Discuss the Judicial review and remedies

      

Discuss the Judicial review and remedies.

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Sharon
Procedure
Judicial review is the power of the court, in appropriate proceedings before it, to declare a governmental measure either contrary to or in accordance with, the constitution or other governing law, with the effect of rendering the measure invalid and void or vindicating its validity. Accordingly, judicial review functions to either check the government or legitimize its actions.
Before the enactment of the Constitution of Kenya, judicial review of administrative actions was based entirely on English common law. In this regime, while the Law Reform Act, Cap. 26 Laws of Kenya provided a basis for the judicial review power, the Civil Procedure Act, Cap. 21 Laws of Kenya regulated its exercise.
The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The remedies in the judicial review stream of the High Court of Kenya were three, namely; certiorari, prohibition and mandamus. The grounds upon which one could base an application for judicial review were of common law origin. The practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom and order 53 of the Civil Procedure Rules.
Prior to the promulgation of the Constitution of Kenya, 2010, there was a two tier legal basis for judicial review jurisdiction of the Kenyan courts. The two critical references in search for answers to this question were Sections 8 and 9 of the Law Reform Act which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions on the other hand.
Order 53 of the Civil Procedure Rules, Rule 1(1) an applicant seeking any of the prerogative orders was recognised to seek the leave of the court. This application is made ex parte to a judge in chambers, and a statement indicating, among other things, the relief sought, the ground on which it is sought, and affidavits verifying the facts relied on had to accompany it. For an applicant seeking the order of certiorari is required to make the application not later than six months after the date of the proceedings complained against under order 53 rule 2.
The promulgation of the Constitution of Kenya, 2010 and the legal developments thereafter have brought into focus other legal bases of jurisdiction for judicial review of administrative actions in Kenya.
There is a direct and indirect relationship between judicial review as a facet of the jurisdiction of courts, on the one hand, and constitutional law. Michael Fordham Judicial Review Handbook, 6th edition, Hart Publishing, 2012, p. 7 has opined that “judicial review is the court’s way of enforcing the rule of law: ensuring that public authorities functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not “above the law”’. Thus the constitutional stipulations for the rule of law provide an important foundation of an administrative law remedy of judicial review.
Constitution is the remedial appendance to article 22 of the Constitution. Article 22 vests courts with jurisdiction for enforcement of fundamental rights and freedoms set out in or recognized by the Bill of Rights. Among the reliefs available in proceedings for enforcement of fundamental rights and freedoms is an order of judicial review.
Article 47 of the constitution codifies every person’s right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action. Each of these prescriptions fit the recognized grounds for judicial review of administrative actions.
Article 165 of the Constitution establishes and vests jurisdiction in the High Court. Part of the jurisdiction vested in the High Court is: “supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function …” There is explicit judicial review content in this normative prescription of jurisdiction.
There is an inconclusive piece of jurisprudence on this question in the case of Masai Mara (SOPA) Limited Vs Narok County Government9,
“54. On the issue of the application of Order 53 of the Civil Procedure Rules to a constitutional petition where a party seeks judicial review reliefs, I must hasten to point out that since the promulgation of the Constitution in 2010, administrative law actions and remedies were also subsumed in the Constitution. This can be seen in the eyes of Article 47 which forms part of the Bill of Rights. It is safe to state that there is now substantive constitutional judicial review when one reads Article 47 as to the right to fair administrative action alongside Article 23(3) which confers jurisdiction, on the court hearing an application for redress of a denial or violation of a right or freedom in the Bill of rights, to grant by way of relief an order for judicial review.
55. Order 53 of the Civil Procedure Rules do not consequently apply to Constitutional Petitions where the court is expected to exercise a special jurisdiction which emanates from the Constitution and not a statute.
56. I consequently decline to accede to the Respondent’s contention that the Petitioner ought to be denied the reliefs sought on the basis that the Petition was filed more than six months after the action complained of took place.”
It is curious that although the Law Reform Act at Sections 8 and 9 was undisputedly the substantive basis for Judicial Review of Administrative Actions in Kenya as at the time of enactment of the Fair Administrative Actions Act, 2015, the said statute was not mentioned by name at all in the transitional and consequential provisions of the latter law. However, there is provision in the Transition provisions of Section 14 of the Fair Administrative Actions Act that:
