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In the locus classicus case of Republic v Commissioner of Lands ex parte Hotel Kunste (1997) eKLR, the Kenyan Court of Appeal described judicial review as proceedings sui generis that are neither civil nor criminal in nature and pronounced that judicial review is concerned only with the decision-making process and not the merits of the decision itself, harking back with due homage to the time-hallowed words of Lord Hailsham of St. Marylebone in Chief Constable of the North Wales Police v Evans (1982) 1WLR 1155:
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court.”
The foregoing encapsulates what may be referred to as “the traditional approach to judicial review”. This article discusses the apparent paradigm shift in the approach to judicial review following the promulgation of the Constitution of Kenya, 2010 and the subsequent enactment of the Fair Administrative Action Act, 2013.
The Traditional Approach
Under the traditional approach to judicial review, an applicant was restricted to demonstrating that the administrative decision or act complained of was tainted with illegality, irrationality, or procedural impropriety.
In the case of Keroche Industries Limited v Kenya Revenue Authority & 5 Others (2007) eKLR, the Court expounded on the foregoing by setting out the description of illegality, irrationality, and impropriety. Illegality happens when the decision-making body commits acts that are ultra vires, in other words, outside the scope of the powers granted by law, resulting in an error of law. Irrationality manifests itself when there is evidence of gross unreasonableness in arriving at the decision, such that no reasonable authority exercising its right properly would have arrived at such a decision. Procedural impropriety comes in when there is a failure to act fairly by among others, failure to uphold the principles of natural justice.
Kenyan Courts have hitherto consistently upheld and applied the traditional approach, even after the promulgation of the Constitution of Kenya, 2010. For example, in the case of Republic v Inspector General of Police & another ex parte Patrick Macharia Nderitu (2015) eKLR, the Court was emphatic that judicial review was a common law remedy, applicable in Kenya by virtue of the Law Reform Act (Cap. 26) Laws of Kenya and was only concerned with the process followed to arrive at a decision.
A Move to the Merits
All was seemingly clear, then in came the Constitution of Kenya, 2010. Article 23 (3) thereof provides for the Orders of judicial review as one of the available remedies in relation to the enforcement of the bill of rights. It is noteworthy that the Constitution of Kenya, 2010 contains a comprehensive bill of rights which includes the right to fair administrative action as espoused under Article 47. Resultantly, the orders of judicial review have become available not only within the previous confines of the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010 but also in instances of breach of any of the fundamental rights and freedoms conferred under the Constitution.
To give effect to the right to fair administrative action under Article 47 of the Constitution, Parliament enacted the Fair Administrative Action Act, 2015 (FAAA). The FAAA has widened the scope of judicial review in Kenya by going beyond the traditional approach restricted to procedural considerations which was previously the focus of judicial review, to now include a consideration of the merits of administration action or decision forming the subject of the judicial review proceedings.
Though cautiously, there is an evolution towards the application of the “hard look doctrine” in judicial review which permits Courts to also consider the merits of a case as opposed to the traditional process-only inquiry. This paradigm shift is evinced by the jurisprudence emanating from Kenyan Courts though laced with some controversy or inconsistency with some Courts upholding the traditional process-only approach, with others embracing the merit based approached flowing from the Constitution of Kenya, 2010 and the FAAA.
Which Way to Go?
In the case Trusted Society of Human Rights Alliance v Attorney General & 2 others (2012) eKLR, the issue arose as to whether in reviewing the procedure of appointment of Mumo Matemu as the head of the Ethics and Anti-Corruption Commission, the High Court could, in addition to reviewing the procedure followed by the appointing authority, also review the merit of the decision.
The High Court held that it could properly review both the procedures of the appointment as well as the legality of the appointment itself – including determining whether the appointee met the constitutional threshold for appointment to the position. Simply put, the High Court was of the view that it had powers to delve into the merits of the decision forming the subject of the judicial review. However, on appeal, the Court of Appeal faulted the High Court for having misapplied the doctrine of rationality and reasonableness by reviewing the merits of the decision which was a great affront to the doctrine of separation of powers. The Court of Appeal was of the considered view that the High Court ought to have restricted itself to the process that was followed in arriving at the appointment.
Subsequently, in the case of Suchan Investment Ltd vs. Ministry of Natural Heritage & Culture & 3 Others (2016) eKLR, the Court of Appeal changed tact and held that Article 47 of the Constitution of Kenya 2010, as read with the FAAA, reveals the implicit shift of judicial review to include aspects of merit review of administrative action. The Court of Appeal attributed the change in landscape to the grounds for judicial review identified under section 7 (2) of the FAAA such as rationality of the decision, scope of authority, etc which invited aspects of merit review. However, the Court of Appeal hastened to clarify that there is no power for the reviewing Court to substitute the decision of the administrator with its own. Indeed, section 11 (1) (e) and (h) of the FAAA preserve the decision-making power on merits to the administrator or authority, by giving the Courts the power to remit the matter back to the decision-making body.
The Shift Confirmed
More recently, the Court of Appeal entrenched the paradigm shift from the traditional approach to merit review in the case of Judicial Service Commission & another v Lucy Muthoni Njora (2021) eKLR. In this case, the Deputy Registrar of the Supreme Court received an interdiction prohibiting her from performing her duties as Deputy Registrar pending her appearance before the relevant Committee of the Judicial Service Commission (JSC). Following the disciplinary proceedings, the Deputy Registrar was dismissed from employment by the JSC. Aggrieved by the decision, she moved to the Employment and Labour Relations Court alleging violation of her constitutional right to a fair administrative action. The Court found in the Deputy Registrar’s favour prompting an Appeal to the Court of Appeal. One of the grounds of appeal was that the Court erred by usurping the JSC’s disciplinary mandate and interfering with its human resource functions, and that the Court had thereby ventured into a merit-based review of the JSC’s decision to dismiss the Deputy Registrar.
In determining this issue, the Court of Appeal pointed out that even the traditional process-only approach inevitably contained an element of merit analysis. It would therefore be unrealistic for a Court to engage itself only with a formalistic approach while excluding the merits since it was only from merits that a Court could have a meaningful engagement with the question of reasonableness and fairness of the decision. The Court of Appeal, (as per Kiage JA) was emphatic that there has been a seismic shift towards a merit-based approach, and held as follows:
“We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality. Being of that mind, on the critical complaint that the learned Judge misconstrued the nature of the complaint, and even violated jurisdictional bounds by engaging in a merit-review, I find that the learned Judge did not err. I answer the first issue in the negative.”
The decision by the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Njora has confirmed the paradigm shift from the traditional process-only approach in judicial review to a merit-based review. Consequently, decisions of entities exercising administrative functions will now be subjected to greater scrutiny, including the merits or demerits thereof. Such bodies should thus be concerned that their decisions are up to scratch in terms of passing both procedural as well as substantive muster.
Changing times are indeed firmly upon us.