ADMINISTRATIVE LAW II

GPR209
GROUP 8
MOD II EVENING: CONTINUOUS ASSESMENT TEST

GROUP 8 MEMBERS
MAXWELL BUTEMBU LUHONO- G34/142946/2021
ANN MWANGI- G34/143340/2021
GAI LUKA MAYEN- G34/44361/2017
EMILY OTIENO ONYANGO-G34/143694/2021
TERRENCE MUGUBI MAGALO- G34/139187/2020
JOHN MWENDWA-G34/142858/2021
RODNEY OTINDO OBUKWA- G34/143083/2021
KABAKA AKINYI DAVINE-G34/143341/2021
TABLE OF CONTENTS
COVER PAGE .......................................................................................................... 1

INTRODUCTION ..................................................................................................... 3

HISTORY OF PREROGATIVE ORDERS ............................................................... 3

TYPES OF PREROGATIVE ORDERS.................................................................... 5

CERTIORARI................................................................................................................................... 5

PROHIBITION ................................................................................................................................ 7

MANDAMUS ..................................................................................................................................... 8

CHARACTERISTICS OF PREROGATIVE ORDERS ......................................... 10

APPLICATION OF PREROGATIVE ORDERS BEFORE THE 2010

CONSTITUTION .................................................................................................... 11

THE POST-INDEPENDENCE PERIOD:1963-2002 ................................................. 11

JUDICIAL REVIEW BEFORE 2009 ................................................................................. 12

CONCLUSION ....................................................................................................... 14

BIBLIOGRAPHY ................................................................................................... 15
INTRODUCTION
Prerogative orders are a type of remedy that can be granted by a court to correct errors or abuses
of power by public authorities. These orders are based on the common law powers of the courts,
and are a form of judicial review.1 Judicial review refers to power vested in the courts to access
and judicate on the legality of actions undertaken by the legislative and executive arms of
government. The executive and legislature are under obligation to do their duties and carry out
their responsibilities in a manner that is in line with the law or the Kenyan constitution.2 However,
certain actions may be challenged in courts by individuals or organization here the courts, have
the power to assess the legality of actions taken by the executive and legislative arms of the
government. The main purpose of judicial review is it ensures that the government stays within
legal and constitutional bounds, thus promoting the rule of law and ensuring accountability. The
legitimacy of judicial review is established through the supremacy clause in Article 2 of the
constitution, the Law Reforms Act provides the basis for judicial review power and the Civil
Procedure Act regulates its exercise. 3

HISTORY OF PREROGATIVE ORDERS

The word prerogative simply means an exclusive right, privilege or authority earned by virtue of
office. Prerogative orders were also known as writs are commonly defined as written orders
commanding the addresses to stop or to carry out a certain action.4 Writs had many functions in
England, they were used to summon the feudal array, to asses’ taxes, to start an action at law, to
summon jurors, to make a commoner a noble, to levy fines and purveyance, to appoint the chief
justice, to authorize a sheriff to seize the goods of a debtor and many more. 5 As the power of writs
were reserved for the monarchy, the monarch effected control throughout the kingdom over
inferior courts and public authorities. 6

1 Migai Akech, Administrative Law (1st edn, Strathmore University Press), 411
2 https://www.cambridge.org/core/books/abs/judicial-review-of-administrative-action-across-the-common-law-
world/judicial-review-in-kenya/81B408FC7C02742D2E33237F1BF2AF8C
3 Migai Akech, Administrative Law (1st edn, Strathmore University Press), 427
4 Black’s law dictionary
5https://openyls.law.yale.edu/bitstream/handle/20.500.13051/11762/53_32YaleLJ523_1922_1923_.pdf?sequence

