Judicial Review of Administrative Action: A Critique of the Judgment of the High Court of Kenya [Guest Post]

[This is a guest post by Joshua Malidzo Nyawa.]

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Introduction

Under traditional common law, judicial review of administrative decisions is a highly constrained enterprise. It is limited to testing only the process through which a decision has been arrived at, and not its substance. Limited judicial review is a part of the broader, deferential tradition of the common law, in the context of parliamentary supremacy.

The promulgation of the Constitution of Kenya on  27 August 2010  was a legal watershed, and was – in the opinion of this writer – delivered a coup de grace to the common law understanding of judicial review. However, yesterday’s decision of Justice Chigiti shows that there is persistence reluctance among the Kenyan courts to appreciate the sweeping effect of the new broom in town, the 2010 Constitution, and to acknowledge that the legal system’s marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

By paying unquestionable allegiance to the dead hands of the past without considering the demands of the Constitution, the learned Judge makes the Constitution subservient to the Common law, instead of reading the Constitution autonomously, and bringing administrative law in line with its principles.

The decision and common law shackles

The shackles of the common law exhibit themselves in various ways. Firstly, as noted above, it is the understanding of common law that judicial review is restricted to the review of process alone and not merits. Secondly, the remedies offered in Judicial review are limited to certiorari, mandamus and prohibition. Thirdly, since Judicial review orders are prerogative, one has to apply for leave before filing the motion seeking the judicial review orders.

In the present decision, the applicant challenged an administrative decision of the Public Procurement Administrative Review Board. The genesis of the dispute was a tender award by one of the respondents, a government parastatal. The Judge started by looking at the nature of judicial review powers. He held that in a judicial review proceeding, the court is concerned with the lawfulness of a process by which the decision was arrived at (para 74) and that

It is my finding that this court cannot conduct a merit or a substantive merit analysis of the foregoing. To do so would go against the principles of Judicial review. It is my finding that the proceedings of the Review Board were regular, and the 1st  Respondent had jurisdiction to adjudicate upon the matters raised in the Request for Review; it was as much entitled to decide those matters wrongly as it was to decide them rightly in arriving at the impugned decision (para 86).

It is this finding that this short blog piece explores.

An all-pervasive Constitution and Judicial review

An all-pervasive Constitution requires its normative principles to govern all areas of law. The impact of an all-pervasive Constitution must penetrate all areas of the law, including common law – a phenomenon that is known as the “radiating effect” (its origins are in German constitutionalism, but it has since come to be accepted in multiple jurisdictions).

Undoubtedly, the 2010 Constitution can be described as an all-pervasive Constitution. The Constitution declares its supremacy and also requires that all laws be developed to ensure that they are in line with the Constitution (it is worthwhile to note that “law” would include the common law). These explicit constitutional injunctions have an important consequence. The all-pervasive Constitution rejects a parallel system of law outside the orbit of the Constitution. This is to mean that there can only be one system of law, and as Justice Chaskalson once held:

There is only one system of law. It is shaped by the Constitution, which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

In sum, the common law understanding of judicial review must be interpreted to be consistent with the reformist and transformative agenda of the Constitution. It cannot be insulated from the effects of the Constitution’s principles and values.

How, then, does the 2010 Constitution bring the shift? Article 47 of the Constitution, which constitutionalises the right to a fair administrative action, and the Fair Administrative Action Act of 2015 have signalled constitutional bells for expanding the scope of judicial review. Today, an administrative action and the remedy of judicial review, as Justice Majanja once held, is not left to the realm of common law, but it must be measured against the standards established by the Constitution. Most importantly, article 47 and the Fair Administration establishes new standards of review (such as proportionality, efficiency, procedural fairness and the duty to give reasons) and remedies that are unknown in common law, beyond the three traditional ones.

Another invention is that the constitutionalisation of a right to a fair administrative action elevates judicial review as a remedy for the protection and promotion of human rights and fundamental freedoms. Therefore, in Kenya, we now have a rights-centered approach to administrative law. Additionally, the right to a fair and administrative action must also be interpreted with the values and principles set out in Article 10 (transparency, accountability, good governance) in mind.

