in the area
where they have come closest to sitting in judgment on the merit,
as such, of governmental actions and decisions.
It is also a feature of discretion that it is not absolute. It must be
exercised fairly, justly, reasonably and according to expectations of
good administration.
CHAPTER FIVE
LOCUS STANDI
SYNOPSIS
A. Introduction
B. Test for Locus Standi
C. Scope of Locus Standi in Kenya
D. Public Interest Litigation
E. Conclusion
A. INTRODUCTION
Ordinarily a declaration of some legal right will not be granted
by the court in respect of a voidable decision, where there is some
alternative statutory remedy, where the issue before the court is
purely hypothetical. This is what is technically called locus standi -
that is where the applicant for the declaration does not have the
requisite standing, status or interest in the issue before the court to
qualify for an award of the remedy.
Where an individual is directly affected by the decision or other
action of an administrative agency/public authority, she/he will
have locus standi and should be able to seek her/his remedy to what
she/he alleges to be an ‘ultra vires’ decision. This assumes, of course,
that the allegation can be established before the court and that other
requirements for the remedy sought, such as an order of certiorari to
quash, are present.
Cases involving such a direct interest in the issue before the
court do not usually raise any problems of locus standi, unlike those
where a person has a less than direct interest.
It has always been an important limitation on the availability of
remedies that they are awarded only to litigants who have sufficient
locus standi. The law is premised on the condition that remedies
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must correspond with rights and that only those whose rights are
infringed are eligible to seek remedies..1
It is on that premise that the courts are quick to look behind
the applicant at the earliest opportune moment to see the applicant’s
interest or right in the issue before it.
Judges have an instinctive reluctance to relax the rules about
locus standi. They fear that they may open the floodgates to busy
bodies who will swamp the courts with litigation.They fear also that
cases will not be best argued by parties whose personal rights are
not in issue. The foregoing has given way to the feeling that the law
must somehow find a place for the less directly interested and the
less directly affected citizens in order to prevent the illegalities in the
government and/or public service which otherwise no one would
be competent to challenge.
The introduction of statutory provisions for Judicial Review
has brought the issue of locus standi into sharp focus. It forms part
of the preliminary pre-requisites to enable the court entertain
a citizen’s grievance and/or to exercise its discretion. The Court
must seek to identify the nature of right infringed but it must not
overlook the fact that discretionary powers of public authorities
or in general administrative acts, if let loose and if left unfettered
without checks and balance can turn against the citizen and inflict
untold administrative inconvenience.
B. TEST FOR LOCUS STANDI

Judicial Review remedies are issued by the High Court in appropriate
cases at the instance of the applicant, who is the party aggrieved and
who also has locus standi. An applicant for Judicial Review must
satisfy, at the leave stage and sometimes at the substantive hearing,
the unique and flexible “sufficient interest” test of locus standi.
The court shall not grant leave unless it considers that the
applicant has a sufficient interest in the matter to which the
application relates.2 The essential idea is to exclude busy bodies.
1 HWR Wade and C Forsyth, supra, Chapter Five, note 2 at 696.

2 Rules of the Supreme Court Order 53, rule 3(7). See also Supreme Court Act of
1981 section 31(3).
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Locus Standi 73
A direct or personal interest in the decision should suffice. As to

whether a general interest is sufficient is a mixed question of law
and fact. It depends on the relationship between the applicant and
the complainant, with the court needing to consider the relevant
duties of the authority concerned, the complaint made and the
relief sought.
The guiding principle of the test of sufficiency of interest was
laid down in the House of Lords decision in R v Inland Revenue
Commissioners ex parte National Federation of Self-Employed and
Small Business Limited.3 In order to solve the problem of income
tax evasion by Fleet Street Casual Workers, the Inland Revenue
reached an “arrangement” requiring registration for future tax but
not investigating the past.The federation representing self-employed
and small-business tax-payers, applied by Judicial Review for a
declaration and mandamus, on the grounds that this “tax amnesty”
was unlawful.The Divisional Court and the Court of Appeal treated
standing as a “preliminary issue”. In upholding the two decisions
the House of Lords held that whilst the Revenue Authority was
amenable to Judicial Review, the Federation lacked standing and
had no prospect of showing illegality. It was further held that the
testing of the applicants standing must be based on legal and factual
context. The question of sufficient interest could not be considered
in the abstract or upon assumed facts.
In R v Inspectorate of Pollution ex parte Greenpeace Limited,4
Olton J said that the court had to take into account the nature of the
applicant, the extent of the applicant’s interest in the issues raised,
and the nature of the relief sought. On the latter case, if a mandamus is
sought, the court is more likely to hold the applicant has no standing
than if the primary relief is certiorari. In this decision, Greenpeace
Limited an environmental interest group of international standing,
was held to have no locus standi in relation to an issue involving the
discharge of radioactive waste.
The test on standing is thus made in a two-stage process. Firstly,
on the application for leave. At this stage, the test is designed to turn
3 [1982] AC 617.
4 [1994] 1 WLR 570; [1994] 4 All ER 329. See also R v Secretary of State for Employment
ex parte Equal Opportunities Commission [1995] 1 AC 1.
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away hopeless or meddlesome applications only. Secondly, when the

matter comes for argument, the test is whether or not the applicant
can show a strong enough case on the merits judged in relation
to his own concern with it. It may appear though that the second
stage has more to do with the merits of the case than with the
applicant’s standing.
The issue of locus standi also received good judicial recognition
in the English case of R v Secretary of State for Foreign Affairs ex parte
World Development Movement Limited5 in which it was held that:
“… Having regard to the merits of the challenge, the importance of the issue
raised, the likely absence of any other responsible challenger, the nature of
the breach of duty against which relief was sought, and the prominent
role of applicants, with national and international expertise and interest
in promoting and protecting aid to underdeveloped nations, in giving
advice … It was clear that the applicants had locus standi …” (emphasis
added)
The emphasised words would seem to be the probable considerations
that the court may take in determining the question outstanding.
The English law on locus standi has undergone transformation
and the courts have tended to depart from strict compliance of
requiring demonstration of rights recognisable by law. The courts
in recent years have been led to having regard to actio popularis with
regard to showing the existence of substantial default or abuse.
In tune with a liberalising trend, the courts will not readily allow
standing objections to thwart attempts to air matters which are
appropriate for consideration under the supervisory jurisdiction. In
the words of Lord Fraser,6
“But while the standard of sufficiency has been relaxed in recent years, the
need to have an interest has remained and the fact that Rules of Supreme
Court Order 53, rule 3 requires a sufficient interest undoubtedly shows
that not every applicant is entitled to Judicial Review as of right.”
Part of judicial restraint involves ensuring that disruption caused by
Judicial Review applications is kept within reasonable bounds. The
standing test affords reviewing courts an early opportunity to dismiss
5 [1995] 1 All ER 611.

6 Supra, note 3 at 645H.
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Locus Standi 75
challenges brought by time wasters. Speaking on the same issue of

relaxing technical standing restrictions, Lord Diplock said:
“To revert to technical restrictions on locus standi to prevent views that
were current 30 years or more (ago) would be to reverse that progress
towards a comprehensive system of administrative law that I regard
as having been the greatest achievement of the English Courts in my
judicial lifetime.”7
However, it is Rose LJ whose words express the current thinking on
the proper test of locus standi. In R v Secretary of State for Foreign Affairs
ex parte World Development Movement Limited,8 he said:
“It would, in my view, be a grave lacuna in our system of public law
if a pressure group, like the Federation, or even a single public spirited
tax-payer, were prevented by outdated technical rules of locus standi
from bringing the matter to the attention of the court to vindicate
the rule of law and get the unlawful conduct stopped. The Attorney-
General, although he occasionally applies for prerogative orders against
public authorities that do not form part of the central government,
in practice never does so against government departments. It is not,
in my view, a sufficient answer to say that officers or departments of
Central Government are unnecessary because they are accountable to
Parliament for the way in which they carry out their functions.They are
accountable to Parliament for what they do so far as regards efficiency
and Policy, and that Parliament is the judge; they are responsible to a
court of justice for the unlawfulness of what they do, and of that the
court is the only judge.”
Broadly, there is a view currently in vogue that there ought to be
different standing tests for different remedies. The fact that the same
words are used to cover all the forms of remedy allowed by the
rule does not mean that the test is the same in all cases. There is
a rule of common sense, reflecting the different character of the
relief asked for. For instance, it would seem obvious enough that the
interests of a person seeking to compel an authority to carry out a
duty is different from that of person complaining that a judicial or
administrative body has, to his detriment, exceeded its powers.
7 Ibid, at 641C-D. [1995] 1 AUER 611 at 618.

8 [1995] 1 All ER 611 at 618.
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C. SCOPE OF LOCUS STANDI IN KENYA

Under Kenyan Law, the legal basis upon which remedies for Judicial
Review are applied for is found in sections 8 and 9 of the Law
Reform Act9. The procedure for application is found in Order 53 of
the Civil Procedure Rules.
The application for Judicial Review is made in two stages. First,
there is the leave stage. In the second stage, a formal application
is made for the orders. At the leave stage the judge has to form, a
preliminary view as to the merits of the application, and in particular
to consider whether the applicant has the necessary locus standi and
that there has been no undue delay in coming to court for relief
against the decision of the administrative authority.
The courts in Kenya take the issue of locus standi as a preliminary
point. The matter of standing is taken to be logically prior and
conceptually distinct from the merits of the case. The courts have to
determine whether or not the applicants are mere busy bodies. But
no hard and fast rules have been drawn for this. Equally important is
legal capacity to sue as contradistinguished from having standing10.
The development of the jurisprudence of locus standi in Kenya
has taken more or less the path of the English Law on the same.
Previously, the courts applied a very rigid test of locus standi. For
instance in Wangari Maathai v The Kenya Times Media Trust.11
The plaintiff/applicant was the co-ordinator of the Green Belt
Movement; a movement which has protection of the environment
as its principal objective. The defendants planned to construct an
office complex within Nairobi’s Uhuru Park in Central Nairobi.
The plaintiff, being interested in environmental protection was
apprehensive that the intended construction and its size would result
in the destruction of the environment. She brought a suit seeking
an injunction to stop the intended construction. It was held that the
9 Chapter 26 of the Laws of Kenya. A further discussion on these provisions shall be

dealt with in Chapter Nine.
10 Innocent O Momanyi and others v Benson O Bosire and others High Court civil case
number 792 of 1997. See also R v AG and others High Court civil case number 572
of 1994 – where a distinction is given between having locus standi and having legal
capacity to sue.
11 High Court civil case number 5403 of 1989.
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Locus Standi 77
plaintiff/applicant had no locus standi and the suit was dismissed. In

dismissing the suit Dugdale J said:
“There is no allegation of damage or anticipated damage or injury. In
particular it is not alleged that the Defendant company is in breach of any
rights, public or private in relation to the plaintiff nor has the company
caused damage to her, nor does she anticipate any damage or injury.
It is well established that the Attorney-General can sue on behalf of
anyone else... The court finds that the plaintiff has no right of action
against the Defendant company and hence she has no locus standi.”
In an apparent departure from the rigid construction in the Maathai
case, Kenya’s judicial system has kept pace with the growing liberal
interpretation of locus standi and eradication of hitherto technical
standing restrictions. This judicial mood has been reflected in recent
judicial determinations12. In the case of R v Minister for Information
and Broadcasting and Ahmed Jibril ex parte East African Televisions
Network Limited (EATN).13 EATN Limited prayed to court by
way of Judicial Review for orders directed to the Minister for
Information and Broadcasting
(a) by way certiorari to remove into the High Court the decision
of the Minister cancelling the radio and TV licences issued
to it; and
(b) by way of mandamus to restore the TV and radio licences.
In dismissing a preliminary objection by the second respondent
alleging that the applicant had no locus standi, Khamoni J said:
“In law, each one of the parties in High Court civil case number 662
of 1998 is a legal person just as each one of the parties in the notice of
motion before me is. As such, each legal person is capable of suing and
being sued in a court of law independently of all the rest. Under Order
53 of the Civil Procedure Rules therefore, all that a legal person needs in
his involvement in proceedings or his being affected by proceeding from
which that legal person is aggrieved in matters where he has sufficient
interest. Provided such a legal person begins taking action against the
12 Innocent O Momanyi, supra, note 10; R v Kenya Posts and Telecommunications Corporation
miscellaneous application number 869 of 1995 and miscellaneous civil suit number
438 of 1995, Kenya Consumer Organisation and Mike Mills v Minister for Transport
Communication and others civil appeal number Nai 77 of 1997.
13 Miscellaneous civil application number 403 of 1998.
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proceedings by applying for leave not later than six months after the date
of the proceeding or such shorter times as may be prescribed by any Act
of Parliament and when leave is granted, to file the notice of motion
within 21 days from the date of leave, there are no other requirements
known to the relevant law for a legal person to have the locus.”
In a nutshell, Kenyan courts have moved with time and appear to be
applying sufficient interest as the test for locus standi.
D. PUBLIC INTEREST LITIGATION

The Public Interest Litigation is a concept that is at its formative
stage in the Kenyan judicial system. Public Interest Litigation has
developed in a country like India14 as a common law remedy
and in some commonwealth countries as an equitable remedy.
It presupposes the need to have the public authority perform its
statutory duty through the court’s declaration of the legal position.
It works under the premise that each and every citizen has a right to
question an illegality of an administrative locus standi act, and move
the court to declare that the act so complained of is illegal.
An applicant in a public interest litigation need not have locus
standi in the traditional sense in the subject matter.What is important
is to establish that there is an illegality.
The position in Kenya with regard to the concept of Public
Interest Litigation can best be seen in representative suits exemplified
in the case of Wangari Maathai v Kenya Times Media Trust15. This
case heralded the dawn of Public Interest Litigation in Kenya and
even though the High Court was to rule that Professor Maathai
lacked locus standi to bring the suit, the die had been cast. This case
thrust the issue of locus standi to the forefront of Judicial Review.
Cases that were to follow later indicated that our judicial system
had finally recognized that every responsible citizen has an interest
in seeing that the law is enforced; and that is sufficient interest in
itself to warrant his applying for certiorari or mandamus to see that it
is enforced.
14 The Indian Supreme Court has had occasion to act suo motu to challenge an arbitrary
provision of “The Terrorist And Disruptive Activities Act”.
15 Supra, note 11.
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Locus Standi 79
In R v Kenya Posts and Telecommunications Corporation,16 in a

notice of motion brought by Ian Hane as Chairman, Mike Mills
as Vice Chairman and Jonathan Leakey as Treasurer of Karen and
Langata District Association (KARENGATA), the applicants
applied for Judicial Review of the decision of Kenya Posts
and Telecommunications Corporation requiring all telephone
subscribers in Kenya to pay their telephone - bills either in cash or
by bankers cheque or bank guaranteed cheques or personal cheques
supported by a letter of guarantee from the bank or by cash deposits
equivalent to three months’ consumption. The applicants alleged
that the said decision had been made without jurisdiction under the
Kenya Posts and Telecommunications Corporation Act17 being ultra
vires section 63 of the Act.
They also sought an order of prohibition to prohibit the
corporation from insisting on the implementation of the said
decision as it was made and implemented irrationally and in excess
of jurisdiction. In finding for the applicants, the court held that the
Corporation’s decision would be tantamount to punishing many
subscribers because of the bad acts of a few. The court held that the
Corporation and the subscribers were presumed to have adopted
that the subscribers were entitled to pay their telephone bills by their
personal cheques and it had become the corporation’s contractual
obligation not to arbitrarily refuse accepting their personal cheques
without any good reason/18
The Kenyan judicial pronouncement, would seem to echo the
English judges in holding that it would be a grave lacuna in our
system of public law if a pressure group, or even a single public
spirited taxpayer were prevented by outdated technical rules of
locus standi from bringing a matter to the attention of the court to
vindicate the rule of law and get an unlawful conduct stopped.
It is a characteristic of public interest litigation, at least in Kenya,
that most of it is brought by organizations on behalf of their members
16 Miscellaneous application number 869 of 1995.

