Professional Documents
Culture Documents
Migai Akech
Abstract
This Chapter considers the evolutions in the practice of judicial review in Kenya,
and the continued relevance of English law, in the broader context of the role of
judicial review in facilitating the attainment of democratic governance. It argues
that English law bequeathed to Kenya an ambivalent legacy that continues to
shape the exercise of the judicial review power. In theory, law has promised to
provide a bulwark against the abuse of governmental power. In practice,
however, it has largely served to facilitate authoritarianism. The Chapter begins
by locating judicial review in the context of governance in colonial and post-
colonial Kenya. It then examines the nature and role of judicial review in the
Kenya colony, Independent Kenya, and more recently after the promulgation of
the Constitution of Kenya 2010.
Key words
I. Introduction
2 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism
(Princeton University Press, 1996).
3 Y.P. Ghai and J.P.W.B. McAuslan, Public Law and Political Change in Kenya: A Study of the Legal
Framework of Government from Colonial Times to Present (Oxford University Press, Nairobi,
1970) 47-50, 163-166.
4 Ghai and McAuslan at 3.
5 Ghai and McAuslan at 15.
6 Ghai and McAuslan at 16.
7 Ghai and McAuslan at 18. While this may be typical of colonial governance, the unequal
treatment is stark: residents denied citizenship rights and were subject to oppressive laws, such
as the East Africa Order in Council 1897, S.R.O. 1575/1897.
18 J.B. Ojwang, Constitutional Development in Kenya: Institutional Adaptation and Social Change
(ACTS Press, Nairobi, 1990) 31.
19 Ghai and McAuslan at 24.
20 Nyali Ltd v Attorney-General [1956] K.B. 1 at 15.
21 Sandra F. Joireman, “The Evolution of the Common Law: Legal Development in Kenya and
India” (2006), Richmond School of Arts & Sciences, Political Science Faculty Publications, Paper
68, at 4.
22 See the contribution by Farrah Ahmed and Swati Jhaveri on India in this volume for an
the Reception of Foreign Law” (1970) 5 Law & Society Review 161 at 181.
24 H.W.O. Okoth-Ogendo, “Constitutions without Constitutionalism: Reflections on an African
term “imperial presidency” denotes presidential supremacy, which is created through the
appropriation by the president of the powers reserved by the constitution to other branches of
government.
29 Okoth-Ogendo at 71.
30 H. Kwasi Prempeh, “Marbury in Africa: Judicial Review and the Challenge of Constitutionalism
46 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism (Princeton University Press, 1996) 73-74.
47 Mamdani, Citizen and Subject at 74.
48 Mamdani, Citizen and Subject at 77.
49 Mamdani, Citizen and Subject at 77.
50 Seidman, “Administrative Law and Legitimacy in Anglophonic Africa” at 193.
51 Mamdani, Citizen and Subject at 77.
52 Mamdani, Citizen and Subject at 77.
10
11
12
13
Although there were two main political parties (the Kenya National African
Union or KANU and the Kenya African Democratic Union or KADU) when Kenya
became independent in 1963, the country quickly joined the ranks of the one-
party states when KADU was dissolved in 1964 and its members joined KANU.83
The Independence Constitution of 1963, designed by Whitehall technicians to
establish democratic methods of governance, was quickly rendered useless
through a series of amendments that consolidated power in the president84.
Kenya was to remain a de facto one party state until 1982, when, following an
announcement by a number of prominent government critics that they would
form an opposition party, the legislature amended the constitution to legalize the
one-party system.85 Dissent was not tolerated in the one-party state, for the most
part and governance was characterized by oligarchic rule, with an imperial
president at the helm.
The oligarchy prescribed a fairly narrow role for the judiciary. Indeed, the
judiciary played a significant role in protecting the interests of the oligarchy. 86 In
many ways, this represented a continuation of the policies and practices of the
81 James C.N. Paul, “Some Observations on Constitutionalism, Judicial Review and Rule of Law in
Africa” (1974) 35 Ohio State Law Journal 851 at 862.
82 Paul, “Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa” at
862.
83
See Ojwang, Constitutional Development in Kenya at 47 for a further discussion of the events
relating to the dissolution of KADU and transfer of its members to KANU. The one party-state
had been justified as “the only rational and practical course in the organisation of new African
states.” Ojwang, Constitutional Development in Kenya at 46.
84 See Okoth-Ogendo, “The Politics of Constitutional Change in Kenya”.
85 Republic of Kenya, Constitution of Kenya amended in 1982 (1969).
86 Kuria G. Kamau and J. B. Ojwang, “Judges and the Rule of Law in the Framework of
Politics: The Kenya Case”, (1979) Public Law 254.