This constitutional architecture has led to a shift of judicial review to include aspects of merits review of administrative action. The current architecture goes 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.

Put differently, the Constitution and the Fair Administrative Action Act allow 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. Courts are called upon to engage in deeper scrutiny, hard look, merit-based standard of review mode and not the hands-off approach adopted by Justice Chigiti. The constitutional architecture demands more from a judge; a judge is not required to not pore over the process but also ensure that, in substance, there is justice for the petitioner. The traditional law common law principles are no longer the decisive factor.

Controlling precedents: Supreme Court, Court of Appeal and the High Court.

Apart from failing to engage with the demands of the Constitution, another worrying trend is that the Judge ignores controlling precedents. In his consideration of the dispute, Justice Chigiti does not pay homage to the decisions of courts above him and also courts with similar status. He replicates the decisions that were decided prior to the promulgation of the Constitution in 2010. If the Judge had checked the jurisprudence emanating from the other courts, he would have quickly realized that he was the only visitor in Jerusalem.

The Court of Appeal has, in several decisions, held that the 2010 Constitution and the Fair Administrative Action Act have expanded the limits of judicial review and that the legal framework has today shifted judicial review from process-based to merit-based. For instance, in Judicial Service Commission & another v Lucy Muthoni Njora [2021] eKLR, while rejecting the argument of the Judicial Service Commission, the Court of Appeal (Leading decision by Justice Kiage) held that the traditional process only approach to judicial review must involve a measure of merit analysis. The Court further held that:

I think that it would be unrealistic for a court to engage in a dry and formalistic approach, steeped in process alone, while eschewing a measure of merit examination. Such merit review is a sine qua non of meaningful engagement with the question of reasonableness and fairness as the antidote to the arbitrary, capricious or illegal conduct of authorities that invite judicial review in the first place.

The Court proceeded to hold that:

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.

Similar pronouncements have been made  by the Court of Appeal in Super Nova, with the court holding that when the Constitution expanded the grounds of judicial review above the conservative grounds to include the principles of proportionality, this resulted in ‘greater intensity of review of the merits as it invites a court to evaluate the merits of the decisions by assessing the balance to make.’ The Court of Appeal was more explicit in Suchan Investments that ‘this important conceptual development in modern judicial review theory and practice has been interpreted to mean a shift from exclusively reviewing the process by which a decision is made, to reviewing, in appropriate cases, the merits of the decision in question.’ The High Court has also held that Judicial review after the promulgation of the 2010 Constitution includes a merits review in the KHRC and DKUT decisions.

The Supreme Court has also held that Judicial review in Kenya now includes some form of merits review. In Dande, the Court held that:

It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case.

In Saisi, it was also stated that:

74. It is our considered opinion that the framers of the Constitution, when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans… In order for the court to get through this extensive examination of section 7 of the FAAA, there must be some measure of merit analysis.

Shackled to the Common Law

The new dawn in administrative law ushered by the Constitution might not be fully realised if justices remain shackled to the common law are not liberated. Justice Chigiti’s unquestioning allegiance to the received common law from the United Kingdom has the effect of preventing the unlocking of the revolutionary potential of Article 47 of the Constitution.

Articles 20(3) and 259 obligate judges to develop the law, including common law, to reflect the purpose, object and spirit of the Bill of Rights. Where a common law principle falls short of the spirit of the Constitution, judges should therefore develop it to make it compliant with the Constitution, rather than levelling down the Constitution to the level of common law.

Conclusion

Prof Gathii cautioned against developing a two-tracked system of judicial review – with cases influenced by the common law, on the one hand, and cases decided under the 2010 Constitution’s principles of judicial review, on the other. To him, this has the effect of undermining the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution. Justice Chigiti fails to adhere to this timeless caution. It is respectfully submitted, therefore, that the decision ought to be reconsidered and reversed on appeal.