18 See also Innocent O Momanyi and others v Benson O Bosire and others supra, note 10; Kenya
Consumers Organization and Mike Mills v Minister for Transport and Communications and
others miscellaneous civil suit number 438 of 1995.
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and the public at large. Sometimes the intended beneficiary may not
in the first instance be the public in general; but having regard to the
nature of the relief sought, the whole public gets a reprieve.
Public Interest Litigation is still in its infancy and it is difficult
to expound more on it. Suffice it to say that it is an important tool
in the correction of administrative wrongs. But before it can do that,
it has to fight the hurdles of technical rules relating to institution
of suits.
E. CONCLUSION
Judicial Review of administrative action is so fundamental that
courts view with great disdain any attempts to curtail its invocation.
This has led to a renaissance whereby the courts have opted to go
easy on applicants and have adopted a fairly liberal test of locus standi
which is the starting point for any review action.
CHAPTER SIX
ESTOPPEL
SYNOPSIS
A. Introduction
B. Restriction of Estoppel
C. Estoppel and Government Policy
D. Judicial Review and Estoppel
E. Conclusion
A. INTRODUCTION
The doctrine of Estoppel is based on the principle that a person
who by some statement or representation of fact causes another to
act to his detriment in reliance on the truth of it is not allowed to
deny it later, even though it is wrong.1
The doctrine, in response to public authority actions, applies
where an officer or other representative of an administrative agency:
(a) makes an adequate statement of fact or fact and law;
(b) which is within the officer’s or other representatives
delegated or other lawful authority;
(c) where the person dealing with that officer or representative
relies on the statement to his detriment.
Thus where the above requirements are satisfied, the administrative
agencies will be bound by and cannot deny the validity of the
officer’s statement. In other words, the administrative agency will be
“estopped” from acting contrary to its previous representations, to the
detriment of a person dealing with such agency. It should be noted at
the onset that the doctrine applied to statements and representations
as opposed to decisions. For instance, where a decision is made by a
delegate officer acting within his jurisdiction in local government,
that decision is legally the council’s. Where the officer makes a
1 HWR Wade, supra, Chapter Four, note 4 at 232.

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statement or representation short of a decision, for example to the

effect that no licence is required for a particular activity or that a
person is entitled to a grant for a particular purpose, these are the
circumstances in which common law estoppel may apply.
The English Court of Appeal must have had the above in mind
when it gave its authoritative decision in Lever Finance Limited v
Westminster London Borough Council.2 In this case, a planning officer
working for the local planning authority indicated to an architect in
a telephone conversation that the resiting of a house shown on plans
for which planning permission had been granted was an ‘immaterial
variation’ not requiring a fresh planning permission. After the
building work was begun, the planning Authority threatened to
serve an enforcement notice requiring the unlawful construction to
be discontinued owing to lack of planning permission.The company
applied successfully to the Court of Appeal for a declaration that
they were entitled to complete the house on the amended site, and
for an injunction to restrain the service of the enforcement notice.
Lord Denning observed:
“If the Planning officer tells the developer that a proposed variation is
not material, and the developer acts on it, then the planning authority
cannot go back on it …”
In the same context, a public authority which lets land on lease
is bound by the rule that acceptance of rent with knowledge of a
breach of covenant by the tenant amounts to waiver of the lessor’s
right of forfeiture for the breach.3
B. RESTRICTION OF ESTOPPEL
It would appear that the Kenyan courts having regard to the English
heritage of its laws would reluctantly find estoppel against an
administrative agency.4 The Courts certainly have a great deal of room
for manoeuvre in this respect in determining whether, for example,
any representation was ‘adequate’ or any reliance ‘detrimental’. It is
always possible that a person quite innocently relies on a statement or
2 [1971] 1 QB 222.
3 Davenport v R [1887] 3 AC 115. See also R v Paulson [1921] 1 AC 271.
4 Brooks and Bur-ton Limited v Secretary of State for the Environment [1977] 1 WLR 1294.
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Estoppel 83
representation by an officer of an administrative agency only to find

that in law there is no estoppel against that authority, it is not bound
by the officer’s statement.That person, having suffered some loss, will
find that legally, there is no remedy. This would be a considerable
gap in law which would be well filled if the law recognised that
damages were available for an ultra vires act or statement.
The court’s attempt to limit the scope of application of estoppel,
in local government at least, came out in the English case of
Western Fish Products Limited v Penwith District Council5 where it was
emphasised that an estoppel cannot be raised to prevent the exercise
of a statutory discretion or to prevent or excuse the performance of
a statutory duty.
The principle is that a public authority could not be estopped
from exercising its duties and powers; except:
(i) where the public authority had statutory power to delegate
functions to its officer and there were special circumstances
to justify the applicant in thinking that the officer thus had
power to bind the authority by an irrevocable decision.
(ii) where the authority waives a procedural requirement
relating to some application made to it, whereupon it may
be estopped from relying on the lack of formality.
The only acceptable solution, therefore, is not to enforce the law
but to compensate the person who suffered the loss by acting on a
ruling from the ostensibly proper official. If the ruling leads to the
erection of a house without planning permission, and the planning
authority thinks its wrong to give permission, the house should be
demolished and the builder should be compensated, in the same way
as when a valid planning permission is revoked and compensation is
paid for abortive expenditure.6
The giving of wrong rulings by officials is maladministration
and this is the correct basis for redress. It is on all accounts better
than manipulating the law so as to uphold acts which are ultra vires
or contrary to the public interest, in an attempt to make two wrongs
into a right. It is true that many people have to rely on legal or other
5 [1978] 77 LGR 185.

6 Lever Finance Limited v Westminster (City) London Borough Council [1971] 1 QB 222.
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advice which may prove to be wrong, but there is a special claim to

redress where loss is caused by a wrong ruling from a government
authority on whose guidance the citizen is entitled to rely.
The second exception related to situations where an officer
or the public authority represents that there is no requirement for
compliance with an inconsequential procedural requirement.Where
the officer indicates that a mandatory requirement may be waived,
ultra vires statement could not be binding on the administrative
agency in question.
C. ESTOPPEL AND GOVERNMENT POLICY

The role of a welfare Government cannot be over-emphasised.
Instances of administrative activities based on the interest of the
citizens than by principle or the Government’s attempt to live to
the expectation of the citizens or basically the day to day running of
the Government are phenomena we all come across. The foregoing
notwithstanding, it is important to briefly examine the relationship
between Government Policy and Estoppel. Rather the question
would be, can the principle of estoppel be applied by the Courts to
the detriment of the Government in the implementation of policy.
The role of the Government in affecting the lives of individuals
changes from time to time. Regard will be had to the particular
individual or group of individuals affected, in what way he/they are
affected and whether detriment, if any can be compensated. But the
most important thing is that the interest of majority, as opposed to
minority, except in special circumstances, is taken into consideration:
(a) when the Government is effecting its policies; and/or
(b) when the Court is considering the question of estoppel
vis-a-vis an administrative act.
D. JUDICIAL REVIEW AND ESTOPPEL

The Doctrine of Estoppel must be prevented not only from
enlarging the powers of public authorities illegitimately; it must also
be prevented from cramping the proper exercise of their discretion.
The basic principle of estoppel is that a person who by some
statement or representation of fact causes another to act to his
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Estoppel 85
detriment in reliance on the truth of it is not allowed to deny it

later, even though be wrong. Justice here prevails over truth.
In public law the most obvious limitation on the doctrine
estoppel is that it cannot be invoked so as to give an authority
power which it does not in law possess. In other words, no estoppel
can legitimate action which is ultra vires. It follows therefore that
wrongful assertion of estoppel attracts the same censure as a body
that acts ultra vires and therefore amenable to Judicial Review.
Another limitation the doctrine is that the principle of estoppel
does not operate at the level of government policy.This is because the
rules must give way where their application becomes incompatible
with the free and proper exercise of an authority’s powers or the
due performance of its duties in public interest. A public authority,
furthermore, has a duty to act fairly and consistently. If it issues
contradictory and misleading rulings, this may amount to abuse of
discretion which the court can condemn. This may produce effects
very similar to estoppel.
E. CONCLUSION
The principle of estoppel is meant to ensure some degree of certainty
and consistency.Without this, it would be difficult to carry out daily
activities because many such activities are based on promises or
representations of fact given by others.
It follows therefore that those who rely on those promises or
facts must be protected from harmful consequences of relying on
the same.
CHAPTER SEVEN
THE MODES OF ENFORCING JUDICIAL
REVIEW
SYNOPSIS
A. Introduction
B. Quo Warranto as a Mode of Enforcing Review
C. The Order of Mandamus as an Enforcement
D. Certiorari
E. Prohibition
F. Conclusion
A. INTRODUCTION
The new distinction between public law and private law is not
only important on remedies but it is of fundamental importance
in substantive law. These are different principles governing both
domains.” In public law, for instance, the central principle is that a
public authority must properly perform the public function legally
assigned to it. It must not exceed powers entrusted to it and/or
encroach into jurisdiction not assigned to it. By exceeding or
encroaching, it will have acted ultra vires. A citizen affected by such
excesses or encroachment has a right to move the court to declare
and enforce the law. If he succeeds, the court will quash the ultra vires
act. In private law on the other hand, the cause of action will arise
between the citizens themselves. It revolves around the obligation
of every man and the corresponding remedies attached to those
obligations. In his book, the Discipline of Law1 Lord Denning aptly
puts it that:
“in the law of torts … that a man should take reasonable care not to
injure his neighbour. If he does not do so, he is liable in damages by the
remedy of a writ or by an action.”
1 Lord Denning, The Discipline of Law; London, Butterworths 1982 at 133.

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It is to be noted that our concern is the enforcement of remedies

arising from ultra vires acts of public authorities. The individual who
wishes to defend, establish or assert his legal rights in the face of
administrative action usually has a right of doing so before a court of
law. The individual will usually move the High Court, by virtue of
its inherent power to review the legality of the action and decisions
of the administrative agencies and inferior courts.
The judicial remedies for ultra vires actions and decisions can be
enforced through the writ of quo warranto, the order of mandamus,
prohibition and certiorari. It should be noted that on a prosecution
for non-compliance with an administrative order, notice, licence or
some item of delegated legislation, it may be possible to raise what
is, in effect, a defence of ultra vires. This form of remedy would apply
equally to any civil enforcement where the contention would be
that there can be no breach of or non-compliance with something
which does not exist in law, i.e. which is ultra vires.
Mandamus, prohibition and certiorari, are still often referred to as
prerogative writs. They are no longer writs, but orders, and no longer
granted in the exercise of any prerogative but in pursuance of
statutory authority. A certain convenience attaches to the terms since
the origins of, and a substantial part of the authorities pertaining to
the statutory orders are to be found in the prerogative writs of the
English courts and the decided cases on them.
B. QUO WARRANTO AS A MODE OF ENFORCING REVIEW

In as much as quo warranto may appear to be a Judicial Review remedy,
it rarely is. It dates back to the early twelfth century, when the King
used it against the barons and other power seekers as a demand that
they show by what authority – quo warranto – they were exercising
the prerogatives of some office or enjoying the benefits of certain
franchise which the crown would avail at its discretion.
It developed through the centuries until at one point, it became
a criminal proceeding “to fine the usurper as well as to oust him
from office or franchise he had usurped”.2
2 W Blackstone; Commentaries on Laws of England, London, Dawsons, 1966 at 263.

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The Modes of Enforcing Judicial Review 89
Quo warranto is presently used in some jurisdictions in civil

proceedings to go behind the appointment of a public officer and
to ascertain his right to hold office. Examples of when a writ of quo
warranto would lie depend on the circumstance of each case, but
they range from when an elected official seeks to continue beyond
his term or when a de facto office holder takes over public functions,
to when an aspirant to an office or an unsuccessful candidate to a
public office has been irregularly and/ or unlawfully appointed.
It is to be remembered that the last stage in the evolution of quo
warranto in the English legal system culminated with the passing of
a statute3 to develop an injunction in the nature of quo warranto, to
prohibit the usurpation of a public office. The thrust of the statute
(now replaced by another one)4 was that where any citizen
“acts in an office to which he is not entitled and an information would
previously have lain against him, the High Court may restrain him by
injunction and may declare the office to be vacant... no such proceedings
shall be taken by a person who would not previously have been entitled
to apply for an information.”5
The consequence is that whereas the old law of quo warranto is still
substantively operative, it is basically enforced by injunction and
declaration. The procedure is similar to that of prerogative remedies
and must be sought by ‘applicant for an order of quo warranto must
establish a locus standi. Kenyan Courts have yet, to deal with matters
involving quo warranto but there is no reason why the Kenyan High
Court cannot entertain an action for quo warranto.
C. THE ORDER OF MANDAMUS

Mandamus derives from the Latin word “Mandare” meaning to
command. It issues in cases where there is a duty imposed by statute.
It compels the fulfillment of a duty where there is lethargy on the
part of a body or officer.
Mandamus is invariably used to compel the performance of a
clear statutory duty on any occasion when the administrative agency
3 Administration of Justice (Miscellaneous Provisions) Act of 1938.

