a) Introduction
In October 2024, by Legal Notice 165 of 2024, Chief Justice Martha Koome gazetted the Fair Administrative Action Rules, 2024 (Koome Rules). The rules present a transformative shift in Kenya’s judicial review framework, emphasising access to justice and procedural simplicity. Abolishing the leave requirement, for example, the Rules simplify judicial review applications by decentralising them to the lowest competent courts.
In this article, Bond Advocates LLP examines the key changes in the Koome Rules and assesses their impact on judicial review in Kenya. Next, we compare the Rules to the previous Order 53 and the Mutunga Rules. Last, we identify problematic aspects of the rules and recommend areas for reform.
b) The new
First, for mandamus, Rule 5 introduces a mandatory notice of intention to sue, requiring applicants to notify the respondent at least seven days before filing the judicial review application. Rule 7(d) denies mandamus to applicants who do not serve the seven-day notice. This provision could ensure respondents are formally informed of grievances and potential legal proceedings against them. The rules could encourage pre-litigation dialogue and resolve disputes without court action by mandating such notice.
Under Rule 6, applications for certiorari must be filed within six weeks of the action or decision. However, the court can extend this period if the applicant demonstrates that they were prevented from filing within the stipulated time due to fraud, misrepresentation, or other valid reasons. This time limitation could promote the timely resolution of disputes while accommodating genuine delays.
Next, Rule 8 decentralises jurisdiction, thus allowing judicial review applications to be filed in the court of the lowest grade competent to hear and determine the application. On its motion or application by a party, a superior court may transfer an application for judicial review from itself to a subordinate court, from one subordinate court to another subordinate court, or from the subordinate court to itself. This change contrasts with the previous framework, where applications could only be initiated in the High Court, ELC, or ELRC. The rule broadens access to justice, particularly for litigants in remote areas.
Rule 11 directs applications for judicial review through an Originating Motion accompanied by a supporting affidavit to eliminate the need for leave. The Originating Motion shall substantially be in Form JR 2 and contain the following:
(a) the name and description of the applicant;
(b) the relief sought and the grounds on which it is sought;
(c) a statement that internal mechanisms for appeal or review and any remedy available under any other written law have been exhausted (or are not applicable);
(d) administrative action or decision complained of or the date it was taken;
(e) the person who took the administrative action or decision;
(f) reason for the administrative action or decision, if any; and
(g) how the administrative action or decision violates the Act (section 7 of the FAA).
Rule 19 mandates courts to hold case management conferences to address preliminary issues, confirm compliance with procedural requirements and resolve interlocutory matters before the substantive hearing. This approach streamlines judicial proceedings, minimises unnecessary delays, and ensures that cases are well-prepared for substantive determination.
The Rules also encourage using alternative dispute resolution (ADR) mechanisms. Rule 20 permits the referral of matters to ADR, subject to the court’s leave and compliance with statutory timelines. This provision reflects the growing recognition of ADR as an efficient and cost-effective way of resolving disputes, particularly in administrative law contexts.
Finally, the Rules significantly expand the range of remedies available to the courts. Under Rule 27, courts can grant equitable relief, monetary compensation, interim orders, and even direct administrators to reconsider their decisions. This broader scope of remedies enhances the court’s ability to deliver substantive justice tailored to each case’s circumstances.
c) Comparing the Koome Rules to Order 53 and the Mutunga Rules?
The rules depart from Order 53 of the Civil Procedure Rules and The Mutunga Rules, mainly through procedural simplification and emphasising substantive justice. One of the most significant changes is the abolition of the leave requirement. Under Order 53, leave is a procedural filter to weed out meritless claims, but the 2024 Rules eliminate this step. Applicants can file substantive judicial review applications directly by originating motion, as provided under Rule 11. This change removes a key procedural hurdle and shifts the focus to the substantive merits of a case.
The Rules also introduce stricter and uniform timelines for filing judicial review applications. Unlike Order 53, which prescribes a six-month window for certiorari applications but leaves timelines for other remedies undefined, the 2024 Rules mandate a six-week deadline for filing all applications under Rule 6.