14
On the basis that an impartial and independent judiciary would be required if the
rule of law were to thrive in Kenya, section 184 of the independence constitution
established a Judicial Service Commission (JSC) to regulate matters such as
judicial appointments and discipline. Under section 172 of this constitution, the
Chief Justice was to be appointed by the Governor-General, acting in accordance
with the advice of the Prime Minister, while other judges were to be appointed
by the Governor-General acting in accordance with the advice of the JSC. To
further solidify the position of the judicial officers, this constitution provided
that offices of judges could not be abolished when there was a substantive office
87 See, for example, Gary Wasserman, “The Independence Bargain: Kenya Europeans and
the Land Issue 1960-1962”, (1973) Journal of Commonwealth Political Studies 99.
88 Kuria and Ojwang at 61.
89 Republic of Kenya, Constitution of Kenya 2010.
90 See, for example, Kibaki v. Moi and 2 others (No.2) (2008) 2 KLR 308. Here, the High Court
struck out a petition questioning the validity of the election of the president, on the grounds that
the president had not been personally served with the petition. The Court of Appeal affirmed this
decision in Kibaki v. Moi (No.3) (2008) 2 KLR 351. These judicial decisions were criticized for
claiming that the electoral law mandated personal service, yet the text of this law only required
the presentation and service of election petitions without stipulating how such presentation or
service was to be effected.
91 See Migai Akech, “Abuse of Power and Corruption in Kenya: Will the New Constitution Enhance
15
841.
95Paul Mwangi, The Black Bar: Corruption and Political Intrigue Within Kenya’s Legal Fraternity
(2001) 114. Until 1989, the judiciary was treated as a branch of the public service.
16
96 For example, the Chief Justice would issue circulars indicating the courts where litigants could
file their cases or applications. One such circular stated that judicial review applications could
only be filed in Nairobi, the capital city. See, for example, “Lawyers Threaten Suit Against CJ”,
Daily Nation, Tuesday, June 22, 2004, available at https://www.nation.co.ke/news/1056-15322-
117bmcj/index.html.
97 Sir Charles Newbold, The Role of a Judge as a Policy Maker, (1969) 2 East African Law
Review 127 at 133.
17
98 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.
99 Ojwang and Otieno-Odek.
100 Judicature Act, Chapter 8, Laws of Kenya.
101 Law Reform Act, Chapter 26, Laws of Kenya.
102 Civil Procedure Act, Chapter 21, Laws of Kenya.
103 This limited jurisdiction meant that the High Court could not grant remedies other than
mandamus, prohibition and certiorari. See, for example, Jotham Mulati Welamondi v Chairman,
Electoral Commission of Kenya [2002] 1 KLR 486.
104 Law Reform Act, section 9.
105 See, for example, Kasuli v. A.G. [1971] E.A. 423; Shah v. A.G. (No.2) [1970] E.A. 523; Shah v.
A.G. [No. 3] [1970] E.A. 543; Shah Vershi Devshi v. Transport Licensing Board [1971] E.A. 289;
Somani’s v. Shirikhanu [1970] E.A. 580; Chaganlal v. Kericho U.D.C. [1965] E.A. 376; Re Maina,
High Court of Kenya Misc. Cause No. 7 of 1969 (unreported); Fernandes v. Kericho Liquor
Licensing Court [1968] EA 640.
18
Despite such exceptions, judicial review largely remained moribund until the
dawn of multi-party democracy in the 1990s. An increasingly enlightened public
– mostly the elite107 – began to push back against state tyranny, and on occasion
resorted to judicial review. For example, university student leaders, who were at
the forefront of the clamor for democracy, were sometimes suspended or even
dismissed by their universities, and consequently brought judicial review actions
to challenge such decisions.108 University lecturers constitute another group that
was at the forefront of the clamor for democracy and that turned to the courts
seeking judicial review orders to confront state-induced tyranny.109 For the first
time, individuals even acquired the courage to question the decisions of the
Boards of Governors of high schools.110
Although the courts exercised their common-law based power of judicial
review and struck down numerous acts of government during this period,111
their effectiveness to check the abuse of governmental power was constrained
by three primary factors. First, 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
40 of 2001 (unreported); Geoffrey Mwangi Kariuki v University of Nairobi, Misc. Application No.
4788 of 1992 (unreported).
109 See, for example, Daniel Nyongesa and others v Egerton University College [1990] KLR 692; R
v the Staff Disciplinary Committee of Maseno University and others ex parte Prof. Ochong’ Okello,
Kisumu Misc. Application No. 227 of 2003.
110 See, for example, Elizabeth Wainaina and others v Board of Governors of Pangani Girls School,
(Contending that judicial review has grown “rapidly in scope and pertinence,” and “extended its
application to areas, powers and institutions that were traditionally believed to be beyond the
reach of the court’s supervisory jurisdiction.”)
