How to File for Judicial Review in Kenya: A Citizen's Guide to Certiorari, Mandamus and Prohibition Orders Under the Fair Administrative Action Act, 2015

Judicial review is the legal mechanism by which a court examines whether a public authority — a government department, a parastatal, a county government, a regulator, or any other body exercising public power — has made a lawful, fair, and reasonable decision. Where a citizen, business, or organisation believes that an administrative decision has been made illegally, unreasonably, in bad faith, in breach of procedural fairness, or in disregard of legitimate expectations, judicial review is the route to having the court examine the decision and grant appropriate remedies. The Kenyan judicial review framework was substantially modernised by the Fair Administrative Action Act, 2015 (Act No. 4 of 2015), which gave statutory expression to Article 47 of the Constitution of Kenya, 2010 — the right to fair administrative action. The Act consolidated and clarified the grounds for judicial review, expanded the available remedies, set out the procedural framework, and introduced a 90-day target for determination of applications. The Fair Administrative Action (Judicial Review Procedure) Rules, 2024 further streamlined the procedure. This guide walks through the constitutional and statutory framework, the grounds on which a decision can be challenged, the available remedies (certiorari, mandamus, prohibition, declaration, injunction, damages), the step-by-step procedure for filing an application, the role of the Office of the Ombudsman, and the practical considerations for citizens contemplating judicial review.

The Constitutional and Legal Framework

Article 47 of the Constitution provides that "every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair." Article 47(2) further provides that "if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action." The Fair Administrative Action Act, 2015 was enacted to give statutory effect to Article 47, providing the detailed framework for fair administrative action and the procedure for judicial review where that fair action standard has been breached. The Act applies to administrative actions taken by all public bodies (national government departments, parastatals, county governments, commissions, regulators, and other public authorities) and increasingly to private bodies exercising public power.

What Judicial Review Is and Is Not

Judicial review is a review of the lawfulness of an administrative decision, not a re-examination of its merits. The court does not substitute its own judgment for the administrator's on the substance of the decision (whether a permit should be granted, what penalty should be imposed, who should be appointed). Instead, the court examines whether the administrator acted within their lawful powers, took the relevant factors into account, ignored irrelevant ones, followed fair procedure, and reached a decision that a reasonable administrator could properly reach. The remedy on a successful judicial review is typically to quash the original decision and remit the matter to the administrator for re-decision in accordance with the law, not to make the substantive decision itself.

This distinction matters in practice. A citizen who believes a tender award was made to the wrong bidder cannot simply ask the court to award the tender to themselves; they ask the court to quash the unfair award and order a fresh procurement process. A business penalised by a regulator cannot ask the court to overrule the penalty on its merits; they ask the court to quash the penalty for procedural unfairness or unlawfulness and have the matter reconsidered.

The Grounds for Judicial Review

Section 7 of the Fair Administrative Action Act sets out the principal grounds on which an administrative decision can be reviewed. The grounds include: illegality — the administrator acted outside their lawful powers (ultra vires), misapplied the law, or breached the Constitution; irrationality (Wednesbury unreasonableness) — the decision is so unreasonable that no reasonable administrator could properly have reached it; procedural impropriety — the administrator failed to follow fair procedure (failure to give notice, failure to give a hearing, biased decision-maker, failure to give reasons); bad faith — the administrator acted with improper motive or for an improper purpose; legitimate expectation — the administrator departed from a previously stated practice or representation without sufficient justification; failure to consider relevant matters or consideration of irrelevant matters; disproportionate action — the decision was disproportionate to the issue being addressed; and breach of the Constitution or fundamental rights and freedoms.

The Available Remedies

Section 11 of the Fair Administrative Action Act consolidates the remedies available on judicial review. The traditional prerogative writs are codified: certiorari (the order quashing an unlawful decision); mandamus (the order compelling an administrator to perform a public duty they have failed to perform); and prohibition (the order restraining an administrator from continuing or commencing an unlawful action). The Act adds: declarations (the court's authoritative statement on the legal position); injunctions (orders restraining unlawful conduct); orders directing reasons (compelling an administrator to give reasons for a decision); orders for re-consideration (directing the administrator to reconsider the decision in accordance with the court's directions); and in some cases damages (compensation for losses caused by the unlawful action).

The court's remedial flexibility is broad. The Act emphasises that the court should grant the remedy that does justice to the parties, not be constrained by the historical limits of the prerogative writs.

Standing: Who Can Apply

Standing under the Fair Administrative Action Act is broad. Any person "aggrieved by an administrative action" can apply for judicial review. This includes the person directly affected, a person acting on behalf of another person, a person or organisation acting in the public interest, a group or class of persons affected by the decision, and a public authority itself in some circumstances. The expansion of standing beyond the strict "direct affectedness" test reflects the broader rights-based orientation of the Constitution of Kenya, 2010.

