Judicial Review in Kenya Post the 2010 Constitution
Author : Bryson Ometo
- [email protected]
- Rachier & Amollo LLP, Mayfair Center 5th Floor
Judicial Review in Kenya Post the 2010 Constitution
Bryson Ometo
Article Overview
This insight explains how the 2010 Constitution transformed judicial review in Kenya from a narrow common-law remedy focused on “process” to a constitutionally grounded mechanism tied to Article 47 (fair administrative action) and enforceable through Article 23 remedies. It then critiques the Supreme Court’s inconsistent approach on the key question: should judicial review remain confined to procedure or also interrogate the merits of an administrative decision?
By analysing a series of Supreme Court decisions, the article argues that the Court’s shifting position has created uncertainty for lower courts and litigants, and warns against sliding into a “two-track” judicial review system where one track is common-law styled (Order 53) and the other constitutional styled, undermining coherence in administrative justice.
Key takeaways
- Old approach (common law): traditional judicial review focused on process, not merits, anchored on the “three I’s”: illegality, irrationality, and impropriety (procedural).
- Constitutional shift: post-2010, administrative law is increasingly grounded in the Constitution, with judicial review connected to Article 47 and enforceable via Article 23 remedies.
- Supreme Court recognition: the Court has acknowledged that the Constitution elevated judicial review beyond common-law technicalities, citing Communications Commission of Kenya v Royal Media Services (2014).
- Article 47 as transformative: in JSC v Mbalu Mutava & another, the Supreme Court emphasised that Article 47 constitutionalises fair administrative action and ties it to Article 10 values like rule of law, transparency, and accountability.
- Supreme Court “pendulum”: the author argues the Supreme Court has been inconsistent, creating uncertainty for courts bound by its decisions.
- Cases analysed: the article references Supreme Court decisions including SGS Kenya Ltd v ERC & 2 others, John Florence Maritime Services Ltd & another v CS Transport & 3 others, Praxidis Namoni Saisi & 7 others v DPP & 2 others, and Edwin Harold Dayan Dande & 3 others v IG NPS & 5 others.
- Two-track system concern: the article critiques the suggestion that Order 53 applications are strictly procedural while constitution-based judicial review invites merit review, warning this revives a two-track model that scholars have cautioned against.
- Practical dilemma flagged: pleadings often straddle both tracks (Order 53 plus constitutional violations), raising unresolved questions on how courts should treat merit analysis under Section 7 of the Fair Administrative Action Act.
- Conclusion: the author calls for decolonising judicial review and fully embracing the constitutional foundation to avoid fragmented doctrine and uncertainty in remedies and standards.