19
112 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 favour of
the ex parte applicant, however deserving his application would otherwise be.”)
113 Jowell et al, De Smith’s Judicial Review (6th edition, Sweet & Maxwell, London, 2007) at 70.
114 Jowell et al, De Smith’s Judicial Review at 70.
115 Jowell et al, De Smith’s Judicial Review at 70.
116 Jowell et al, De Smith’s Judicial Review at 71.
117 See, for example, Wangari Maathai v. The Kenya Times Media Trust, Nairobi High Court Civil
East African Television Network Limited, Nairobi High Court Misc. Civ. App. No. 403 of 1998
(unreported).
20
119 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.
120 Kenya African National Union v Mwai Kibaki [2005] eKLR.
121 Taib A. Taib v Minister for Local Government [2006] eKLR.
122 Winnie Mitullah et al, Kenya’s Democratisation: Gains or Losses? (Nairobi, Claripress, 2005) 52-
53.
21
123 See Migai Akech, “Constraining Government Power in Africa” (2011) 22 Journal of Democracy
96.
124 Akech, “Constraining Government Power in Africa” at 98.
125 Akech, “Constraining Government Power in Africa” at 102.
126 Akech, “Constraining Government Power in Africa” at 102.
127 See the contributions on Australia and South Africa in this volume for comparative
22
from its Common Law Shackles,” (2011) 55 Journal of African Law 105 (Arguing that the
Constitution of Malawi 1994 has fundamentally altered the substantive law of judicial review,
and that Order 53 of the Rules of the Supreme Court of England is subservient to section 43 of
this constitution).
132 See Constitution of Kenya 2010, Sixth Schedule, Clause 7(1), which provides that “All law in
force immediately before the effective date continues in force and shall be construed with the
alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with
this Constitution.”
133 Dry Associates Limited v. Capital Markets Authority & another [2012] eKLR, para. 62; see also
Multiple Hauliers East Africa Limited v. Attorney General & 10 others [2013] eKLR.
23
24
As mentioned in the introduction to Section V above, there are multiple bases for
judicial review. The practice of judicial review has rather been confusing since
the promulgation of the Constitution of 2010. While some applicants approach
the court by way of constitutional petitions (in which they seek all manner of
orders, including judicial review orders142), others continue to approach the
court via Order 53.143 And the courts have continued to entertain both kinds of
applications. In Michael Mungai v. Attorney General,144 for instance, the court
sought to draw a distinction between what it termed an application for “judicial
review simpliciter” and a constitutional petition, but acknowledged that a person
could apply for judicial review using either of these routes.145 It went on to
observe that an applicant who filed an application for judicial review simpliciter
had to comply with the requirements of Order 53, including seeking prior leave
and asking only for the prerogative orders (as contemplated by section 8 of the
Law Reform Act).146 Because the applicant here had failed to seek prior leave, the
court determined that his application was incompetent.147
A similar approach was adopted in Khobesh Agencies Limited & 32 others v.
Minister of Foreign Affairs & International Relations & 4 others.148 Here, the
applicants had sought to rely on a ground that was not stated in their ‘statutory
statement’. Rule 4(1) of Order 53 states that a party is not entitled to rely on any
ground or seek any relief apart from the ones indicated in their statement
accompanying their application for leave, otherwise known as a statutory
statement. The court ruled that the application was incompetent for seeking to
142 Article 22(1) of Constitution of Kenya 2010 provides that “every person has the right to
institute court proceedings claiming that a right has been denied, violated or infringed, or is
threatened.” Further, article 23(3)(f) of this Constitution provides that in any such proceedings,
“a court may grant appropriate relief, including: (a) a declaration of rights; (b) an injunction; (c) a
conservatory order: (d) a declaration of invalidity of any law…; (e) an order for compensation;
and (f) an order for judicial review.
143 See, for example, Peter Muchai v. Teachers Service Commission [2015] eKLR.
144 Michael Mungai v. Attorney General & 9 others [2015] eKLR.
145 Michael Mungai v. Attorney General & 9 others at para. 6.
146 Michael Mungai v. Attorney General & 9 others at 6 & 9.
147 Michael Mungai v. Attorney General & 9 others at para. 9.
148 Khobesh Agencies Limited & 32 others v. Minister of Foreign Affairs & International Relations &
25
149 Khobesh Agencies Limited & 32 others v. Minister of Foreign Affairs & International Relations &
4 others [2013] eKLR at para. 31.
150 Khobesh Agencies Limited & 32 others v. Minister of Foreign Affairs & International Relations &
eKLR.