4 Supreme Court Act of 1981.
5 HWR Wade, Supra, Chapter Four, note 4 at 521.
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has plainly and unlawfully refused to undertake the duty at the

request of a citizen intended by Parliament to benefit from it. Like
other prerogative remedies, it is normally granted on the application of
a private litigant, though it may equally well be used by one public
authority against another.
Mandamus will also issue to compel enforcement of constitutional
duties. In Paul Imison v Attorney-General and others,6 the Court held
that there is nothing unconstitutional in subjecting the Attorney-
General to Judicial Review where he has failed to carry out his
public duties under the Constitution. The High Court through
section 123 of the Constitution has supervisory power over all
constitutional bodies in the exercise of their duties.
It is a discretionary remedy, which means that the court has full
discretion to withhold it in unsuitable cases. It has however not lost
the extensive scope which the courts gave it in the eighteenth and
early nineteenth centuries. But in the highly organized administrative
systems of the modem state, it has no longer this prominent role to
play. Present Government agencies respond more naturally to the
political stimulus, and the ultimate legal sanction has to be invoked
only in a handful of stubborn cases.
Mandamus can only be used in relation to a duty which, as a
public duty, is also specifically enforceable. Mandamus cannot be
used to enforce a general duty, the order cannot be used to enforce
the performance of a discretionary power.7 However, it should be
noted that a discretionary power could be found to be linked with
a duty and hence enforceable by mandamus.8
A breach or non-compliance with an order of mandamus amount
to contempt of court, punishable by fine or imprisonment9.
6 High Court miscellaneous civil application number 1604 of 2003.
7 In Kenya National Examination Council and Republic ex parte Geoffrey Gathenji Njoroge
and others civil appeal number 266 of 1996. Justices of Appeal Omolo,Tunoi and Shah
said regarding the powers of Kenya National Examination Council; The times and
frequency of the examinations are left to the discretion of the Council and it cannot
be forced by mandamus to hold an examination at any particular time in the year …”.
8 In the case of Daniel Nyongesa and others v Egerton University College civil appeal
number 90 of 1989 the Court of Appeal ordered the applicants results which in its
view were unlawfully withheld.
9 See R v Peplar Borough Council ex parte London County Council (number 2) [1922] 1
KB 95.
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Mandamus in that respect is akin to a mandatory injunction, both

being commands from the court that some legal duty be performed.
The difference is that whereas the latter is an equitable remedy
operating within the province of private law, the former is a common
law remedy used in public law.
Mandamus has acquired a more precise scope in recent times.
Modern government is mostly based on statutory powers and duties
vested in public bodies.The establishment of modem system of local
government in the nineteenth century and the provision of social
services in the twentieth century have drawn a clear distinction
between bodies and duties which are governmental and those which
are not. As the picture has come into focus, so is the proper and clear
sphere of mandamus.
The discretionary nature of the order of mandamus is a question
of fact, giving the courts the opportunity to act with due regard to
related aspects of legal principles. It may be refused to an applicant
who is guilty of laches, or in instances where a public authority has
done all that it reasonably can to fulfil its duty, or where the remedy
sought is unnecessary or is vitiated by mala fides.
The general trend adopted by the courts, it would appear, is
for an applicant, to succeed in an action for mandamus, he must
establish locus standi. It would be interesting to see whether or not
action alleging anticipated injury arising from a public office can be
maintainable but this is a moot issue in Kenya.
D. CERTIORARI
A prerogative order of great importance in the context of the
remedies available against administrative action, certiorari, which
in Latin means to be informed, removes proceedings from an
administrative agency or inferior court to a higher court to be
quashed on any one or more of the following three grounds:
The Modes of Enforcing Review:
(a) ultra vires action;
(b) breach of principles of natural justice; and
(c) error of law on the face of the record.
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The underlying effect is that the decision of some inferior tribunal

or authority is brought to the High Court in order that it may
be investigated. If the decision does not pass the above test, it is
quashed. This is based on the principle that all inferior courts and
tribunals have only limited jurisdiction or powers and must be
restricted within their legal bounds. Bodies that are amenable to
certiorari include:
(i) Administrative tribunals.
(ii) Inferior courts.
(iii) Local authorities.
(iv) Ministers of the Government.
(v) Miscellaneous statutory and non-statutory bodies
exercising public functions.
As a general rule, it can be said that certiorari applies to statutory
bodies performing public duties with an obligation to act judicially.
The duty to act judicially stems from a body’s legal authority to
make decisions or take action which affects the rights of subjects.10
Whereas certiorari applies to statutory bodies, it does not apply
to purely private, domestic organisations. Accordingly, the remedy
would not be available to challenge the legality of decisions of
trade unions and professional organizations, for example, where the
relationship between member and union or organization is based on
a privately concluded contract.
Again and for purposes of clarity, certiorari will lie to quash
decisions which are ultra vires and therefore void. Such decisions
are nullities in law and cannot be given any legal effect. Certiorari
will also lie to quash decisions which are intra vires but show error
on the face of the record. Such decisions are voidable and can be
given legal effect upon rectification of the apparent error. However,
courts will sometimes refuse certiorari to quash a patently ineffective
act. Finally, certiorari lies where principles of natural justice are
violated. Duty to give a hearing or failure to exercise impartiality
will call for certiorari.
10 See the cases of Michael Omole Ocharo and others and The Council of Legal Education
miscellaneous civil application number 917 of 1996 (UR). See also MS Suba and
others v Egerton University miscellaneous appeal number 157 of 1996 (UR).
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Locus standi is not a problem for the person directly affected

by some administrative decision or other action. However, in cases
involving third parties, reference has to be made to the requirement
of a “sufficient interest”. This view was held in The Matter of the Law
Society of Kenya and of Judicial Commission of Inquiry into Tribal clashes
in Kenya11 where Justice Hayanga in declaring that the Law Society
of Kenya had locus standi cited Denning MR in R v Greater London
Council ex parte Blackburn12 where he said:
“I agree it is a matter of High Constitutional principle that if there is good
ground for supposing that a government department or a local authority
[a statutory body] is transgressing the law or is about to transgress it, then
any one of those offended or injured can draw it to the courts... and
the courts in their discretion can grant whatever remedy is appropriate.
One remedy which is always open, by leave of the court is to apply for
prerogative writ (order) such as certiorari, mandamus, or prohibition.”
E. PROHIBITION
This remedy seeks to prevent ultra vires actions or actions offending
principles of natural justice pending a final decision by a statutory
agency exercising public functions with an obligation to act judicially.
Prohibition is an order of the High Court preventing or
prohibiting a body from acting. It lies against an inferior court,
tribunal, or administrative body in relation to decision affecting an
individual’s rights.
It developed side by side with certiorari as a control mechanism
imposed by the Court of King’s Bench. Primarily, it was used to
stop an inferior tribunal from doing something in excess of its
jurisdiction. Atkin LJ eloquently said13 of the distinction between
prohibition and certiorari:
“If the proceedings establish that the body complained of exceeding
its jurisdiction by entertaining matters which would result in its final
decision being subject to being brought up and quashed on certiorari,
11 High Court miscellaneous appeal number 141 of 1998 (Mombasa). See also Orie Rogo
Manduli v Attorney-General High Court miscellaneous appeal number 54 of 1999.
12 R v Greater London Council ex parte Blackburn [1976] 1 WLR 550.
13 R v Electricity Commissioners ex parte London Electricity Joint Committee Company
Limited [1924] 1 KB 171.
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I think that prohibition will lie to restrain it from so exceeding its

jurisdiction.”
It must be noted that prohibition lies against an administrative agency,
not on its performance as an administrative implementing agency,
but where duty is cast upon it to act judicially. In this context, the
principles of natural justice as well as rules of fair play in determining
what is just and right must be exercised by the judicial or quasi-judicial
inferior tribunal. Lord Denning MR famously said of prohibition:14
“It is available to prohibit administrative authorities from exceeding their
powers or misusing them.”
Wade15 aptly asserts that inasmuch as prohibition was used to
prevent tribunals from venturing into areas in which they had no
jurisdiction, it was equally used to prohibit the execution of some
decision already taken but ultra vires. He says:16
“So long as the tribunal or administrative authority still had some power
to exercise as a consequence of the wrongful decision, the exercise of
that power could be restrained by prohibition.”
The Kenyan Court of Appeal has on its part restated the law on
prohibition comprehensively in Kenya National Examination Council
v Republic ex parte GG Njoroge17 as follows:
“What does an Order of Prohibition do and when will it issue. It is
an Order from the High Court to an inferior tribunal or body which
forbids that tribunal or body to continue proceedings therein in excess
“of its jurisdiction or in contravention of the laws of the land. It lies not
only for excess of jurisdiction or the absence of it but also for a departure
from the rules of natural justice. It does not however lie to “correct the
course, practice or procedure of an inferior tribunal, or a wrong decision
on the merits of the proceedings, … it is said that prohibition looks
to the future so that if a Tribunal had to announce in advance that it
would consider itself not bound by the rules of natural justice the High
Court would be obliged to prohibit it from acting contrary to the rules
of natural justice. However, where a decision has been made whether
14 Ibid at 559.
15 HWR Wade, supra, Chapter Four, note 4 at 549.
16 Ibid.
17 Court of Appeal civil appeal number 266 of 1996.
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in excess or lack of jurisdiction or whether in violation of the rules of

natural justice an order of prohibition would not be efficacious against
the decision so made. Prohibition cannot quash a decision which has
already been made. It can only prevent the making of contemplated
decisions.”
In the case of Jared Benson Kangwana v Attorney-General,18 the Court
observed that an order of prohibition will issue even if there are
alternative remedies such as the applicant defending himself, appeal
after conviction, bail pending appeal or review by the High Court.
Prohibition will also issue under section 84(1) of the Constitution
as it was held in Stanley Munga Githunguri v R,18a which was approved
in Kamlesh Mansukhlal Pattni and another v R.19
Disobedience of a prohibition is punishable as contempt of
court. On the question of locus standi the impression created is that
the attitude is more liberal than in other remedies, almost certainly,
because the order is an interim remedy only.
F. CONCLUSION
The orders of mandamus, certiorari and prohibition are prerogative
remedies. They are called prerogative because they were originally
available only to the Crown (in England) and not to the subjects. By
obtaining orders of the court in the form of mandamus, certiorari or
prohibition, the Crown/State would ensure that public authorities,
carried out their duties, and that inferior tribunals kept within their
proper jurisdiction.

18a Criminal appeal number 271 of 1985.
19 High Court miscellaneous criminal case number 322 of 1999.
CHAPTER EIGHT
THE STATUTORY PROVISIONS UNDER
KENYAN LAW
SYNOPSIS
A. Introduction
B. The Law Reform Act
C. The Civil Procedure Act
D. Conclusion
A. INTRODUCTION
The law of the English prerogative writs remains the substantive law
by reference to which the High Court will issue the statutory orders
of mandamus, certiorari and prohibition.1 This is so in Kenya by virtue
of the Law Reform Act,2 particularly section 8. The Act effectively
brings into operation the English Law on Judicial Review and thus
the substantive body of law on the subject as at 1938.The procedure
for application for the prerogative orders is found in Order 53 of
the Civil Procedure Rules. These rules are those made by the Rules
Committee established under section 81 of the Civil Procedure
Act.3 Therefore, the Law Reform Act and Order 53 of the Civil
Procedure Rules, constitute the law on Judicial Review in Kenya.
B. THE LAW REFORM ACT

The birth of the prerogative orders in Kenya is traceable to the
Law Reform (Miscellaneous Provisions) Ordinance number 48
of 1956, which came into force on the 18 December 1956. The
effect of this statute was to replace writs with orders. In 1960, the
proviso to section 8(2) of the 1956 Ordinance was replaced by the
Law Reform (Miscellaneous Provisions Amendments) Ordinance
1 HWR Wade, supra, Chapter Four, note 4 Chapter 17.

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number 16 of 1960. The Proviso aforesaid provided that no order

of mandamus, prohibition or certiorari was to issue in any case
where the Supreme Court could make an order with a similar
effect under its power of review or revision contained in the Civil
Procedure Act4 or in the Criminal Procedure Code5. The 1960
amendment was revolutionary to the extent that it made it easier
for an aggrieved person to be granted an appropriate prerogative
order, the presence of an alternative remedy notwithstanding.
In 1966, by the Statute Law (Miscellaneous Amendments) Act
number 21 the word “crown”, hitherto present in the statute
was replaced with the word “Government” to reflect the changed
political circumstances.
The above changes notwithstanding, section 8 of the Law
Reform Act still recognises English law governing the old prerogative
writs as the guiding beacons with reference to which the High Court
of Kenya will issue prerogative orders.6 Section 8 of the Law Reform
Act reads thus:
“(1) “The High Court shall not, whether in the exercise of its civil or
criminal jurisdiction, issue any of the prerogative writs of mandamus,
prohibition or certiorari.
(2) In any case in which the High Court in England is, by virtue
of the provisions of section 7 of the Administration of Justice
(Miscellaneous Provisions) Act of 1938, of the United Kingdom
empowered to make an order of mandamus, prohibition or certiorari,
the High Court shall have power to make a like order.
(3) In any written law, references to any writ of mandamus, prohibition
or certiorari shall be construed as references to the corresponding
order, and references to the issue or award of any such writ shall
be construed as references to the making of the corresponding
order.”
4 Supra, note 3.
6 It should be noted that English Law has undergone fundamental changes. See for
instance Louis Blom-Cooper, “The New Face of Judicial Review. Administrative
Changes in Order 53” (1982, Summer) Public Law at 250-261. See also in O’Reilly
v Mackman [1983] 2 AC 237; Davy v Spelthorne BC [1983] 3 All ER 1124 and Roy v
Kensington FPR (1992) AUER 705.
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The Statutory Provisions under Kenyan Law 99
Section 7 of the English Act7 in turn provides that the High Court
in England can now make statutory orders in the cases that it could
formerly issue the prerogative writs. Thus, in Kenya the High Court
has power to make Statutory Orders in any case in which the
prerogative writs could formerly issue in England.
There is no right of appeal from the orders of mandamus, certiorari
and prohibition save as given by Statute. The Law Reform Act at
section 8(5) provides for appeal thus:
“Any person aggrieved by an order made in the exercise of Civil
Jurisdiction of the High Court under this section may appeal therefrom
to the Court of Appeal.”
Section 9 of the Law Reform Act then provides for the “Rules of
Court”. It states:
“(1) Any power to make rules of court to provide for any matters
relating to the Procedure of Civil Courts shall include power to
make rules of court:
(a) prescribing the procedure and the fees payable on
documents filed or issued in cases where an order of
mandamus, prohibition or certiorari is sought;
(b) requiring, except in such cases as may be specified in the
rules, that leave shall be obtained before an application is
made for any such order;
(c) requiring that, where leave is obtained, no relief shall be
granted and no ground relied upon, except with the leave
of the court, other than the relief and grounds specified
when the application for leave was made.
(2) Subject to the provisions of subsection (3), rules made under
subsection (1) may prescribe that applications for an order of
mandamus, prohibition or certiorari shall, in specified proceedings,
be made within six months, or such shorter period as may be
prescribed, after the act or omission to which the application for
leave relates.
(3) In the case of an application for an order of certiorari to remove
any judgment, order, decree, conviction or other proceedings
7 See Halsbury’s Statutes (3 ed) Volume 8 at 892-894.