=2&isAllowed
6https://en.wikipedia.org/wiki/Prerogative_writ
A writ carried the character of a royal command, the Clarendon ordinance of 1166 issued by Henry
H laid the foundation for English criminal law.7 By establishing the institution of the grand jury in
which, following a presentment by a local jury for a crime against the peace of the crown the
crowns officers would proceed to indict the accused offender before the king’s justices’ courts.
Because the king could not be sued in his own courts, the need arose to limit the king's authority
by establishing laws solely through the parliament. According to the common law tradition, no
new prerogatives could be created, and the courts could only enforce the existing ones. Writs were
then issued when the principles of naturals justice were not observed and developed as a way of
individuals to challenge abuses of power by the monarch and other public authorities. This depicts
the fight for power inside the United Kingdom between the monarch and the parliament.8

In Kenya prerogative orders have their origins in the country's colonial past, the Law reform
ordinance of 1956 formed the basis for development of judicial review as it was the then legal
system. The British government built a legal system during the colonial era that included the use
of prerogative orders to address abuses of authority by colonial authorities. Even though there was
a legal system in Kenya throughout the colonial period, the common law safeguards were only
available to the privileged races, the citizens. It was unthinkable that an African, a mere subject,
could have dared to initiate a judicial review case against the colonial state, no matter how greatly
he was wronged by government action.9 Since independence the law has seen an evolution where
Kenyan courts have been active in using prerogative orders to defend individual rights and
challenge illegal or unconstitutional government activities. 10 In the case of Charles Rubia, a
Kenyan politician and former mayor of Nairobi was arrested by the Kenyan government without
trial in 1982, which was part of a crackdown on opposition politicians and activists, and it was
widely perceived as a breach of his human rights and the rule of law. Rubia's family and allies
petitioned the Kenyan High Court, claiming that his incarceration was unlawful and
unconstitutional. The court agreed and issued a writ of habeas corpus directing the authorities to
immediately release Rubia. 11 This case helped set precedent for the use of prerogative orders as an

7 https://www.cambridge.org/core/books/abs/judicial-review-of-administrative-action-across-the-common-law-
world/judicial-review-in-kenya/81B408FC7C02742D2E33237F1BF2AF8C
8 https://www.studocu.com/row/document/administrative-law/admin-prerogative-orders/8938918
9 Judicial Review in Kenya The Ambivalent Legacy of English Law Migai Akech
10 Ibid,10
11Rubia V. Commissioner of Police & Attorney General (1982)
effective tool to fight against abuses of power by the government. Prerogative orders have been
utilized in a number of high-profile instances in Kenya in recent years, including challenges to the
government's use of force against demonstrators and its handling of refugees and asylum seekers.12
These directives have been essential in improving openness and accountability in the Kenyan
government and protecting the rights of its citizens. Judicial review in the colonial and later in the
post-colonial period was a common law prerogative but is now a constitutional principle to
safeguard the constitutional values and principles.

TYPES OF PREROGATIVE ORDERS

Prerogative orders are orders issued by the Judicial Review court in Kenya while exercising its
supervisory jurisdiction over lower courts, tribunals and other public authorities. They are used to
protect the rights of individuals and uphold the rule of law. Prerogative orders are an important
tool for ensuring that government officials act within the limits of their authority and do not abuse
their power. They provide a means for individuals and organizations to challenge decisions that
may be arbitrary, unlawful, or unfair, and they help to maintain the integrity of the legal system.
There exist three prerogative orders applicable in judicial review in the Kenyan legal system as
provided by section 8 of the Law Reform Act CAP 26, which are:

1. Certiorari
2. Prohibition
3. Mandamus

CERTIORARI
Certiorari is a Latin word that means to be informed. 13 It was initially used by royals to demand or
command for information. The sovereign upon receiving a petition form their subject of some
injustice that had occurred to them, the sovereign would state their wish to be verified on the matter
and order it be brought to them. Ordering the matter be brought before them would also include
the records of the proceedings be brought forth, as every document was recorded and writing was

12 https://www.cambridge.org/core/books/abs/judicial-review-of-administrative-action-across-the-common-law-
world/judicial-review-in-kenya/81B408FC7C02742D2E33237F1BF2AF8C
13 https://uk.practicallaw.thomsonreuters.com/9-508-