A transformative feature of the 2024 Rules is the decentralisation of jurisdiction. Judicial review applications can now be filed in subordinate courts with original jurisdiction, as opposed to the exclusive jurisdiction of the High Court under Order 53. This change expands access to justice, particularly for litigants in rural or underserved regions, and is expected to reduce the burden on the High Court.
The 2024 Rules also emphasise alternative dispute resolution (ADR) mechanisms in appropriate cases. Rule 20 empowers courts to refer matters to ADR, subject to statutory timelines and the court’s leave. While ADR is absent in Order 53 and only indirectly referenced in the Mutunga Rules through Article 159 of the Constitution, its explicit incorporation into the 2024 Rules highlights a commitment to more collaborative and cost-effective dispute resolution.
Further, the Rules focus on substantive justice, allowing courts to overlook procedural technicalities that do not cause prejudice to the parties, as stated in Rule 27. This approach aligns with the principles of the Mutunga Rules, which prioritise constitutional values and fairness, but it is a departure from the procedural rigidity of Order 53.
Finally, the 2024 Rules reflect the expanded remedies for judicial review in section 11 of the FAA. Whereas Order 53 limits remedies to certiorari, mandamus, and prohibition, the new Rules grant courts the authority to provide damages, interim relief, and equitable remedies such as setting aside administrative actions or ordering their reconsideration (Rule 27). This broad scope allows courts to tailor treatments to the unique circumstances of each case, ensuring more effective and meaningful outcomes for litigants.
d) Leave no longer necessary
Leave is no longer necessary for judicial review consistent with Article 47 and the Fair Administrative Action Rules, 2024. Previously, under Order 53, applicants had to seek leave as a preliminary step to demonstrate that their case was not frivolous. The Koome Rules eliminate this procedural hurdle, making the process more straightforward and accessible.
The abolition of leave was imminent. A decade ago, a Bond partner predicted that while previously “judicial review was limited to enforcing the will of a sovereign Parliament, it has morphed into a constitutional principle. As a result, the approach to judicial review cannot continue as if there had been no change”. 1
e) The bad
The rules revive certain outdated technicalities that must be urgently reviewed. These aspects of the regulations are unconstitutional, contradict the Act or other legislation, and will be problematic in practice.
i. Notice of intent to sue
First, the notice of intention to sue could be problematic because it could set up a forbidden condition precedent to jurisdiction. The rule returns legal formalism and dogmatism, which are incompatible with the Constitution. In Kenya Bus Service Ltd v Minister for Transport & 2 Others [2012] KEHC 2402 (KLR), the High Court nullified similar pre-litigation notices under section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation Act.
When you add the exhaustion requirement and the new limit of judicial review to six weeks from the former six months, the problem increases. One cannot see any reason for changing from six months to six weeks. In practice, this rule will only end up flooding the Constitutional Division. No similar time limit applies to constitutional petitions under the Mutunga Rules. Yet the constitution has fused both processes with very slight variations in procedure. A party can seek any relief in either court. Parties caught up by the six-week time limit only need to file a petition.
ii. Compensation
Second, rule 11(4) is both problematic conceptually and practically. The rule requires any claim for damages in judicial review to be specifically pleaded and particularised in the originating motion. However, the rule (to plead specifically and prove strictly) applies to special damages in civil litigation. On the other hand, judicial review is an Article 23 and 47 tool to vindicate the Bill of Rights and uphold constitutionalism. This concern in rule 11(4) about when the judicial review court can award damages is a carryover from the old judicial review practice limited to certiorari, mandamus, and prohibition. 2
Indeed, section 11 of the FAA allows the court to give compensation for a violation of the right to fair administrative action. In Export Processing Zone Authority v National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR), there is a distinct difference between damages in tort and damages for constitutional violations:
In constitutional claims, where fundamental rights have been violated, the court takes a broader approach to assessing damages. It considers various factors, including the nature of the violation, the length of time the alleged violation has taken, the impact on the victim and whether there is direct harm, and the broader implications of the case, including the need to deter future violations, uphold the rule of law, and ensure that public authorities or private parties respect constitutional rights. These differences in the approach between tortious and constitutional claims reflect the varying nature of the harm and the different objectives of each type of claim. While tortious claims are primarily about compensating specific losses, constitutional claims often aim to address broader issues of justice and the protection of fundamental rights.