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for the purpose of its being quashed, leave shall not be granted
unless the application for leave is made not later than six months
after the date that judgment, order, decree, conviction or other
proceedings or such shorter period as may be prescribed under
written law; and where that judgment, order, decree, conviction
or other proceeding is subject to appeal, and a time is limited by
law for the bringing of the appeal, the court or judge may adjourn
the application for leave until the appeal is determined or the
time for appealing has expired.”
It is pursuant to this provision that Rules have been made under the
Civil Procedure Act.
C. THE CIVIL PROCEDURE ACT

Section 81 of the Civil Procedure Act8 deals with establishment of
the Rules Committee. Subsection (1) provides thus:
“There shall be a Rules Committee consisting of two judges of the High
Court, a judge of the Court of Appeal, the Attorney-General and two
advocates, one to be nominated by the Law Society of Kenya and the
other by the Mombasa Law Society, which shall have power to make
rules not inconsistent with this Act and, subject thereto, to provide for
any matters relating to the procedure of civil courts.”
It was in the exercise of the powers conferred under the above cited
provision that the Rules Committee made Order 539 of the Civil
Procedure Rules which provides the procedure for seeking Orders
of Judicial Review – mandamus, certiorari and prohibition.
D. CONCLUSION
What emerges is that the Law on Judicial Review in Kenya is
primarily founded on sections 8 and 9 of the Law Reform Act
to which the procedural provisions found in Order 53 of the
Civil Procedure rules must conform. It is also clear that English
jurisprudence is germane in Kenya to the extent permissible under
the law.
8 Supra, note 3
9 The Provisions of Order 53 are dealt with in detail in Chapter Ten.
CHAPTER NINE
RECENT DEVELOPMENTS OF JUDICIAL
REVIEW IN KENYA
SYNOPSIS
A. Introduction
B. Legal Notice number 164 of 1992
C. Legal Notice number 5 of 1996
D. Conclusion
A. INTRODUCTION.
In Kenya, the remedies available upon an application for Judicial
Review remain the traditional ones, namely, certiorari, mandamus and
prohibition. The legal basis upon which those remedies can be issued
by the High Court of Kenya is found in sections 8 and 9 of the Law
Reform Act. Both sections provide for situations when the three
orders can be made by the High Court of Kenya.1 In this chapter the
recent legislative attempts at changing the character of the Judicial
Review are examined.
Order 53 of the Civil Procedure Rules governs the procedure for
applications for prerogative orders. As indicated earlier, the prerogative
orders that are issued under Order 53 are mandamus, prohibition and
certiorari.
B. LEGAL NOTICE NUMBER 164 OF 1992

On 9 June 1992 of the Rules Committee introduced Legal Notice
number 164 to amend the provision of Order 53 of the Civil
Procedure Rules.
To the casual observer, what necessitated and precipitated the
quiet change in Order 53 of the Civil Procedure Rules might not
be clear. However, to the keen observer, two things are clear; firstly,
1 Chapter 26 of the Laws of Kenya; supra, Chapter Eight.

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that our Order 53 is almost, if not, on all fours with Order 53 of

the Rules of the Supreme Court of England as they stood prior to
1977.2 Secondly, that in 1977 by virtue of delegated legislation,
Order 53 of the English Rules was amended to widen the scope of
Judicial Review3.
Although it may be argued that the change in Kenya was a
belated attempt at keeping pace with developments in England;
nevertheless, it cannot be gainsaid that the philosophy governing the
Rules Committee was also to widen the scope of Judicial Review.
The change, for what it is worth, came quietly through the
Rules Committee in exercise of the powers conferred on it under
section 81 of the Civil Procedure Act.The new rules were as follows:
THE CIVIL PROCEDURE (AMENDMENT) RULES OF 1992

1. These Rules may be cited as the Civil Procedure (Amendment)
Rules of 1992.
2. Order LIII of the Civil Procedure Rules is amended:
(a) By deleting the expression “ORDERS OF MANDAMUS,
PROHIBITION AND CERTIORARI” appearing as the heading
thereto and inserting “APPLICATIONS FOR JUDICIAL REVIEW.
(b) By deleting Rules 1 and 2 and inserting the following new
Rules:
(i) An application for an order of mandamus, prohibition
or certiorari shall be made by way of an application for
Judicial Review in accordance with the Provisions of
this Order.
(ii) (1) An application for Judicial Review shall be made
promptly and in any event within six months from
the date when the grounds for the applications
arose unless the High Court considers that there is
good reason for extending the period within which the
application shall be made.
2 Prior to 1977, Order 53 of the Rules of the Supreme Court of England Governed
the procedure for applications for prerogative orders and was traditionally headed
“Orders of Mandamus, Prohibition and Certiorari”. In 1977, this was replaced with the
heading “Applications for Judicial Review”; See Blom-Cooper “The New of Judicial
Review: Administrative Changes in Order 53, 1982 Summer, Public Law at 250.
3 S.I 1977 number 1955.
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Recent Developments of Judicial Review in Kenya 103
(2) Where the relief sought is an order for certiorari

in respect of any judgment, order, conviction or
other proceeding, the date when the grounds for
application first arose shall be taken to be the date
of the judgment, order, conviction or proceeding.
(3) Where the application is in respect of proceedings
which is subject to appeal and time is limited by
law for the filing of the appeal, the Judge hearing
the application shall adjourn the application until
the appeal is determined or the time for filling the
appeal has expired.
(c) In rule 3, by deleting paragraph (1) and inserting the
following new paragraph:
(1) The application for Judicial Review shall be made
by notice of motion to a Judge of the High Court
and there shall be at least eight clear days between the
service of the notice of motion and the day named
therein for the hearing.
The first change introduced by the amendment was the deletion
of the title of Order 53 which until then read “orders of mandamus,
prohibition and certiorari” and substitution of the same with the
heading “applications for Judicial Review”. The Argument advanced
for a similar change in England is that since the promulgation of
Order 53 of 1977 all the traditional methods of Judicial Review
of administrative action are subsumed under the single rubric of
an application for Judicial Review, leaving the Court to decide the
appropriate remedy.
In Kenya, the amended Order 53 permits, but does not
encourage for an omnibus application which does not specify the
Order sought; it was so held in National Democratic Union v Attorney-
General4. In the case the applicants (Chizombo and Mwasilwa) who
were officials of an unregistered party. National Democratic Union,
moved the Court praying for an order of Judicial Review directed
at the Attorney-General and the Registrar of Societies refusal to
register the party as a political party. In their ruling Justices Aluoch
and Couldrey said regarding the amended Order 53:

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“A search carried by us of the Supreme Court Rules indicates that our

new rule is based on the English Rules under Order 53, rule 3 to 6 and
rule 9. These refer to forms 86, 86(a) and 86(b). These forms refer to an
application for Judicial Review and require the applicant to set out the
grounds on which relief is sought. There is no mention of setting out
certiorari or mandamus. Our Civil Procedure does not mention Judicial
Review and that presumably is why the rules Committee decided that
an application for an order of mandamus, prohibition or certiorari should
be by way of Judicial Review... It seems to us that in this application the
applicant is seeking orders of certiorari and mandamus … The applicant
sets the ground on which relief is sought. They do not mention certiorari
or mandamus but do set out grounds which could, if established, entitle
the applicants to those remedies. With a great deal of hesitation we have
come to the conclusion that this is sufficient. In other words, we find that
under the new rule, where the application/or these Prerogative Orders must be by
Judicial Review, it is sufficient to set out the grounds which would or might entitle
the application to one or more of those Orders and it is not necessary to specify
which one is sought.” (emphasis supplied)
A second and most curious amendment to Order 53 is to be found
in rule 2(b), which deleted the old rules 1(1) and (2).5 The most
far reaching effect of this amendment was the removal of the
requirement for leave. What necessitated this complete pendulum
swing is difficult to fathom, because even with the changes in
England in 1977 and 1981 the leave stage however watered down is
still retained6. It can therefore be said that this was an innovation by
the Rules Committee actuated arguably by the politics of the day.
The effect of removing the leave stage is that all matters were
now to be canvassed at the hearing of the substantive application.
5 1. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless
leave therefore has been granted in accordance with this Rule. An application for
such leave as aforesaid shall be made ex parte to a Judge in chambers, and shall be
accompanied by a statement setting out the name and description of the applicant,
the relief sought, and the grounds on which it is sought, and by affidavits verifying
the facts relied on.The Judge may, in granting leave impose such terms as to costs and
as to giving security as he thinks fit.
6 Under new Order 53 of the Rules of the Supreme Court of England, every
application for Judicial Review is predicated upon leave granted ex parte by a
judge of the Divisional Court sitting in chambers. However, unlike the pre-1997
position, the application is nowadays in a simplified form containing a brief notice
with a statement together with an affidavit verifying the facts in the notice. Unless
an applicant desires, the question of leave will be determined by the judge on the
papers alone.
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Indeed, this was the position in Ambrose Otieno Weda v The Attorney-
General and The Principal Kenya School of Law7 where the question of
locus standi’ and all other matters were argued before two judges on
the hearing of the motion.
While the Rules Committee “shot down” rules 1 and 2 relating
to the application for leave it did not interfere with Order 53, rule
34(1) which requires the copies of the statement accompanying
the application for leave be served with the notice of motion. This
oversight or omission is difficult to understand and in our view is
indicative of lack of serious original thought on the part of the Rules
Committee and vouchsafes for the silent feeling that the change
was an attempt at “aping” the changes in England without fully
understanding the “philosophy” that dictated the said changes.8 It is
our submission that the leave stage is a fundamental sieving process
which grants the Court an opportunity of weeding out frivolous
and vexatious claims. In the words of Goulding J in Heywood v Hull
Prison Board of Visitors:9
“There are very good reasons (among them an economy of public time
and the avoidance of injustice to persons whom it is desired to make
respondents) for that requirement of preliminary leave.”
A third innovation of the new rules is to be found in Order 53,
rule 3(i). This rule now makes it explicit that a single judge shall be
competent to hear and determine an application for Judicial Review.
Prior to this, the practice was for leave applications to be heard by a
single judge and a substantive application for the Orders to be heard
by two judges.10
C. LEGAL NOTICE NUMBER 5 OF 1996

Less than two years after coming to life, Legal Notice number 164
of 1992 underwent strict scrutiny in the case of Kenneth Matiba
7 High Court miscellaneous civil case number 5 of 1993. This case was filed under the
procedure introduced by Legal Notice number 164 of 1992 and was therefore not
preceded by an application for leave.
8 [1980] 3 All ER 594.
9 Republic v Shampole Group Ranch and Nguruman Limited miscellaneous civil appeal
number 930 of 1993 (Githinji and Couldrey JJ).
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v Attorney-General,11 in this case, the applicant sought an order of

certiorari to remove into the High Court for purposes of quashing
a decision by the Attorney-General denying him permission to
bring into the country a foreign lawyer to represent him in an
election petition. The application was made under the amendments
introduced by Legal Notice number 164 and the applicant had not
sought leave as was mandatory prior to the amendment. In ruling
that the application was improperly before the court, the judges said,
with reference to the powers of the Rules Committee:
“Rules made pursuant to a statute are Subsidiary Legislation. They are
made under delegated power.A delegate’s power is confined to the objects
of the legislature. The main reason of delegation is that the legislature
itself cannot go into sufficient detail. So it makes a skeleton Act. The
delegate supplies the meat, thus the intention of the Legislature must
always be the prime guide to the meaning of the delegated Legislation.”
The Court guiding itself accordingly, narrowed its task to determining
whether the Rules Committee acted within its powers under
section 9(1) of the Law Reform Act in removing the requirement
of leave to apply for an order under the Act. The Court stated that
in making that determination it would be guided by the dictum of
Lord Campbell CJ in Liverpool Borough Bank v Turner12 where he said:
“It is the duty of Courts of Justice to try to get at the real intention of
the Legislature by carefully attending to the whole scope of the statute
to be considered.”
The Court thus guided, proceeded to find that the purported
amendment of Order 53 by Legal Notice number 164 of 1992 was
null and void to the extent of its inconsistency with section 9 of the
Law Reform Act. The three bench Court handed its ruling thus:
“We have carefully read and re-read the Provisions of section 9 of
Law Reform Act, as a whole. It is clear to us that Parliament envisaged
that an application for an order of mandamus, certiorari or prohibition
be commenced by an application for leave to bring the application. It
would be consequent upon the leave being granted that an application
would be brought. By doing away with the requirement for leave the