3731?transitionType=Default&contextData=(sc.Default)#:~:text=Latin%20term%20that%20means%20%22to,of%20
the%20lower%20court's%20decision.
a special skill records had a finite value and were handled with utmost importance. The purpose
of ordering for such records is that the sovereign would quash any decision made as they would
deem fit after familiarization with the matter. 14

In Kenya certiorari is a legal term that refers to a type of judicial review allowing a higher court to
review a decision made by a subordinate court or an administrative body. Specifically, certiorari is
a legal order by a higher court directing a lower court or administrative body to send up record of
particular case for review. It’s purposed to ensure that lower courts or administrative bodies have
not exceeded their juridistiction, made errors of law or acted unfairly in the making of their
decisions. Modern day applications of the order of certiorari are to overturn decisions that may
violate the law and also to dispute ultra vires decisions.15 Certiorari is granted after the body in
question has concluded its work, disposed of a matter, and made its decision.

David Onyango Oloo v. Attorney general, the defendant who was at the time imprisoned filed a
petition for a writ of certiorari challenging a letter from the commissioner of prisons to the officer
in charge of Kamiti prisons revoking his pardon of leniency. The court of appeal held that the
commissioner’s decision to deny leniency was ultra vires, illegal, null and void and the decision
was quashed.16

Certiorari is granted not just to statutory bodies, but also to non-statutory bodies that are required
to act judicially and serve a public function.17 There are certain grounds one must have when
seeking the order of certiorari which include:

a. A void order- this refers to a ruling or decision which is null and of no effect. The void
order cannot vanish on its own record. therefore, certiorari may be a required remedy in
overturning a decision that is void.
b. An error of juridistiction- A jurisdictional error occurs when a decision-maker exceeds his
or her authority that has been given to them. It may also be seen that a decision-maker has

14 https://www.cambridge.org/core/books/abs/judicial-review-of-administrative-action-across-the-common-law-
world/judicial-review-in-kenya/81B408FC7C02742D2E33237F1BF2AF8C
15 The Knowledge (Tree Law Notes) JUDICIAL REVIEW GEERALLY-KENYA https://ogekazacharia.blogspot.com

(accessed on 31st January, 2020)

16 David Onyango Oloo V Attorney General, civil appeal No. 152 of 1986
17 https://www.studocu.com/row/document/universiti-teknologi-mara/administrative-law/certiorari-admin-

law/10964058
 failed to meet an essential condition or constraint on the lawful exercise of authority,
rendering their decision invalid.
c. Procedural defect- Failure to follow the rules of natural justice, when an authoritative figure
is required to do so renders its judgment null and void. If these standards are considered
obligatory. Certiorari may be granted to overturn a decision issued in violation of certain
standards. Due to the disregard of an obligatory an action or decision may be considered
unlawful or exceeding or misusing its jurisdiction. Whether or not a procedure is ignored
invalidates administrative action is determined by whether the procedure is considered
mandatory or advisory.18
d. Error of law- this is a legal principle that refers to one or more mistakes committed by a
person in comprehending how the applicable law applied to their prior action that is being
investigated by a court. 19 The concept of an error in law may be difficult to define
accurately as there will always exist a difference in its very nature, which must be
determined judicially on the circumstance of each case.

PROHIBITION
This order as its name in prohibitory in nature, it seeks to stop unlawful actions. A prohibition
order that is issued by a court prohibiting a public body or individual from performing a particular
action.20 The purpose of a prohibition order is to prevent an administrative body or any officials
from acting unlawfully or beyond its powers. It’s a remedy issued before the completion of a said
action by a certain body. It is an order form the high court to subordinate courts prohibiting the
continuation of proceedings that may be in excess of their juridistiction or contravene with existing
laws. For example, a court may issue a prohibition order to prevent a government agency from
implementing a policy that is inconsistent with the law or the constitution. 21