155 Republic v. Kahindi Nyafula & 3 others ex parte Kilifi South East Farmers Cooperative [2014]
eKLR at para. 9.
26
156 But see Republic v. Director of Public Prosecutions & another ex parte Chamanlal Vrajlal Kamani
& 2 others at para. 144 [2015] eKLR (stating that “a declaration does not fall under the purview of
judicial review for the simple reason that the court would require viva voce evidence to be
adduced for the determination of the case on the merits before granting the declarations
sought.”)
157 Peter Muchiri Muhura v. Teachers Service Commission [2015] eKLR.
158 Peter Muchiri Muhura v. Teachers Service Commission [2015] eKLR.
159 Peter Muchiri Muhura v. Teachers Service Commission [2015] eKLR.
160 Meshack Ageng’o Omondi v. Eldoret Municipal Council and another [2012] eKLR.
161 Meshack Ageng’o Omondi v. Eldoret Municipal Council and another [2012] eKLR.
162 Alex Malikha Wasubwa & 7 others v. Elias Nambkha Wamita & 4 others [2012] eKLR; See also
27
163 Republic v. Kahindi Nyafula & 3 others ex parte Kilifi South East Farmers Cooperative [2014]
eKLR at para. 10.
164 Gilbert Hezekiah Miya v. Advocates Disciplinary Committee [2015] eKLR, at para. 19.
28
Parliament has since enacted a law – known as the Fair Administrative Action
Act, 2015 – to give effect to Article 47 of the Constitution, and which creates a
third avenue for judicial review.170 This Act adopts a broad definition of
“administrative action,” which it says includes “the powers, functions and duties
exercised by authorities or quasi-judicial tribunals,” and “any act, omission, or
decision of any person, body or authority that affects the legal rights or interests
29
30
180 Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules 2013, rule 4.
181 Woolf et al, De Smith’s Judicial Review at 554.
182 Woolf et al, De Smith’s Judicial Review at 545.
183 Woolf et al, De Smith’s Judicial Review at at 546.
31
184 See, for example, Chirwa, “Liberating Malawi’s Administrative Justice Jurisprudence” at 108
(contending that “The substantive common law reflected in Order 53 is now of secondary
importance only: as an aid to interpreting the provisions of section 43 [of the Malawian
Constitution].”)
185 Judicature Act, Chapter 8, Laws of Kenya, section 3(1).
186 Fair Administrative Action Act, 2015, section 7(2).
187 Fair Administrative Action Act, 2015, section 7(2)(k).
188 Fair Administrative Action Act, 2015, section 7(2)(f).
189 Fair Administrative Action Act, 2015, section 7(2)(h).
190 Fair Administrative Action Act, 2015, section 7(2)(c).
191 Fair Administrative Action Act, 2015, section 7(2)(a)(iv).
192 Fair Administrative Action Act, 2015, section 7(2)(a)(v).
32
193 See Migai Akech, Administrative Law (Strathmore University Press, 2016).
194 See, for example, Martin Nyaga Wambora v County Assembly of Embu and 37 others [2015]
eKLR; Truested Society of Human Rights Alliance v Attorney General and 2 others [2012] eKLR.
195 Constitution of Kenya 2010, article 168(1)(d).
196 For example, the United Nations Special Rapporteur on the Independence of Judges and
Lawyers has observed that removal processes and other disciplinary proceedings should be
confined to “instances of professional misconduct that are gross and inexcusable and that also
bring the judiciary into disrepute”. Report of the Special Rapporteur on the Independence of Judges
and Lawyers, Gabriela Knaul, UN Doc A/HRC/26/32, 2014, para 87.
197 Akech, Administrative Law at 440-444.
33
198 See, for example, “What Jubilee’s Judicial Service Commission Appointments Really Mean,”
Sunday Nation, 22 March 2015, available at <http://www.nation.co.ke/news/politics/Judicial-
Service-Commission-Appointments-Judiciary/-/1064/2661742/-/6xwcbpz/-/index.html>
199 See, for example, Geoffrey Mosoku, “LSK Files Petition Seeking to Compel President Uhuru
Kenyatta to Swear in New High Court Judges,” Standard, 10th July 2014, available at <
http://www.standardmedia.co.ke/article/2000127681/lsk-files-petition-seeking-to-compel-
president-uhuru-kenyatta-to-swear-in-new-high-court-judges>
200 Mosoku, “LSK Files Petition Seeking to Compel President Uhuru Kenyatta to Swear in New
at < https://www.the-star.co.ke/news/2018/04/21/parliament-is-wrong-on-warsame-
vetting_c1747202>
202 Constitution of Kenya Review Commission, The Final Report of the Constitution of Kenya
34
VI. Conclusion
35
36