12 [1861] 30 LJ CL 379 at 380.
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Rules Committee was trying to shorten the procedure for obtaining

a remedy. That was laudable intention but they travelled outside the
scope of the powers delegated to it. Legal Notice number 164 of 1992
is therefore “ultra vires” the provisions of the Law Reform Act, in so far
as it does away with the requirements of leave to apply for an Order of
Judicial Review …”
The upshot of the above decision is that the court did not condemn
the whole Legal Notice number 164 but only those aspects of it,
which offended the parent Statute. After the finding in the Matiba
case, the Rules Committee moved to repair the damage by enacting
Legal Notice number 5 of 1996. This Legal Notice provided for a
return to the Pre-Legal Notice number 164 of 1992 position to the
extent that the changes introduced under it had been ultra vires the
provisions of the Law Reform Act. Following the amendments, the
affected parts of Order 53 now read as follows:
(a) by deleting rules 1 and 2 and inserting the following new
rules:
1 (1) No application for an order of mandamus,
prohibition or certiorari shall be made unless leave
therefore has been granted in accordance with
this rule.
(2) An application for such leave as aforesaid shall be
made ex parte to a judge in chambers and shall be
accompanied by a statement setting out the name
and description of the applicant, the relief sought,
and the grounds on which it is sought, and by
affidavits verifying the facts relied on. The judge
may in granting leave, impose such terms as to
costs and as to giving security as he thinks fit.
(3) The applicant shall give notice of the application
for leave not later than the preceding day to the
registrar and shall at the same time lodge with the
registrar copies of the statement and affidavits,
provided the court may extend this period
or excuse the failure to file the notice of the
application for good cause shown.
(4) The grant of leave under this rule to apply for an
order of prohibition or an order of certiorari shall,
if the judge so directs, operate as a stay of the
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proceedings in question until the determination

of the application or until the judge orders
otherwise.
2 (a) Leave shall not be granted to apply for an order of
certiorari to remove any judgment, order, decree,
conviction or other proceeding for the purpose
of its being quashed unless the application for
leave is made not later than six months after the
date of the proceeding or such shorter period
as may be prescribed by any Act; and where the
proceeding is subject to appeal and a time is
limited by law for the bringing of the appeal,
the judge may adjourn the application for leave
until the appeal is determined or the time for
appealing has expired:
(b) In rule 3 by deleting subrule (1) and inserting
anew subrule as follows:
3 (1) when leave has been granted to apply for an
order of mandamus, prohibition or certiorari, the
application shall be made within 21 days by
notice of motion to the High Court, and there
shall, unless the judge granting leave has otherwise
directed, be at least eight clear days between the
service of the notice of motion and the day named
therein for the hearing.
D. CONCLUSION
In this chapter the impact of Legal Notice number 164 of 1992
and Legal Notice number 5 of 1996 which are the most recent
developments in Judicial Review under Kenyan Law has been
assessed. The investigation reveals that the parameters of Judicial
Review have been widened and it now remains for the Kenyan
Judiciary to free itself from the manacles of procedure and to pay
homage to substantive justice and revitalise Judicial Review as a
means of keeping administrative excesses in check.13
13 Suggestions for further reform are made in Chapter Eleven.

CHAPTER TEN
APPLYING FOR JUDICIAL REVIEW
SYNOPSIS
A. Introduction
B. Application for Leave
C. Form of Application at the Leave Stage
D. Application for Orders
E. Form of Application for Orders by Notice of Motion
F. Proceedings on Appeal
G. Form of Application on Appeal
H. Conclusion
A. INTRODUCTION
The application for Judicial Review goes through two basic stages:
(a) The application for leave; and
(b) the substantive hearing.
The legally sanctioned documents for use by the applicants are,
the chamber summons, statement, verifying affidavit and notice of
motion. The respondents are entitled to file grounds of opposition1
together with affidavits in reply.
B. APPLICATION FOR LEAVE

The application for leave is the first step in the procedure for seeking
Judicial Review. It is also known as the threshold or sieve stage. Here,
the applicant, without any formal notice served on the administrative
authority whose order, decision or act is sought to be challenged,
seeks the leave of the court of competent jurisdiction to apply for
Judicial Review. The application for such leave is ex parte and is
made to a single judge, in chambers.1a At this stage, it is imperative
1 Order 50, rule 16 of the Civil Procedure Rules.

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for the application to be accompanied by a statement setting out

the relief sought, the grounds on which such relief is sought as well
as affidavits verifying the facts relied on. During the application for
leave, the court’s duty is to have a preliminary view of the merits
of the application. This view must be exercised in light of the relief
sought and the grounds upon which it is sought. Moreover, it is
important to note that at this stage, the court exercises its discretion.
In establishing a preliminary view of the merit of the
application, the courts will not delve much into the factual aspects
of the application.This comes during the ‘inter partes’ hearing in the
substantive application, should leave be granted. But of course a vital
fact, which has the effect of infraction of one’s legal right to warrant
the court’s interference must be established.
Another guiding principle to the court at this stage is the
applicant’s “locus standi”. The court must satisfy itself that the applicant
has sufficient interest in the matter to which the application relates.
An applicant must have enough of a stake in the proceedings for
standing to be conferred on him. In as much as there is no statutory
definition of sufficient interest, the courts have been left to flexibly
interpret it, depending on the circumstances of each case. But the
courts must also guard themselves against having their time wasted
by busybodies with misguided or trivial complaints of administrative
error or those bent on frustrating or embarrassing the administrative
machinery.
Apart from establishing the locus standi of an applicant, the court
must ensure that there has been no undue delay in seeking relief
against the decision, act or inaction of the administrative authority.
The Civil Procedure Rules2 are very particular on the
application for orders of certiorari which must be brought within
six (6) months of the decision in issue. That notwithstanding, the
court often will grant leave to apply after the stipulated time if
reasonable cause for the delay can be shown by the applicant.
However this is not true where certiorari is concerned because of
the statutory calling of six (6) months. That is as far as certiorari is
1a Order 53, rule 2 of the Civil Procedure Rules

2 Order 53, rule 2.
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Applying for Judicial Review 111
concerned. As for the applications for mandamus and prohibition,

there is no time limit under the Rules3 but applications must be
made within a reasonable time.The reasonableness of time depends
on the nature of each application. But courts will not entertain
applicants who are guilty of laches. The courts help the vigilant
and not the indolent.
An applicant should be diligent in pursuing his remedy and
filing his application for Judicial Review within a reasonable time
from the date of the order challenged. There is no inviolable rule
that wherever there is delay, the court must necessarily refuse to
entertain the application. Even a delay for a few weeks for which
there is no reasonable explanation may be fatal to an individual’s
application. Of course the court may be more indulgent where
there is an infringement of one’s fundamental right, or where the
order complained of is manifestly erroneous or blatantly without
jurisdiction. It is a rule devised on the principle of circumspection
and has to be applied wisely. It is to be noted from the wordings
of the rules that a grant of leave to apply for an order of prohibition
or certiorari does not automatically serve as a stay of proceedings
in question until meritorious determination of the application. The
judge’s discretion is exercised, mainly to counter a possible act or
decision that has the effect of rendering the intended application
nugatory. Order 53, rule 1(4) does not make reference to mandamus
vis-à-vis stay of proceedings because of the courts reluctance
to compel the administrative authority to exercise a discretion
according to law or to perform its function in a particular way.
Traditionally, the test for grant of leave has been that the applicant
must demonstrate to the court, on a quick perusal of the papers that
there is an arguable and prima facie case with a probability of success.
The actual merits are reserved for the substantive application where
the administrative authority in question can challenge and rebuff in
law and fact.4
3 See Order 53 of the Civil Procedure Rules.

4 In Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Cooperative Savings and
Credit Society [1999] 1 EA 245, the Court of Appeal correctly held that the Court
granting leave must consider whether it serves as a stay or not. In essence a court
cannot grant leave and direct that the question of stay be dealt with inter partes.
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C. FORM OF APPLICATION AT THE LEAVE STAGE

Application for leave to seek Judicial Review is made ex parte to a judge
in Chambers. Substantively the application consists of the following
but is filed simultaneously with a one day notice to the Registrar:
(a) The chamber summons endorsed ex parte with the prayer
that the applicant be granted leave to apply for Judicial
Review.Although non-mandatory, it is prudent to mention
the order sought.
(b) A statement must be filed setting out the following:
(i) name and description of the parties;
(ii) the relief sought;
(iii) the grounds on which relief is sought.
(c) An affidavit or affidavits, which set(s) out the facts of the
matter and the facts relied on to obtain the relief sought
and which verify the facts.
(d) Supporting documents, certified copies of proceedings
and/or orders which form the basis of the application
must be exhibited. If such orders are not available then a
reasonable explanation for such absence must be given in
the affidavit or statement as required by Order 53, rule 7(1).
The application at this stage is heard before a single judge
ex parte, afortiori the presence of a prospective respondent at
this stage is improper.
At the leave stage the application takes the following form:
(I) NOTICE TO REGISTRAR

IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS CIVIL
CAUSE NUMBER 17 OF 2006
IN THE MATTER OF: AN APPLICATION BY KENYA REVIEW/ KENYA
LIMITED FOR LEAVE TO APPLY FOR JUDICIAL
REVIEW.
AND
IN THE MATTER OF: THE PENAL CODE (CHAPTER 63) AND THE
HONOURABLE THE ATTORNEY-GENERAL.
NOTICE TO THE REGISTRAR
(Pursuant to Order 53, rule 1(3) of the Civil Procedure Rules).

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THE APPLICANT hereinabove named HEREBY gives notice that the

application for leave to apply for Judicial Review as detailed in the
statement referred to herein below, will be made on or after the
day succeeding hereto. Copies of the statement and the affidavit are
lodged herewith.
DATED AT NAIROBI this 17 July 2006.
Signed
UKWELI ADVOCATES
ADVOCATE FOR THE APPLICANT.
To:
The Registrar
The High Court of Kenya
NAIROBI.
Drawn and filed by:

UKWELI MTUPU
ADVOCATES FOR THE APPLICANT
5™ FLOOR
FINANCE HOUSE
LOITA STREET
NAIROBI.
(II) APPLICATION FOR LEAVE

CHAMBER SUMMONS
IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS CIVIL CASE

NUMBER 17 OF 2006
CHAMBER SUMMONS
IN THE MATTER OF: AN APPLICATION BY KENYA REVIEW/ KENYA

REVIEW.
AND
HONOURABLE THE ATTORNEY- GENERAL
(Under Order 53, rules 1(1), (2) and (4) of the Civil Procedure
Rules, the Law Reform Act (Chapter 26) and all other enabling
provisions of the law).
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EX PARTE
LET ALL PARTIESconcerned attend before the Judge in chambers on
the day of 2006 at 9:00o’clock in the application by the applicant
above named FOR ORDERS THAT:
(A) THE APPLICANT, THE KENYA REVIEW LIMITED be granted leave to
apply for an Order of Certiorari to remove into the High Court
and quash the Order made by the Attorney-General under
section 52, the Penal Code (Chapter 63), on the 4 July 2006 in
the Kenya Gazette Legislative Supplement number 1 in Legal
Notice number 2 of 2006 declaring all past, present and future
issues of THE KENYA REVIEW to be prohibited publications.
(B) THE GRANT OF LEAVE to operate as a stay of the said Order in
question made by Minister until the determination of the
application of the Order of certiorari.
(C) THE COSTS of this application be in the cause.
THIS APPLICATION is grounded upon the matters set out in the
statutory statement and the affidavit of Hasira Kali filed in Court and
upon further and other grounds and reasons to be adduced at the
hearing thereof.
Signed
UKWELIMTUPU
ADVOCATE FOR THE APPLICANT
THIS SUMMONS WAS DRAWN AND TAKEN OUT BY:
UKWELIMTUPU ADVOCATES
5TH FLOOR, FINANCE HOUSE
LOITA STREET
NAIROBI
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(III) STATEMENT
CAUSE NUMBER17 OF 2006
IN THE MATTER OF: AN APPLICATION BY KENYA REVIEW/KENYA

REVIEW.
AND
HONOURABLE THE ATTORNEY-GENERAL
STATEMENT
(Pursuant to Order 53, rule 1(2) of the Civil Procedure Rules)

THE NAME AND DESCRIPTION OF THE PARTIES
1. The name of the applicant is THE KENYA REVIEW which is the

business name of its sole proprietor THE KENYA LIMITED, a limited
liability company incorporated within the Republic in 1991.
2. The applicant is duly registered under the provisions of the
Registration of Business Names Act (Chapter 499) bearing
Registration number 2 under certificate of registration issued
on 17 July 2006.
3. The respondent is the Attorney-General Republic of Kenya.The
respondent’s address as care of Attorney-General’s Chambers,
Sheria House, Nairobi.
THE RELIEF SOUGHT IS:
AN ORDER OF CERTIORARI to remove into the High Court and quash

the Order made by the Attorney-General under section 52, the
Penal Code (Chapter 63) on the 4 July 2006 in the Kenya Gazette
Legislative Supplement number 46 in Legal Notice number 2 of
2006 declaring all past, present and future issues of KENYA REVIEW to
be prohibited publications.
THE GROUNDS ON WHICH THE RELIEF IS SOUGHT ARE:
4. The Attorney-General had no power to make the aforesaid

order, (detailed in paragraph 18 hereinabove), hereinafter called
‘the Attorney-General’s said “order” or “the Order”.
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5. The Attorney-General’s said Order was made without