18https://www.studocu.com/row/document/universiti-teknologi-mara/administrative-law/certiorari-and-
prohibition/16280667
19https://en.wikipedia.org/wiki/Mistake_of_law#:~:text=Mistake%20of%20law%20is%20a,differentiated%20from%

20mistake%20of%20fact.
20https://signon.thomsonreuters.com/?productid=PLCUK&viewproductid=UKPL&lr=0&culture=en-

GB&returnto=https%3a%2f%2fuk.practicallaw.thomsonreuters.com%2fCosi%2fSignOn%3fredirectTo%3d%252f9-
508-
21https://openyls.law.yale.edu/bitstream/handle/20.500.13051/11762/53_32YaleLJ523_1922_1923_.pdf?sequenc

e=2&isAllowed=y
Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others
22
expressed itself inter alia as follows:

“Prohibition looks to the future so that if a tribunal were 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 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 a contemplated
decision…Prohibition is an order from the High Court directed 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 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”

To obtain a prohibition order, an individual or organization must demonstrate that the government
action or decision in question is illegal or unconstitutional. They must also show that they have a
sufficient interest in the matter and that they have exhausted all other available remedies.
Prohibitory orders are prospective in nature. In the case of R v Liverpool Corporation, the
corporation had increased the number of taxi licenses contrary to the public and written
undertaking to the taxi associations not to do so until a private bill was passed. The applicants
sought relief on the ground that the decision was made without fair hearing. The council was then
prevented from issuing licenses until the interested parties had been listened to.23 Also, in the case
of Stanley Munge Gothenburg V Republic, Stanley Munge Gothenburg was able to get an order
prohibiting the Chief Magistrate of Nairobi from trying him when such a trial would amount to an
abuse of the process of the Chief Magistrate’s court

MANDAMUS
A writ of mandamus is an order that is issued by a superior court to compel a public official,
corporation or inferior court to perform a public duty that they are required to do by law. The writ

22 Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No.
266 of 1996 (CAK) [1997] eKLR
23 R v Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299
of mandamus is used as a remedy to enforce the legal rights of a person or an organization when
the public official or agency has failed to carry out their legal duty. 24 Similarly, if a public official
has failed to perform their legal duty, such as making a decision or taking action, a writ of
mandamus can be sought to compel the official to perform their duty. For an order of mandamus
to be granted, the applicant must have requested that a public obligation be fulfilled and been
denied or neglected. The responsibility must be a distinct duty.

Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge &
Others25 expressed itself inter alia as follows: “The order of mandamus is of a most extensive
remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to
any person, corporation or inferior tribunal, requiring him or them to do some particular thing
therein specified which appertains to his or their office and is in the nature of a public duty. Its
purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may
be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing
that right; and it may issue in cases where, although there is an alternative legal remedy, yet that
mode of redress is less convenient, beneficial and effectual. The order must command no more than
the party against whom the application is legally bound to perform….”

For the order of mandamus to be issued it must be proved that the duty is not general but specific,
it cannot issue an order that a duty be performed in a certain way if the legislation imposing the
duty gives the person to whom the responsibility is given a choice over how to carry out their
duties. For the writ of mandamus to be granted there must be a purely ministerial act contrary to a
discretionary act, a purely ministerial act or duty is one that an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment on the propriety or impropriety of the act done. If
the law puts a responsibility on a public servant and provides him the authority to decide how or
when the obligation is to be carried out, the duty is discretionary rather than ministerial. An order
of mandamus compels the performance of a duty imposed by statute when the person or entity on
which the duty is imposed fails or refuses to do so. However, mandamus is the incorrect remedy

24 https://www.studocu.com/row/document/universiti-teknologi-mara/administrative-law/certiorari-and-
prohibition/16280667
25 Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No.

266 of 1996 (CAK) [1997] eKLR

to use if the complaint is that the duty has been performed incorrectly, that is, not in accordance
with the law.

