A Harbinger of Justice or a Pandora’s Box? The Kenyan Supreme Court Broadens the Scope of Judicial Review

by | Jul 24, 2023

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About Godfrey Mwango

Godfrey Mwango is a reader in law based in Mombasa-Kenya. He specialises in comparative constitutional law (with a focus on emerging jurisdictions), horizontal human rights, and judicial review and is currently supervised by Professor PLO Lumumba. Previously, Godfrey received training under the Honourable Peter Kaluma and George Miyare (Kenya's leading constitutional litigation experts). He is skilled in constitutional litigation and judicial review and can be contacted at mwangoadvocates@outlook.com.

The Kenyan Supreme Court has issued further directions clarifying the scope of judicial review law in its decision on 16th June 2023 in Edwin Harold Dayan Dande & 3 Others v The Inspector General, National Police Service & 5 Others, which revolved around the question of merits review. The liberal position of the Supreme Court is a departure from the Court of Appeal’s position, whose conservative approach affirmed the traditional standards of review by limiting a judicial review court’s intervention in merit review.

In the Edwin Dande case, the Appellants had filed three petitions before the Supreme Court seeking to set aside an earlier decisionof the Court of Appeal delivered at Nairobi (Makhandia, Ngugi & Nyamweya JJA), which had effectively affirmed the traditional understanding of standards of review limiting a judicial review court’s intervention in merit review. The Supreme Court framed five different issues which were in contention, including (1) Whether the appeal or any part of it, is moot, leaving no live controversy requiring adjudication; and (2) Whether the scope of judicial review has evolved to include merit review of an administrative decision or other action.

In its ruling, the unanimous decision of the Supreme Court impugned the finding of the lower Court. It held that “…a court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in Order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings” [87]. Also instructive is that the decision of the Supreme Court held that two aspects will guide whether to examine the merits of a case or not: (1) the procedure through which a party has approached the Court; and (2) the nature of what is pleaded in the case. In the first instance, the Court is obliged to undertake a merit review where the case is hinged on the Constitutional provisions. Otherwise, for suits brought under Order 53 of the Civil Procedure Rules, which do not expressly claim Constitutional violation or fundamental rights’ infringement, the Court must instead focus on the manner of the decision/the process of reaching a decision. Therefore, in a broader sense, the decision of the Supreme Court implied that where the aggrieved believes the rights under Chapter Four are infringed and tailors the constitutional questions as such, the Court is obliged to undertake a merit review.

Finally, and crucially, the recent decision of the Supreme Court supports a positive trajectory for the Constitution of Kenya 2010, since it expands the traditional understanding of judicial review (which was historically concerned with formalistic analysis of the decision-making process instead of the merits of the impugned decision). Nevertheless, although the Supreme Court has made considerable efforts to clarify the scope of judicial review and to protect fundamental rights under Chapter Four of the Constitution of Kenya 2010, the law is not yet fully settled, especially regarding the degree to which a JR court may examine a case’s merits. It will be fascinating to see how this jurisprudence develops further in protecting fundamental rights, especially bearing in mind that the Supreme Court had offered earlier piecemeal guidance in Praxedes Saisi & 7 Others v Director Of Public Prosecutions & 2 Others, and held that merit review must only consider an analysis of uncontroverted evidence.

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