jurisdiction.
6. The Attorney-General’s said Order was made in excess of
jurisdiction.
7. The Attorney-General’s said Order was made without due
process.
8. TheAttorney-General’s said Order violates the applicant’sfreedom
of expression.
9. The Order breaches the provisions of section 79, the Constitution
of Kenya and deprives the applicant of the fundamental rights
protected in the said provisions of the Constitution.
10. The Order is inconsistent with and in contravention of section
79, the Constitution of Kenya.
11. The Attorney-General’s said Order was contrary to law in that
it was made in breach of the rules of natural justice.
12. The Attorney-General did not give the applicant any or any
proper or sufficient opportunity of being heard upon or making
representations upon the Order, which affected the applicant.
13. The Attorney-General did not give the applicant any or any
proper or sufficient opportunity of being heard upon or making
representations upon the matters, if any, upon which it appeared
to the Attorney-General that the Order was reasonably required.
14. No opportunity was given to the applicant to show cause why
the Order should not be made.
15. The Attorney-General’s said Order was not founded upon basis
of fact, as is by law required.
16. The Order is defective and not in accordance with the
requirements of the law applicable thereto, and is incapable of
invoking the powers purported to be relied upon therein.
17. The legal prerequisites to the exercise of any powers under
section 52(2), the Penal Code (Chapter 63) were not in being,
and the Order was made without jurisdiction, and is null and
void.
18. The Order is unreasonable and oppressive, and is thereby void 3
and a nullity as subsidiary legislation.
19. The Order is null and void in that there is no power in the
Attorney-General to make subsidiary legislation in respect of
THE KENYA REVIEW or any publication, which this Order purports
to be.
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20. The Order is null and void in that the Order has not been made
at all.
21. There is no valid Order in existence.
22. The Order is contrary to and in breach of normal government
policy in respect of the freedom of the Press and expression.
23. The Attorney-General’s said Order was not the exercise of his
own discretion on a statutory matter, as is by law required to be,
if any powers were vested in him, which is denied.
24. The Attorney-General in making the Order has taken into
account matters he ought not to have, and has omitted to take
into account matters he should have.
25. The Order has not been made for the purposes for which the
statutory powers have been given, and is thereby void.
26. Section 52(2) of the Penal Code (Chapter 63) is inconsistent with
and ultra vires the provisions of section 79 of the Constitution of
Kenya, and to the extent of the said inconsistency is void, and
the Order is likewise void.
27. Section 52(2) of the Penal Code (Chapter 63) in so far as it empowers
the prohibition of “all past issues” of a periodical publication, is not
reasonably justifiable in a democratic society, and is void.
28. Section 52(2) of the Penal Code (Chapter 63) in so far as it
empowers the prohibition of “all future issues” of a periodical
publication, is not reasonably justifiable in a democratic society,
and is void.
29. The Order amounts to an unrestricted censorship of THE
KENYA REVIEW, which is not reasonably justifiable in a
democratic society.
30. The provisions of section 52(2) of the Penal Code (Chapter 63)
relied upon by the Attorney-General, constitute unrestricted
powers of censorship of the Press. This law, and the Order
which has been made under its purported authority, are each
not reasonably justifiable in a democratic society, are ultra vires
the Constitution of Kenya, and are void.
31. The Order is void in that it amounts to the retrospective creation
of an offence in respect of the possession of past issues of THE
KENYA REVIEW lawfully sold, purchased and acquired in
the past.
32. The Order is in contravention of and inconsistent with the
provisions of section 77(4), the Constitution of Kenya, and is
thereby void.
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33. Section 52(2) of the Penal Code (Chapter 63) is inconsistent

with the provisions of section 77(4) of the Constitution of
Kenya, and is, to the extent of the inconsistency, void.
34. Section 52(2) of the Penal Code, is a pre-1963 provision, which
was imposed on Kenya in 1930, for the purpose of controlling
and prohibiting the expression of opinion against continued
colonial rule, and for independence. It is inconsistent with the
ideals of our Republic, which envisage a tolerant society.
35. Section 52(2) of the Penal Code, is inconsistent with the written
Constitution of Kenya.
36. The Order, and the process by which it was arrived at, were in
breach of the further pro visions of section 77, the Constitution
of Kenya.
37. The Order is in breach of Kenya’s municipal and international
legal obligations, including the Universal Declaration of Human
Rights, and Article 19 thereof in particular.
38. The Order and the process by which it was arrived at, are in
breach of the principle that justice must not only be done, but
must manifestly and clearly be seen to be done.
39. The Order and the provisions of section 52(2) of the Penal
Code are each inconsistent with and in contravention of the
provisions of section 70 and other sections of the Constitution
of Kenya.
Signed
UKWELIMTUPU
DRAWN and FILED BY:

UKWELIMTUPU
LOITA STREET
P O BOX 10676
NAIROBI
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(IV) AFFIDAVIT

REVIEW.
AND
HONOURABLE THE ATTORNEY-GENERal
VERIFYING AFFIDAVIT
I, HASIRA KALI of Post Office Box number 741, Nairobi make oath
and say as follows:
1. I am a director of the applicant and I am authorised to make
this affidavit on its behalf, and I am also the Editor-In-Chief. I
am familiar with the matters the subject of the application above
mentioned and I am competent to swear this affidavit.
2. That since 1991 the said sole proprietor has published a
periodical under the said business name and style of THE KENYA
REVIEW.
3. In July 1991 THE KENYA REVIEW lawfully commenced publication,
and has since then lawfully published 10 issues.
4. On 4 July 1998 the Attorney-General prohibited the publication
of THE KENYA REVIEW under the purported exercise of powers
contained in section 52 of the Penal Code (Chapter 63).
5. The said prohibition was published in a Special issue of the Kenya
Gazette Legislative Supplement of 4 July 1998 in Legal Notice
number 2 of 1998 dated 4 July 1998 which stated that:
“All past, present and future issues of the periodical publication entitled
THE KENYA REVIEW printed and published by KENYA LIMITED, Finance
House, 5th Floor, Loita Street, P.O. Box 741 Nairobi are declared to be
prohibited publications.”
6. A copy of the said Legal Notice number 2 of 1998 is annexed
hereto and marked as ANNEXTURE “A”.
7. At no time prior to the said prohibition was any notification of
the intended prohibition given to the applicant.
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8. At no time prior to the said prohibition was the applicant given

any notice calling upon it to show cause why KENYA REVIEW
should not be declared a prohibited publication.
9. At no time has the applicant been afforded any opportunity to
be heard or to make representations upon the prohibition of the
KENYA RE VIEW.
10. There was and is no basis in fact for the purported prohibition.
11. The publication has at all times been law-abiding and has operated
within the provisions of all applicable laws.All the issues thereof are
lodged in Court herewith as the sealed bundle marked Annexture
“B”, as the same cannot conveniently be attached hereto.
12. THE KENYA REVIEW has present sales approximating 20 000 copies
per issue, and a readership for each issue in excess of 100 000.
13. The said order of prohibition is bad in law and defective.
14. The said prohibition is not reasonably justifiable in a democratic
society.
15. The applicant has been adversely affected by all the foregoing and
by the deprivation thereby of the rights and protections afforded
to it by the Constitution of Kenya and other applicable laws.
16. That the facts I have deponed to hereinabove are true to the
best of my personal knowledge and belief save those based on
information sources whereof I have duly disclosed.
SWORN by the said ]
HASIRAKALI ]
On behalf of the applicant ]
THIS DAY OF 2006 ]
SIGNED ]
IN THE PRESENCE OF ]
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN and FILED BY

UKWELIMTUPU
ADVOCATE FOR THE APPLICANT
LOITA STREET
NAIROBI
PLO Lumumba
(V) ORDER

REVIEW.
AND
HONOURABLE THE ATTORNEY-GENERAL
BEFORE THE HONOURABLE MR HAKIPEKEE ON THE 18 JULY 2006

ORDER
UPON READING application presented to this Honourable Court on

the 17 July 2006 by counsel for the applicant under Order 53 of
the Civil Procedure Rules, The Law Reform Act (Chapter 26) and
all other enabling powers and provisions of law AND UPON READING
the affidavit of Hasira Kali sworn on the 17 July 2006 AND UPON
HEARING Counsel for the applicant IT IS HEREBY ORDERED THAT:
1. THE APPLICANT, THE KENYA REVIEW/KENYA LIMITED BE AND IS

HEREBY granted leave to apply for an Order of Certiorari to remove
into the High Court for the purpose of its being quashed the
Order made by the Attorney-General under section 52 of the
Penal Code (Chapter 63) on the 4 July 2006 declaring all past,
present and future issues of THE KENYA REVIEW to be prohibited
publications.
2. THIS GRANTING OF LEAVE shall and DOES HEREBY operate as a Stay
on the said Order in question made by the Attorney until the
determine of the application for the Order of Certiorari.
GIVEN UNDER my hand and the Seal of the Court at Nairobi this 18
July 2006.
ISSUED at Nairobi this 18 July 2006.
Signed
DEPUTY REGISTRAR
HIGH COURT OF KENYA, NAIROBI
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D. APPLICATION FOR ORDERS

Leave having been given to apply for Judicial Review, the second
stage comes into play and entails a formal application for the orders.
This is brought to the High Court by way of notice of motion.
The applicant at this stage must cause the statements relied on at
the preceding leave stage to be served with the notice of motion.
The notice of motion in any case must be made to the High Court
within twenty one (21) days.
Service of the notice of motion on all persons directly affected
by the said application must be made at least eight (8) clear days
before the day named for the hearing.
The time limit between the penultimate stage of application for
leave to apply and the hearing of the application for orders is not in
the Rules. What is clear from the Rules is that the notice of motion
must be lodged in the High Court within twenty one (21) days
from the date leave is given. However, the judge granting leave can
exercise discretion on the period within which the notice of motion
can be served to parties directly affected by such application. In the
absence of any exercise of discretion to the contrary, service must
be effected eight (8) days from the date the application is set down
for hearing.
The hearing of the substantive application takes place in an
open court. The applicant has a right to begin basically because
the contentious issues which form the subject of Judicial Review
emanate from him. The other parties who have a right to be heard,
for the purpose of affirming or rebuffing the issues in fact or in
law, then follow. This is an inter partes proceeding where the court
has to substantively appreciate the facts and law to meritoriously
determine the application and subsequently give or refuse to give
orders as prayed.
During the hearing of the substantive application, the applicant
still relies on the statement and the verifying affidavit made at the
leave stage. The notice of motion has to be accompanied by the
application for leave and copies of any affidavits accompanying the
application for leave have to be produced on demand. At the same
time, an affidavit of service must be filed before the Notice is set
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down for hearing. In other words, an affidavit setting out particulars

of all persons ought to be served indicating the date and place of
service. In the event of failure to serve an affidavit stating such failure
and reasons therefore must be availed before the High Court on the
hearing of the Motion. Even at this stage, the court has discretion
and may adjourn the hearing if in its opinion, service has not been
effected to a necessary party.
The statement filed at the leave stage may be amended if
allowed by the High Court. After the Motion has been set down for
hearing. When an applicant wishes to amend his statements or use
further affidavits, he must give notice of his intention to amend or
use further affidavits, copies of which must be supplied on demand.
The same procedure applies to other parties who have a right to be
heard, in regard to affidavits they propose to use at the hearing.
The body whose decision is being judicially reviewed must
always be served. If that body is a court or a Tribunal, the notice
must be served on the clerk or the Registrar of such court or
Tribunal. This was clearly brought in the case of an Application of
Kamlesh Damji Pattni and others v The Principal Magistrate, the Principal
Magistrate’s Court Kibera.5 In this case the three (3) applicants herein,
ie Kamlesh Mansukhlal Damji Pattni, Bernard Kalove and Lionel
John Smith, first applied to the court for leave to apply for an order of
prohibition directed to the Kibera Principal Magistrate prohibiting
her and any other Magistrate from hearing or further hearing or
determining the Principal Magistrate’s Court, Kibera cases Republic
v Kamlesh Mansukhlal Pattni and Bernard Kalove6 and R v Lionel John
Smith7 of the charges therein or any charges in any Criminal Case
relating to the matters in High Court civil case number 418 of 1998
at Nairobi. The applicants also prayed that the grant of the aforesaid
leave do operate as a stay of the proceedings in question, to wit; the
“Principal Magistrate’s Court Kibera criminal case numbers 9438
and 9605 of 1998”, until the determination of the application for
the aforesaid order of prohibition. The orders sought were granted
by Justice Joyce Aluoch.

6 Kibera criminal case number 9438 of 1998.
7 Kibera criminal case number 9605 of 1998.
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If an application includes a criticism of a judge, magistrate or

members of a tribunal, then personal service may be effected to
such judge, magistrate or members of tribunal, as the case may be.8
This is for purposes of expediency especially where the application
involves orders for certiorari to remove any proceedings for the
purpose of their being quashed. There may be instances where an
applicant is not sure whether or not a particular body or person
should be served. It is always advisable to seek directions from the
High Court on service. It is usually easier also to write informally
to the person or body in question and ask them whether they wish
to be served formally.
The foregoing procedure was disturbed briefly by amendments
through a Legal Notice in 1992.9 Prior to the amendment, Order
53 was headed “orders of mandamus, prohibition and certiorari”.
Then rule 1(1) of the said order required that every application
for any of the remedies be preceded by an application for leave.
In every application for leave, the applicant was required to file a
chamber application, a statement setting the names and descriptions
of the applicant, the relief sought and the grounds upon which it
was sought. An affidavit verifying the facts and reliefs set out in the
statement are also filed.
Once leave had been obtained in the manner prescribed under
Order 53, rule 1(2), rule 3(1) required that an application be made
within twenty one (21) days by way of notice of motion. The said
rule also required that there be eight (8) clear days between the date
of service as the respondent and the date named in the notice for
the purpose of hearing the application. The rule had to be followed
unless a judge directed otherwise.
It was a requirement of rule 3(2) that the notice be served on
all persons directly affected and rule 3(3), required that an affidavit
giving the particulars of all persons served with the notice as well as
the place and date of service be filed. If no service was effected, the
affidavit had to state the reasons for such failure. The said affidavit
8 Legal Notice number 164 of 1992.