Example of case law: Okiya Omtatah Okoiti v Attorney General & 2 Others [2013] 26, in this case,
the petitioner sought a mandamus order compelling the Independent Electoral and Boundaries
Commission (IEBC) to enforce the law requiring political parties to comply with the gender
equality principle in their nomination of candidates. The High Court granted the order, directing
the IEBC to ensure that political parties comply with the law.

CHARACTERISTICS OF PREROGATIVE ORDERS

Prerogative orders are orders issued by the Judicial Review court in Kenya while exercising its
supervisory jurisdiction over lower courts, tribunals and other public authorities that make
decisions that have an impact on people’s lives. They are used to protect the rights of individuals
and uphold the rule of law. Prerogative orders are an important tool for ensuring that government
officials act within the limits of their authority and do not abuse their power. They provide a means
for individuals and organizations to challenge decisions that may be arbitrary, unlawful, or unfair,
and they help to maintain the integrity of the legal system.

1. These orders are mandatory in nature. These orders are used to direct, overrule, stop or
compel a particular action or inaction to whomever they are addressed. They require absolute
compliance with the, this means that the government is required to comply with the orders
issued by the court. Failure to comply with a prerogative order can result in contempt of court
proceedings, which can lead to fines or imprisonment for the government official or agency
in question.27 This binding effect ensures that the government is held accountable for its
actions and decisions, and that individuals have a means of seeking redress when their rights
have been violated.
2. Prerogative orders are granted as extraordinary relief. The writs of certiorari, prohibition and
mandamus when granted are considered as extraordinary remedies. For one to move the court
to issue such orders they must have explored and exhausted other possible legal avenues or
other avenues may have been insufficient. Courts will only issue a prerogative order if the

26 Okiya Omtatah Okoiti v Attorney General & 2 Others [2013] eKLR

27 P Kaluma, Judicial Review: Law, Procedure and Practice (2012)
 circumstances warrant the use of this type of remedy, and if no other legal remedy is available
to the individual.28
3. The orders are issued exclusively by the high court or superior courts to it. These writs can
only be issued by higher courts directing subordinate courts or directing administrative
bodies.
4. They are issued for a number of limited reasons. These orders have a limited scope in that
they are issued for specific reasons to perform a specific or limited purpose, such as
correcting an error by a court or compelling an administrative body to performing an act or
prohibiting it from acting. Prerogative orders are not designed to address every type of legal
dispute or violation of rights. Instead, they are focused on specific situations where
government action has harmed an individual or violated their legal rights.
5. Prerogative orders are issued at the court’s discretion.29 This means that the court has the
power to determine whether or not the circumstances warrant the use of this type of remedy.
Because prerogative orders are extraordinary remedies, courts are often reluctant to issue
them unless there is a clear and compelling case for doing so. This discretion allows the court
to ensure that the use of prerogative orders is limited to cases where they are truly necessary.
6. Prerogative orders are a legal remedy that courts can grant in response to a challenge made
by an individual or group. Unlike other types of remedies, such as damages or injunctions,
which aim to address a range of legal disputes, prerogative orders are specifically designed
to target government actions or decisions that have breached someone's legal rights. This
makes them a unique and powerful legal instrument for safeguarding individual rights and
ensuring that the government operates within the confines of its authority. To move a court
to issue these writs must be subject to certain legal requirements and certain limitations. They
can only be granted by a court where there is a legal clear basis for their issuance.