Therefore, rule 11(4) inadvertently limits the court’s constitutional and statutory jurisdiction to award general damages or compensation for constitutional violations. General damages cannot be specifically pleaded and particularised in the originating motion.
iii. Twenty-one-day appeal window
Rule 31 requires an appeal under section 9(5) of the Act to be filed within seven days after the judgment date. The notice of appeal must identify the judgment from which the appeal is based and shall, in separate serially numbered paragraphs—
(a) specify whether all or part of the judgment is being appealed and, if part of the judgment, which part;
(b) identify the source of the right of appeal and the basis for the jurisdiction of the court to determine the appeal;
(c) precisely set out the grounds of the appeal;
(d) concisely state the relief sought;
(e) provide the appellant’s address for service and state the names and addresses of all persons intended to be served with the notice of the appeal; and
(f) request that the appeal be set down for hearing in the appropriate registry.
The appellant must serve the notice of appeal on each respondent within three days of filing the appeal and file and serve the record of appeal within fourteen days after filing the notice of appeal.
This twenty-one-day window to appeal judicial review orders is ambitious and impractical. Consider that in those three weeks, under Rule 33, the appellant must obtain and file in their appeal record the trial court’s notes of the hearing or transcript of any shorthand notes taken at the trial, the judgment, and the decree. How many parties can obtain these documents within seventeen days is quite doubtful.
This narrow window will make judicial review unattractive, with parties flocking to the constitutional division.
iv. Impunity
Judicial review has been the most effective tool against abuse of power.
Rule 27 (3)(c) allows for the decline of merited claims where granting relief would cause substantial hardship, prejudice others, or undermine public interest or good administration.
This rule could aid impunity, thus defeating the purpose and destroying the rich tradition of judicial review as a response to impunity. Considering the ultra vires rule, and that unconstitutionality and illegality are both grounds for review, this rule has a worrying purpose and effect. Will the judicial review courts allow constitutional violations to pass because “granting relief would cause substantial hardship, prejudice others, or undermine public interest or good administration”?
The approach made sense in the pre-constitutional era when the judicial review was a discretionary remedy, and the court could consider the public interest in a declining judicial review even where a party had succeeded in the judicial review. Republic v Judicial Service Commission ex-parte Pareno [2004] KLR 203 at 219.
The rule lessens the court’s power in judicial review expressed in Republic v Director General of East African Railways Corporation, ex parte Kaggwa, (1977) KLR 194:
the court, as a custodian of the rights of those under its jurisdiction, must ensure that justice is done to those who come before it regardless of whether or not that interferes with the management of the executive arm of the government. That is why there is no other remedy open to the applicant, the court has no choice but to grant the order of mandamus (fiat justitia) so that justice can be done and be seen to be done.
More worrying, however, is rule 27(3)(4), which states that the court may not grant judicial review where the applicant did not suffer loss. We see this rule as bringing back the outdated notions of locus standi that reduced access to judicial review and has been outdated by the generous rules on standing under the Constitution. Essentially, rule 27(3) introduces unconstitutional fetters to the court’s jurisdiction contrary to Articles 23 and section 11 of the FAA.
f) Conclusion
In conclusion, the Fair Administrative Action Rules 2024 significantly evolved Kenya’s judicial review landscape. The Rules align judicial review practice with the constitutional right to fair administrative action by prioritising access to justice, efficiency, and fairness. Some aspects, like pre-litigation notice and the narrow appeal window, need urgent review.
For expert help on the Koome rules, judicial review, or constitutional litigation in Kenya contact Ochiel Dudley, Bond Advocates LLP partner through ochieljd@bondadvocates.com
1 Ochiel Dudley, ‘Transformation of Judicial Review in Kenya Under the 2010 Constitution’ (LLM thesis, University of Nairobi 2016) last accessed on 1 February 2025 from
https://erepository.uonbi.ac.ke/bitstream/handle/11295/98393/Ochiel_Transformation%20Of%20Judicial%20Review%20In%20Kenya%20Under%20The%202010%20Constitution.pdf