9 Ibid.
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was required to be before the High Court at the time of the hearing
of the motion.
At the hearing, before a single judge10 as per rule 3(3), the
applicant had the right to begin and then followed by any person
who desired to be heard in opposition to the motion and appeared
to the High Court to be a proper person entitled to a hearing
notwithstanding that he had not been served with the notice of
summons.
It is clear that pre-Legal Notice number 164 of 1992 and post-
Legal Notice number 5 of 1996 procedures are fundamentally the
same.
Through Legal Notice number 164 of 1992, the Rules
Committee introduced the following fundamental changes:
(i) the removal of the leave stage;
(ii) the change in the title of the order 53 to read “application
for Judicial Review”, the change regarding the period for
hearing the application for Judicial Review; and
(iv) the change allowing a single judge to entertain an
application for Judicial Review.
One of the effects of the Legal Notice was that the amended
Order 53 allowed for an omnibus application which needed not
specify the order sought. This view was judicially held in the case
of National Democratic Union v Attorney-General.10a. In this case, as
already discussed11 the applicants had moved the court praying for
an order of Judicial Review directed at the Attorney-General and
the Registrar of Societies who had refused to register the party as a
political party.
The removal of the requirement for leave meant that all matters
were now canvassed at the hearing of the substantive application.
This approach was also used in Ambrose Otieno Weda v The Attorney-
General and another12 where the question of locus standi and all other
10 Before the 1992 amendment the practice was to place the notice of motion before a
bench of two Judges. See Shah Devshi v Transport Licensing Board [1971] EA 289.
10a Supra, Chapter Nine, note 4.
11 Miscellaneous appeal number 145 of 1992, Supra, Chapter Nine, note 4.
12 Miscellaneous civil case number 5 of 1993, supra, Chapter Nine, note 7.
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matters, hitherto argued at the ‘threshold’ stage were argued before

two judges on the hearing of the notice of motion.
Owing to the importance of the leave stage, the Legal Notice
164 of 1992 came under a close scrutiny in the case of Kenneth
Matiba v The Attorney-General13 where it was declared null and void
to the extent that it offended the legal basis upon which remedies
for Judicial Review are applied for, founded on sections 9 of the
Law Reform Act.
The authoritative pronouncement by the High Court in the
Matiba14 case reviewed the position of the procedure for applying for
Judicial Review as follows:
(i) that every applicant must seek and obtain leave as was the
case before 1992 when Legal Notice number 162 came
into operation;
(ii) that applications for the orders of certiorari, mandamus and
prohibition are made by applying for Judicial Review;
(iii) that it is not mandatory for an applicant for Judicial Review
to specify the particular order sought.
Once leave to apply for Judicial Review has been sought and
obtained, the applicant(s) may proceed to seek the orders by notice
of motion in accordance with Order 53, rules 3 to 7.
The documents to be utilised at this stage are:
(i) The notice of motion.
(ii) A copy of the statement accompanying the application for
leave.
(iii) A copy of the affidavit which accompanied the application
for leave.
(iv) If leave to file further affidavit(s) has been granted pursuant
to Order 53, rule 4(2) then the applicant must give notice
to other parties.
13 Miscellaneous appeal number 790 of 1993, supra, Chapter Nine, note 10.
14 Ibid.
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E. FORM OF APPLICATION FOR ORDERS BY NOTICE OF

MOTION
REPUBLIC ........................................................................ APPLICANT
VERSUS
THE ATTORNEY GENERAL .............................................. RESPONDENT
EX PARTE THE KENYA REVIEW/KENYA LIMITED
NOTICE OF MOTION
(Order 53, rule 3(1) of the Civil Procedure Rules, The Law
Reform Act, section 8 and 9 (Chapter 26) and all other enabling
powers and provisions of law)
TAKE NOTICE that pursuant to leave granted by this Honourable
court on the 17 July 2006, this Honourable Court will be moved on
................. day of ............ 2006 at 9:00o’clock in the forenoon or
as soon thereafter by Counsel for THE KENYA REVIEW/ KENYA LIMITED
FOR:
1. AN ORDER OF CERTIORARI to remove into the High Court for the

purpose of its being quashed the Order made by the Attorney-
General under section 52 of the Penal Code (Chapter 63) on
the 4 July 2006 published in the Kenya Gazette Legislative
Supplement number 1 in Legal Notice number 2 of 2006
declaring all past, present and future issues of THE KENYA REVIEW
to be prohibited publications.
2. THE COSTS of this application be provided for.
THIS APPLICATION is made upon the grounds and matters set out
in the statutory statement and the affidavit of Hasira Kali served
herewith and already filed in Court, and upon further and other
grounds and reasons to be adduced at the hearing of this application.
DATED AT NAIROBI this day of 2006.
Signed
UKWELIMTUPU
ADVOCATE FOR THE KENYA REVIEW/KENYA LIMITED
PLO Lumumba
DRAWN and FILED BY:

UKWELIMTUPU
ADVOCATES
LOITA STREET
PO BOX 10676
NAIROBI
TO BE SERVED UPON:
THE HONOURABLE THE ATTORNEY GENERAL THE ATTORNEY GENERALS

CHAMBERS NAIROBI
(through the office of the Advocate of THE KENYA REVIEW/KENYA

LIMITED)
NOTE: If any party served does not appear at the time and place
above mentioned such order will be made and proceedings taken as
the Court may think just and expedient).
F. PROCEEDINGS ON APPEAL
An applicant who is aggrieved by the decision of the High Court
has a right of appeal by virtue of section 8(5) of the Law Reform
Act (Chapter 26) which provides as follows:
“Any person aggrieved by an order made in the exercise of the civil
jurisdiction of the High Court of Kenya under this section may appeal
therefrom to the Court of Appeal.”
The appeal lies from refusal to grant leave15 and from refusal to grant
the substantive application16.
On appeal, the applicant is enjoined to follow the rules
governing civil appeals as stipulated in the Court of Appeal Rules.
In a nutshell the order appealed from must be drawn and certified
and the Record of Appeal filed and served.
15 See East African Community v Railway African Union (Kenya) and others [1973] EA 529
and also Wilson Osolo v John Ochola and Attorney-General civil appeal number 6 of
1995.
16 See ex parte Njau [1960] EA 109 and also in Council for Legal Education and
Principal Kenya School of Law in the matter of application by Rita Biwott High Court
miscellaneous case number 1122 of 1994.
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G. FORM OF APPLICATION ON APPEAL
(I) APPEAL FROM REFUSAL OF LEAVE

IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL NUMBER 1 OF 2006
REPUBLIC ........................................................................ APPLICANT
VERSUS
THE LIQUOR LICENSING BOARD ..................................... RESPONDENT

EX PARTE KINYWAJI CHAKULA LIMITED
APPEAL FROM REFUSAL OF GRANT OF ORDERS IN THE COURT OF

APPEAL AT NAIROBI CIVIL APPEAL NUMBER 1 OF 2006
THE LIQUOR LICENSING BOARD………………................... APPLICANT
AND
REPUBLIC ................................................................... .RESPONDENT
EX PARTE KINYWAJI CHAKULA17
It is important to note that where leave is granted costs are usually

in the cause. At the end of the case costs will invariably be awarded
to the successful person.
H. CONCLUSION
It is clear from the analysis that procedural propriety is a fundamental
aspect of applications for Judicial Review. Every application must
ipso facto conform, not only to the substantive law as set in the Law
Reform Act but also with the procedural requirements as set out
under Order 53 of the Civil Procedure Rules, hence the statement,
procedure is the handmaiden of substance. It is important to reiterate
that the often confusing character of the statement and the verifying
affidavit is now settled beyond peradventure since the decision in
Commissioner General, Kenya Revenue Authority through Republic and
17 Owing to the length of appeal bundle only the titles of appeal applications have been
provided.
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Silvano Onema Owaki T/A Marenga Filling Station18 where the Court
of Appeal stated:
“We would observe that it is the verifying affidavit not statement to be
verified, which is of evidential value in application for Judicial Review.
That appears to be the meaning of rule 1(2) of Order LIII. This position
is confirmed by following passage from the Supreme Court Practice 1976
Volume paragraph 53/1/7:
‘This application for leave by a statement”.The facts relied on should
be stated in the affidavit (see R v Wandsworth JJ ex parte Read [1942]
1 KB 281). “The statement” should contain nothing more than the
name and the description of the applicant, the relief sought, and the
grounds on which it is sought. It is not correct to lodge a statement
of all the facts, verified by an affidavit’.”
18 See also the case of Paul Imison v Attorney-General and others, miscellaneous application
number 1604 of 2003.
CHAPTER ELEVEN
SUGGESTIONS FOR REFORMS
SYNOPSIS
A. Introduction
B. Widening the Scope of Remedies
(i) Injunction
(ii) Declaration
(iii) Damages
C. Proposed Changes on Locus standi
D. Epistolary Jurisdiction
E. Other Suggestions for Reform
F. Conclusion
A. INTRODUCTION
Throughout the preceding chapters the existing legal provisions
governing Judicial Review in Kenya have been examined. To the
extent that it has been deemed germane, reference has been made to
other jurisdictions notably England for historical reasons.
In this last chapter, we present suggestions for further reform
of the regime of Law governing applications for Judicial Review
in Kenya.
B. WIDENING THE SCOPE OF REMEDIES

Traditionally, the only remedies available to a party seeking the orders
of Judicial Review are certiorari, mandamus and prohibition. These
are clearly spelt out under sections 8 and 9 of the Law Reform Act1
as read together with Order 53 of the Civil Procedure Rules.
The statutory orders of certiorari, mandamus and prohibition are
remedies given by the High Court to persons injured by the exercise

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of administrative or judicial power. The basis of these orders is that

administrative improprieties cannot be countenanced, afortiori; if
administrative bodies or even courts arrive at “improper” decisions,
appropriate remedies may be invoked through Judicial Review.
In England, the powers of the High Court in Judicial Review
application are set out in section 31 of the Supreme Court Act of
1981 and Order 53, rule 2.This allows it to grant six different orders
namely:
(i) Certiorari
(ii) Prohibition
(iii) Mandamus
(iv) Injunction
(v) Declaration
(vi) Damages
Under Kenyan Law, the prerogative orders of certiorari, prohibition
and mandamus are the only ones available against public bodies in an
application for Judicial Review. However, in our view circumstances
now justify the expansion of the basket of remedies by taking a cue
from the developments in England to make Judicial Review ‘a one
stop shop’ for claims against public bodies. The additional remedies
we propose are Injunction, Declaration and Damages.2
(I) INJUNCTION
An injunction is an order from the court addressed to a person or
body telling them either not to perform an act or to do it. In either
case, disobedience or failure to comply is contempt of court and can
be punished by a fine, imprisonment or by sequestration.
In England, the availability of injunctions as a public law remedy
is governed by section 31(2) of the Supreme Court Act of 1981
and Rules of Supreme Court Order 53, rule 1(2) which reads: “An
2 Our proposal has received judicial support in the case of Paul Imison v Attorney-
General and others miscellaneous civil application number 1604 of 2003 where
Nyamu J opined thus:
“The Law Reform Commission ought to look at the procedure and the remedies
with a view to expanding its scope to statutorily provide for the remedies of
declarations, injunctions and damages plus interim relief. The procedures should also
provide for application as a matter of right.”
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Suggestions for Reforms 133
application for a declaration or an injunction... may be made by way

of an application for Judicial Review, and on such application the
court may grant the declaration or injunction claimed if it considers
that, having regard to:
(a) the nature of matters in respect of which relief may be
granted by way of mandamus, prohibition or certiorari,
(b) the nature of persons and bodies against whom relief may
be granted by way of such an order, and
(c) in circumstances of the case, it would be just and convenient
for the declaration or injunction to be granted on an
application for Judicial Review.
In an application for Judicial Review an injunction should be
granted to:
(i) restrain a public body from acting unlawfully;
(ii) restrain the implementation of unlawful decisions;
(iii) compel a public authority to comply with its statutory
duties;
The first two are prohibitory in nature.
(II) DECLARATION
A declaration is an authoritative and binding statement of the parties’
legal rights. It does not directly order anyone to do anything nor does
it quash any decision. Like the availability of injunctions in Judicial
Review cases, the availability of declaratory relief is governed by
section 31(2) of the Supreme Court Act of 1981 and Rules of the
Supreme Court Order 53, rule 1(2). In public law cases, in order to
grant a declaration it is not always necessary to identify a ‘decision’
of a public body, a threat to act ultra vires, nor a duty to be performed.
As a general rule, though, there must be a genuine dispute between
the parties before the courts will be prepared to grant declaratory
relief. “A declaration does not have a constitutive effect” but can be
used to enforce the declared right in a subsequent suit, and in those
proceedings the issue would be res judicata due to the declaration.3
3 Jubilee Insurance v Rex Hotel Limited [1973] EA 437; Peter Bayne “Govemir Liability
for Torts by Public Officials” [1970] EA Law Journal 243, at 243”.
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The Law in Kenya as it stands today allows a litigant to seek

declaration by an action commenced through a plaint.4 However, it
is our view that in Public Law matters the remedy should be made
available in an application for Judicial Review.
(III) DAMAGES
Damages can be awarded in an application for Judicial Review but only,
if they could have been claimed in an ordinary court action commenced
at the same time, and a claim for damages has been included in Form
86A (in England) when the application for leave is made5. It is not, in
general, the purpose of public to compensate individuals for invalid
administrative action and damages are not available simply because an
application for Judicial Review is successful6. In other words, a tort
will need to be proved as well as at least one of the grounds for Judicial
Review7.The most common torts will be:
(i) negligence.
(ii) breach of statutory duty.
(iii) misfeasance in a public office.
The suggestions for reform will also require that Judicial Review
is made the exclusive mode of attacking public decisions. Such
development will provide one avenue for challenging public
decisions and thereby create order and reduce the cost of litigation.
C. PROPOSED CHANGES ON LOCUS STANDI

Owing to the eclectic manner in which Kenyan courts have dealt
with the question of “locus standi”, a more predictable test needs to
be applied.
4 See P Nowrojee, “Mandamus, Prohibition and Certiorari: Practice, Procedure and

Values” The Nairobi Law Monthly, Nairobi; November/December 1987, 12 at 14. Such
action is also possible in cases of mandamus. See Mutenda Mugnyiasoka [1957] EA 390,
Nowrojee also argues that by virtue of section 3(1) of the Judicature Act (Chapter
8) the Common Law Procedure Act of 1854 applies in Kenya, and an action for
mandamus can be sought.
5 Rules of Supreme Court Order 53, rule 7.
6 See R v Metropolitan Borough of Knowlsbery ex parte Maguire (1992) COD 499.
7 Richard Poynter; The applicant’s Guide to Judicial Review, London: Sweet and Maxwell
1995 at 28.
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Suggestions for Reforms 135
The more liberal approach to “locus standi” that has emerged

recently should be developed on a two-tier basis.The first tier would
cover those who have been personally affected by the decision
which is the subject of the complaint. The second tier of standing
would cover “public interest” challenges, where the court would
apply a broad, statutory discretion to allow an application for Judicial
Review to proceed where it considers that it is in the public interest
for the applicant to make an application. This would apply to public
spirited individuals or to groups/organisations acting as applicants.
The Rules Committee needs to recommend factors to be taken
into account by Courts in determining “public interest” challenges
and these should be enacted as Rules to preclude doubt.This would
supply some standardisation and aid judges in exercising their
discretion.
D. EPISTOLARY JURISDICTION
An “epistle” is a letter. In a landmark judgment in the Indian case of
MC Mehta v Union of India,8 the five-judge bench of the Supreme
Court of India held that the poor in India can seek enforcement
of their fundamental rights from the Supreme Court by writing
a letter to any judge. The judge would then treat the letter as a
“writ-petition” and take appropriate steps to grant a remedy. Such a
letter does not have to be accompanied by an affidavit. A practical
application of this unique jurisdiction is evident in the Indian case
of Mohanlal Sharma v State of UP,9 in the case, a telegram was sent to
the court from the petitioner alleging that his son was murdered by
the police in the police lock up. The telegram was treated as a writ
petition by the court and the case was directed to be referred to the
India’s Central Bureau of Investigation for a thorough and detailed
investigation.
Through this unique procedure the Indian courts have brought
legal aid to the doorsteps of the teeming millions of India that the
executive has not been able to do. It is recommended that such a
system would be useful in Kenya where there is no legal aid scheme.
8 AIR 1987 SC 1087.