APPLICATION OF PREROGATIVE ORDERS BEFORE THE 2010 CONSTITUTION

THE POST-INDEPENDENCE PERIOD:1963-2002
The exercise of judicial powers was not regulated and often prone to abuse therefore the Kenyan
courts were hesitant to challenge or question the government. As the judiciary was not rightly

28 Camnock Chase District Council versus Kelly [1978] KB

29 Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; [2022] eKLR
independent and used as a tool to silence and crush dissent. 30 The ability to nominate the Chief
Justice passed to the president, who was no longer compelled to consult anybody. The constitution
provided that the president was mandated to consult the JSC before choosing judges, however,
there was little to no consultation in practice.31Section 62 of the Constitution also stipulated that
the President could fire the Chief Justice and any other judicial officer if an impartial body
recommended their removal for failure to perform or misconduct. The majority of the judges
selected by the president were expatriates who knew their term was precarious and hence avoided
upsetting the executive or legislature. This all allowed for the government to exert control over the
courts and as a result, undermining judicial independence. The courts then would choose to
examine statutory tribunal and local authority decisions, all while they interpreted the constitution
narrowly and were cautious not to ‘substitute their policy views for those of legitimately authorized
government officials.’

Judges were more inclined to defer to the executive's viewpoint if the official action complained
of was guided by a government policy, such as one pertaining to the maintenance of public order. 32
This cautious approach was frequently used in instances involving personal liberty, freedom of
expression, and freedom of movement. Under these conditions, judicial scrutiny had little role in
reining in executive power. 33 As a result, the government kept control of the judiciary, which
remained a crucial tool the judiciary's ability to perform its role as an independent arbiter of justice
was severely curtailed. In addition, few individuals were willing to confront the authoritarian and
executive, the government sought to inherit the colonial administration’s power edifice, and not to
replace it. Its objective was continuity, not revolution. Thus, the executive retained its hold on the
judiciary, and such judicial review and application of prerogative order was foreign practice.

JUDICIAL REVIEW BEFORE 2009

Although the courts exercised their common-law based power of judicial review and struck down
numerous acts of government during this period, their effectiveness to check the abuse of
governmental power was constrained by three primary factors;

30 Judicial Review in Kenya the Ambivalent Legacy of English Law Migai Akech
31 Seidman, “Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa” 841.
32 J. B. Ojwang and J. A. Otieno-Odek, ‘The Judiciary in Sensitive Areas of Public Law: Emerging Approaches to

Human Rights Litigation in Kenya’, (1988) 35 Netherlands International Law Review 29

33 Judicial Review in Kenya the Ambivalent Legacy of English Law Migai Akech
1. Order 53 established restrictive and technical rules of procedure, whose effect was to limit
access to judicial review. Courts insisted on strict adherence to the requirements and timelines of
Order 53, with the result that many arguably meritorious applications were dismissed on
technicalities.34
2. For a long time the courts adopted a restrictive approach to standing, with the effect that judicial
review applications were not always determined on the merits. Kenyan courts tended to discourage
such individuals, by insisting that they had to have a personal stake in the matters before the
courts.35 Such individuals, therefore, had to demonstrate that they had suffered some concrete
injury in order to be granted standing. The courts only begun to depart from this rigid approach in
the late 1990s, granting standing to applicants who could demonstrate that they had a sufficient
interest in the matter in question, and complied with the procedural requirements of Order 53.
Courts should certainly discourage meddlesome interlopers from invoking their jurisdiction in
matters that do not concern them,36 however, a person with an otherwise meritorious challenge to
the validity of a governmental action should not be turned away on the mere ground that his or her
rights or interests are not sufficiently affected by a decision he or she opposes. As maintaining the
rule of law would mean encouraging public-spirited individuals to challenge unlawful
administrative action.
3. As has been previously stated, the judiciary was subservient to the executive and judges and
lacked decisional independence, with the result that the courts tended to adopt an unduly
deferential and minimalist approach to exercising their powers,37 including judicial review,
particularly when confronted with political questions. Even where the courts exercised their
judicial review power to strike down offending acts of government during this period, the
executive tended to ignore the orders of the court. The case of Kenya African National Union v
Mwai Kibaki,38 illustrates this trend. Here, the applicant, the Kenya African National Union (or

34
See, for example, Republic v. Funyula Land Disputes Tribunal Busia Principal & 2 others [2014] eKLR (stating that
“the court finds that the application for leave was applied for outside the six months statutory window… and
therefore, the court cannot exercise its discretion in favor of the ex parte applicant, however deserving his
application would otherwise be.”)
35 See, for example, Wangari Maathai v. The Kenya Times Media Trust, Nairobi High Court Civil Case No. 5403 of