The Application Process

The applicant files a Notice of Motion (or, where appropriate, a Petition) in the High Court — the Constitutional and Human Rights Division for matters with constitutional dimensions, the Judicial Review Division or the Civil Division depending on the registry's allocation. The application is supported by an affidavit setting out the facts giving rise to the dispute, the decision being challenged, the grounds for review, and the relief sought. Supporting documents — the impugned decision letter, correspondence with the administrator, evidence of compliance with internal appeal processes — are exhibited to the affidavit. The respondent (the administrator whose decision is challenged) is served and files a Replying Affidavit setting out the response.

The court conducts a hearing — typically a single day for straightforward matters and over multiple days for complex matters. The Fair Administrative Action Act requires that proceedings be heard and determined "without undue regard to procedural technicalities" and sets a target of 90 days for determination. The court delivers judgment within a reasonable period after the hearing, granting or refusing the remedies sought.

The Exhaustion of Alternative Remedies

Where the Act or other legislation provides an internal appeal mechanism (an Appeals Board, a Cabinet Secretary's appeal, a tribunal), the applicant is generally expected to exhaust those alternative remedies before seeking judicial review. The court has discretion to entertain a judicial review application before alternative remedies are exhausted in cases of urgency, futility (where the alternative remedy is not adequate), or where the issue is of constitutional importance.

The 90-Day Determination Target

Section 9 of the Fair Administrative Action Act sets a target of 90 days for the determination of judicial review applications from the date of filing. The target reflects the constitutional commitment to expeditious administrative justice. In practice, judicial review matters in the Kenyan High Court are heard more quickly than ordinary civil matters but the 90-day target is not always achieved due to caseload, complexity, and procedural delays. The 2024 Fair Administrative Action (Judicial Review Procedure) Rules were issued in part to support faster processing.

The Role of the Office of the Ombudsman

The Commission on Administrative Justice (commonly known as the Office of the Ombudsman) is a constitutional body with the mandate to receive and investigate complaints of maladministration in the public service. Citizens with grievances against administrative decisions can lodge a complaint with the Ombudsman as an alternative or complement to judicial review. The Ombudsman's office is non-judicial — it investigates and recommends — but its findings carry persuasive weight and many administrative grievances are resolved through Ombudsman intervention without proceeding to court. The Ombudsman complaint is free and accessible.

Cost Considerations

Unlike a constitutional petition (covered in our companion guide), a judicial review application attracts court filing fees. The fees are modest by the standards of complex civil litigation but are not zero. The applicant's principal costs are typically advocate's fees — judicial review applications are technical and benefit from advocate representation, although self-representation is permitted in straightforward cases. Costs awarded to a successful applicant can include both court fees and legal costs from the respondent.

Common Judicial Review Scenarios

Frequent judicial review scenarios in Kenya include: tender award disputes (challenges by unsuccessful bidders to the lawfulness of the award process); employment matters in the public service (dismissals, demotions, denial of promotion); regulatory decisions (refusals of licences, suspensions, penalties); land and planning decisions (refusals of planning permission, change of user, sub-division approvals); taxation decisions (KRA assessments, refusals of refund claims); civil status decisions (citizenship refusals, passport denials, NSSF and pension determinations); and constitutional appointments (challenges to appointments alleged to be unlawful or biased).

Practical Tips for Citizens Contemplating Judicial Review

First, identify the specific decision being challenged with precision. Vague generalised grievances against "the system" are not judicial review material; a specific decision letter, a specific tender award, a specific licence refusal is. Second, examine whether internal remedies exist and exhaust them where appropriate. Many disputes are resolved internally without litigation. Third, identify the grounds on which the decision is challenged. Choose the strongest grounds (illegality is often the strongest where the administrator clearly exceeded their power; procedural impropriety is strong where the administrator did not give a hearing or did not give reasons). Fourth, gather contemporaneous documents — the original application, the rejection letter, the correspondence — and exhibit them to the affidavit. Fifth, engage an advocate for any substantial judicial review. The technical strength of the application materially affects the outcome.

The Bigger Picture

Judicial review is the constitutional accountability mechanism for the executive branch of government. It ensures that public power is exercised within the bounds of law, that administrative decisions affecting citizens are made through fair process, and that the constitutional commitment to fair administrative action under Article 47 has practical legal force. The Fair Administrative Action Act, 2015 modernised the framework and made judicial review more accessible. Citizens, businesses, and civil society organisations who understand the route and use it strategically when justified contribute to the broader rule of law in Kenya. The procedure is not for trivial complaints — it is a serious legal remedy with serious procedural requirements — but for genuine grievances against unlawful or unfair administrative action, it is among the most effective legal tools available.

The Kenya Law portal hosts the full text of the Fair Administrative Action Act, 2015 and the 2024 Judicial Review Procedure Rules. The Judiciary of Kenya publishes the High Court registry directory and the procedural forms. The Commission on Administrative Justice (Office of the Ombudsman) provides an alternative non-judicial complaint mechanism for maladministration grievances.