9 (1989) 12 SCC 609.
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The court receiving the letter would treat it as a Motion and launch
proper investigations with a view to granting an appropriate and
deserving remedy if such remedies are Judicial Review remedies.
Such change in procedure in cases of poor litigants would go a long
way in creating a sense of responsibility among public authorities
exercising enormous powers under the Constitution and the law.
This jurisdiction would certainly be able to minimise, the abuse
of power by public authorities. Henceforth they would be much
more vigilant in exercising their powers and performing their
constitutional and statutory duties and obligations towards the
people, particularly poor and helpless persons.
E. OTHER SUGGESTIONS FOR REFORM

It is proposed that the Latin names for the orders available in Judicial
Review should be changed in order to make their meaning more
accessible to laymen. The changes proposed are:
(1) Mandamus - Mandatory Order
(2) Prohibition - Prohibitory Order
(3) Certiorari - Quashing Order
F. CONCLUSION
The suggestions made in this chapter call for further reform of
the procedures for Judicial Review. In many respects they confirm
recent trends in case law in other jurisdictions and merely call for
our legal system to wake up from its slumber and take its place
in a community of pragmatic legal systems. Reforms such as those
for public interest litigation and epistolary jurisdiction will require
further supplementary changes to be introduced and a firmer
commitment from the legislature and the judiciary.
INDEX
A Appeal 11, 99
Action for damages 2 Appeal against exercise of

discretion 51
Adjournment 45, 54
Appeal from (form of
Administrative application) 129
Act 72, 84
Appeal from refusal of grant
Action 5, 17, 36, 91 129
Agencies 35, 38, 44, 46, 81,
88 Appellant 31, 32, 42, 52
Authorities 56, 94 Applicant 104, 114, 115, 118,
Authority 54, 55, 76, 94, 119, 122
109, 111, 111 Application of estoppel 83
Decision 3, 14, 16, 29, 51, Application for
56, 58, 60, 92
Certiorari 32
Excesses 1, 3, 6, 56, 108
Habeas corpus 34
Findings 5
Injunction 53
Functions 14
Judicial Review 3, 7, 58, 76,
Law 1, 4, 5, 14, 25, 50, 56, 101-104, 105, 111, 125,
64, 69, 75 131, 132-135
Machinery 110 Leave 7, 9, 73, 99, 100, 105,
Matters 5 106-110, 112-113, 122-
Of justice 98 124, 126, 130, 134
Administrative tribunals 4, 17, Orders 110, 122, 127
92 Audi alteram partem 55
industrial tribunals 4
Rent Tribunals 4 B
Affidavit 119, 121, 122 Bad faith (Malafides) 29
Of service 122 Bad faith 18, 21, 25, 29, 61
Affidavits 122, 126 Bias (direct interest) 27
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Bias (rule against) 28, 35, 37, 38 De facto 37, 89

Bias 18, 27, 39 Delegation 14, 25, 57, 58, 106
Delegatus non potest delegare
C 58
Case of decisions 4, 44 Disclosure of information 44
Certiorari (remedy of) 60 Discretionary (enforcement) 64
Certiorari 39, 55, 77, 91, 114, Discretionary nature of the
133 order of mandamus 91
Chamber Summons 112, 113 Discretion (exercise of a ultra
Civil Procedure (Amendment) vires) 64
Rules 102 Discretion (non-exercise) 65
Civil Procedure Act 100 Discretion (improper exercise
Civil Jurisdiction (exercise of) of) 66
99 Discipline of law 86
Clauses (final) 59 Disciplinary proceedings 37, 46
Constitutional principle 93 Discretion executive 56
Constitutional responsibility 3 Discretion (exercise of) 56
Constitutional rights 33 Discretionary power 49, 51
Constitutional supervision 2 Discretion (principle of) 49
Continental system 4 Discretion (judicial) 50-55
Costs 114, 127 Discretion (abuse of) 5, 25, 69,
Criminal jurisdiction 98 85
Cross-Examination 36, 45 E
D Emergency powers (exercise
of) 34
Damages 134
Enforcing review (modes of) 91
Declaratory suit 2
Enforcing review (quo
Declaration 7, 30, 133 warranto) 88
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Index 139
English Act 99 Forum domesticum 46

English law 74 Fundamental rights 12, 29, 30
English Court of Appeal 82 Fundamental rights
(abridgement of) 29, 30, 32
English system 5
Epistolary jurisdiction 135 G
Error (jurisdictional) 18, 21
General predilection 41
Error (of fact) 18, 21, 24
Government authority 83
Error (of law) 18, 23, 24, 91
Giving reasons 45
Estoppel 81-85
Estoppel H
And Judicial Review 84 Habeas Corpus 2, 34
And government policy 84
Doctrine of 81, 84 I
Principle of 84, 85 Illegality (unlawfulness) 18
Against statutory authority
40 Inferior tribunal 92, 93, 94, 95
Restriction of 82 Injunction 3, 7, 132
Exercise of discretion 50 Inter Partes 9, 110, 122
Ex parte 7, 52, 104, 109, 112, Irrationality 9, 18, 28
113 Irrationality (unreasonableness)
Ex debito justitiae 51 18
Ex tenso 32
J
F Judicial discretion 50
Fair hearing (unfair) 27, 28 Judicial power 18, 23
Fairly (duty to act) 37 Judicial Review (application)
109
Fair trial 40
Judicial Review (nature of) 14
Fair tribunal 40
Judicial (history) 3
PLO Lumumba
Judicial Review (in England) Legal representation (and

6, 132 natural justice) 46
Judicial Review (proceedings Legal rules 80
for) 9
Legal right 36
Judicial Review (meaning) 1
Legal Notice number 164 of
Judicial Review 1992 24, 101, 105
Application for 102 Locus standi 71-72, 76, 93,134
Enforcement 87
Locus standi (English approach)
Exclusion of 59-60 72
In Kenya 8, 9, 101, 131
Locus standi (in Kenya) 76
Orders of 122
Locus standi (question of) 125
Recent developments 101
Remedies for 76 Locus standi (proposed changes)
134
Scope of 11
Locus standi (sufficiency of
Jurisdiction of (Court of King’s
interest) 3, 72
Bench) 1, 93
Jurisdiction (epistolary) 135 M
Jurisdiction (of general) 5 Mandamus (meaning) 2
L Mandamus 23, 133
Law 2, 82-83, 97 N
Lawful sentence 31 Natural justice
Law Reform Act 97 Adjournment 45, 54
Leave stage 72, 76, 104, 112, Cross-examination 36, 45
122, 125, 126 Giving reasons 45
Legal right(s) 36, 71 Opportunity to be heard
31, 42
Legal Proceedings 60
Prior notice 42
Legal Notice 101, 105-106, 119
Right to be heard 28, 37,
41, 55
PLO Lumumba
Index 141
Natural justice (breach of) 28, Order (of certiorari) 55, 97, 115,
55 126-127
Natural justice (effect of breach Orders (of mandamus) 1, 89, 95
of) 46
Order 53 (Supreme Court of
Natural justice (rules of) 15-16, England Rules) 6, 101, 104-
28, 31, 32, 36-37, 43, 44, 46, 105
54, 94, 116
Order 53 (amendment)
Natural justice (principles of) 5,
Order 7 6, 119-120, 125, 127
15, 19, 35, 37, 38, 60, 92, 93
Natural justice (breach of P
principles of) 46, 91
Pecuniary interest 27, 39
Natural justice (disobedience of
the rules) 46 Power (abuse of ) 17, 21, 25, 51
Natural justice (violation of) 37 Prerogative orders 91
Nemo debet esse judex in Procedural flaw 18, 28
propria causa 38 Procedure for application 97,
Notice of motion (service) 9, 102, 104
122 Procedural impropriety
Notice of motion 77-78, 122- (unfairness) 18
123, 124-126 Procedural fairness 18-19
Notice to registrar 112 Prerogative orders 91, 97, 132
Principle of natural justice 32,
O
35, 37, 38
Opportunity to be heard 31, 42 Principal collector of customs
Opportunity to cross-examine 54
45 Principle of estoppel 84
Oral hearing 36, 43, 45 Private Rights (of property) 33
Order 53 (of the Civil Proceedings 93, 103, 107, 123,
Procedure Rules) 8, 30, 78, 126
97
PLO Lumumba
Proceedings (against a person) Remedies (exclusive) 64

43
Remedies (widening of) 131
Proceedings (direct pecuniary
Right to be heard 41
interest) 39
Right of appeal 92
Procedural fairness (standards
of) 28 Relevancy and Irrelevancy 26
Procedural fairness (duty of) Remedy of certiorari 4
27, 37 Remedy of injunction 3
Prohibition 93, 133 Rights (absence of) 36
Prohibition (order of) 94-95 Rule(s) (of natural Justice) 41,
Protection (against arbitrary) 34 44
Protection (of law) 34 Rules (of Supreme court) 6, 72
Public authorities 1, 7 Rules of evidence 44
Public interest 33 Rules committee 100, 101
Public law 3, 7
S
Provisions (statutory) 97
Statement 112, 117
Public Interest litigation (in
Kenya) 78, 79 Statutory provisions (under
Kenya law) 97
Q Statutory orders 1, 131
Quasi-judicial 14, 27, 30,35, 39 Statutory provisions (for
Judicial Review) 72
R Statutory duty (breach of) 134
Reasonableness (principle of) Supervisory jurisdiction 3
66
Reforms (suggestions for) 131, T
136 Trial 14, 20, 32, 40
Remedies (other) 11, 101
PLO Lumumba
Index 143
U Unlawfully tortured 30
Ultra vires 18, 19, 31, 92, 107 Unlawful custody 30
Ultra vires (action of) 91 Unlawful imprisonment 30
Unlawful construction 82 Unlawful deprivation 2
Unlawful decisions 2, 12, 133 Unlawful jurisdiction 2

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AN OUTLINE OF

O. Exercise of Emergency Powers and

Chapter Five: Locus Standi

C. Legal Notice number 5 of 1996 .................................. 105

Index ........................................................................... 137

Prof Albert Mumma (PhD Cantab)

Order 53, r 1(1) ...................................................................113

Kenneth Stanley Njindo Matiba v The Attorney-General

Attorney-General, ex parte Mcwhirter v Independent

Lane v Norman [1891] 66 LTR 83 ...........................................58

Re Poyser and Mills Arbitration [1963] All ER 612;

A. MEANING OF JUDICIAL REVIEW

and individually; ipso facto unlawful decisions, must be amenable to

2 Nowrojee, P “Mandamus, Prohibition and Certiorari, Practice, Procedure and Values”

In a nutshell, Judicial Review is the means by which High

B. A BRIEF HISTORY OF JUDICIAL REVIEW

Within the latter category there are administrative tribunals whose

C. THE CONTINENTAL SYSTEM

tribunals of first instance.7 One must acknowledge the value of the

D. THE ENGLISH SYSTEM

Judicial Review has always been treated as an arm of

E. THE NATURE OF THE 1977/81 CHANGES

The procedural disadvantages under which applicants for this remedy

“Before the introduction of the new Order 53 … a declaration could not

F. JUDICIAL REVIEW IN KENYA

19 Chapter 26, of the Laws of Kenya.

“There is no material difference between the rules relating to prerogative

fair treatment by a wide range of authorities, whether judicial, quasi-

4 Miscellaneous civil case number 81 of 1999.

(Protection of Fundamental Rights and Freedoms of the Individual)

B. CONTROL OF ADMINISTRATIVE ACTION

6 Legal Notice number 133 of 2001.

Board of Governors of Pangani Girls’ School indefinitely suspending

14 [1967] 2 QB 864 at 882C and D.

Courts of law may therefore intervene through Judicial Review in

no sensible person who had applied his mind to the question to be

This was illustrated in Ridge v Baldwin,17 in which Charles Ridge

rules, he may truly be said, and often is said, to be acting ‘unreasonably’.

to exercise a jurisdiction which it does not possess or declines to

In cases of jurisdictional error, the inherent powers of the court

22 [1973] AC 854 at 861.

aggregating two periods of employment. In its decision the tribunal

24 Chapter 21 of the Laws of Kenya.

A licensing Board may, for example, entertain as a rule of

H. RELEVANCY AND IRRELEVANCY

It is a basic principle of administrative law that a public body should

and includes giving the concerned party the opportunity to present

34 [1992] 1 WLR 1220, 1230D-E.

N. ABRIDGEMENT OF FUNDAMENTAL RIGHTS

freedoms have been occasioned. Where the instruments of Judicial

at the end of sentence if he lost no remission of sentence. On 17

The above case is quoted in ex tenso because it embraces almost all

42 Civil appeal number 70 of 1991.

request in a manner more respectful to the norms of sound

O. EXERCISE OF EMERGENCY POWERS AND JUDICIAL

48 See Preservation of Public Security Act (Chapter 57) Laws of Kenya.

It is true that the rules of natural justice restrict the freedom

1 High Court civil case number 572 of 1994.

delivering the judgment of the Privy Council in the case of Attorney-

B. DUTY TO ACT FAIRLY