1989 (unreported
36 Jowell et al, De Smith’s Judicial Review (6th edition, Sweet & Maxwell, London, 2007) at 70
37 See, for example, Migai Akech and Patricia Kameri-Mbote, “Kenyan Courts and the Politics of the Rule of Law in

the Post-Authoritarian State from 1991 to 2010,” (2012) 18 East African Journal of Peace and Human Rights 357
38 Kenya African National Union v Mwai Kibaki [2005] eKLR
KANU) had filed an application seeking, among others, orders to quash an executive order by
which the government had purported to “repossess” a building that housed the applicant’s
headquarters, and to restrain the government from taking possession of the building. The court
obliged. However, the minister to whom the order was addressed simply defied the court.
Likewise, in Taib A. Taib v Minister for Local Government,39 the applicant had been nominated
to serve on, and shortly thereafter elected mayor of, the Municipal Council of Mombasa. The
Minister for Local Government revoked the nomination by a Gazette Notice. Aggrieved by this
decision, the applicant filed an application for judicial review, seeking orders to quash the decision
and prohibit the Minister from interfering with his exercise of the office of mayor. The court
granted these orders. However, the Minister defied the court. No action was taken against such
defiant ministers. This contributed to creating a perception among Kenyans that there was a
“widespread culture of defiance of court orders”. We can therefore see that, just as in the colonial
era, English law was, in the period 1963-2010, on one hand deployed effectively as an instrument
of power, while on the other hand there was the allure that law, including judicial review, could
constrain the exercise of governmental power.

CONCLUSION
In conclusion, prerogative orders are a key tool for protecting individual rights and ensuring that
government officials are held accountable for their actions. They are judicial remedies that are
designed to provide speedy relief in specific circumstances where no other legal remedy is
available. In conclusion, prerogative orders have been recognized as a form of judicial review that
allows the courts to exercise control over the actions of public officials and bodies. Through the
use of prerogative orders such as mandamus, certiorari, prohibition, and habeas corpus, the courts
can ensure that public bodies act within their legal limits and that individual rights are protected.
While there have been criticisms of the use of prerogative orders, particularly in terms of the
potential for judicial overreach, their importance in upholding the rule of law and maintaining the
balance of power between the judiciary and the executive cannot be underestimated. As such, the
use of prerogative orders as a form of judicial review is an essential component of the legal system,
and one that is likely to remain so in the years to come.

39 Taib A. Taib v Minister for Local Government [2006] eKLR.

BIBLIOGRAPHY
Articles

1. Judicial Review in Kenya the Ambivalent Legacy of English Law Migai Akech
2. Seidman, “Judicial Review and Fundamental Freedoms in Anglophonic Independent
Africa” 841.
3. J. B. Ojwang and J. A. Otieno-Odek, ‘The Judiciary in Sensitive Areas of Public Law:
Emerging Approaches to Human Rights Litigation in Kenya’, (1988) 35 Netherlands
International Law Review 29

Case law

1. Camnock Chase District Council versus Kelly [1978] KB

2. Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; [2022]
eKLR
3. Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge
& Others Civil Appeal No. 266 of 1996 (CAK) [1997] eKLR
4. Kenya African National Union v Mwai Kibaki [2005] Eklr
5. R v Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators’ Association [1972] 2 QB
299
6. Stanley Munge Gothenburg V Criminal Application No. 271 of 1985(unreported)
7. David Mulei Mbuvi v. Bishop Silas Yego and the Registrar of Societies, miscellaneous
application of no. 155 of 2006
8. David Onyango Oloo V Attorney General, civil appeal No. 152 of 1986
9. Taib A. Taib v Minister for Local Government [2006] eKLR.
10. Rubia V. Commissioner of Police & Attorney General (1982)