“(1)In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done. (2) Despite subsection (1)(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed”
It is arguable that by subject all pending proceedings to the new statute, the law had impliedly repealed the pending action save only to unforeseen circumstances where “it is impracticable in any proceedings to apply the provisions” of the latter Act. Even in this limited set of circumstances, what was saved was “the practice and procedure obtaining before the enactment” of the latter Act, and not the substantive law. It may, therefore, be argued that Section 8 and 9 of the Law Reform Act continue to subsist in our statute books for the limited purposes of awaiting a formal repeal.
Order 53 of the Civil Procedure Rules
As indicated above, in the legal regime predating the coming into operation of the Constitution of Kenya, 2010 and its consequential legislation, the procedural regime governing Judicial Review of Administrative Actions was Order 53 of the Law Reform Act. This regime of law is still in force because, as a piece of procedural law, no rules expressly or impliedly repealing it have been promulgated. There, however, would appear to be a clear statutory intention to repeal and replace these rules. Order 53 of the Civil Procedure Rules was made by the Rules Committee established under Section 81 of the Civil Procedure Act. The clear intention of the Fair Administrative Action Act, 2015 is to have a regime of rules made by the Chief Justice governing judicial review of administrative actions. It provides at section 10(2):
“The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.”
This statutory pointer indicates a clear statutory intention to have a regime of procedure governing judicial review of administrative action that is distinct and independent of the existing procedural provisions on constitutional litigation of fundamental rights and freedoms and which provides for fair administrative action rights and judicial review remedies in constitutional litigation.
JURISDICTION
The Fair Administrative Actions Act at Section 7. (1) provides that: Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to(a) a court in accordance with section 8; or (b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.
Section 9 (1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
Grounds for Judicial Review
Previously derived from common law – ultra vires, illegality, irrationality, unreasonableness
Post 2010 – Based on constitutional provisions, common law and Statute. Section 7(2) A court or tribunal under subsection (1) may review an administrative action or decision, if(a) the person who made the decision
(i) was not authorized to do so by the empowering provision;
(ii) acted in excess of jurisdiction or power conferred under any written law;
(iii) acted pursuant to delegated power in contravention of any law prohibiting such delegation;
(iv) was biased or may reasonably be suspected of bias; or
(v) denied the person to whom the administrative action or decision relates,
(a) reasonable opportunity to state the person's case;
(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
(c) the action or decision was procedurally unfair;
(d) the action or decision was materially influenced by an error of law;
(e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;
(f) the administrator failed to take into account relevant considerations;
(g) the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;
(h) the administrative action or decision was made in bad faith;
(i) the administrative action or decision is not rationally connected to the purpose for which it was taken; (ii) the purpose of the empowering provision; (iii) the information before the administrator; or (iv) the reasons given for it by the administrator; (j) there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law; (k) the administrative action or decision is unreasonable; (l) the administrative action or decision is not proportionate to the interests or rights affected; (m) the administrative action or decision violates the legitimate expectations of the person to whom it relates; (n) the administrative action or decision is unfair; or (o) the administrative action or decision is taken or made in abuse of power.
Statutory Time-Frame for determination of Judicial Review Applications
An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application
Exhaustion of all alternative remedies
Section 9 (2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal
Ouster Clauses
In some circumstances there are attempts to exclude the jurisdiction of courts through what are termed ouster clauses. These are legislative provisions, which can be found either in constitutions or ordinary legislation, and which purport to deprive the courts of their jurisdiction to review governmental action. Courts in common law jurisdiction have typically declined to defer to such provisions, reasoning that doing so would deprive the courts of their responsibility to ensure that the government acts only in accordance with the rule of law. The courts therefore consider access to the courts to be a fundamental right in a constitutional democracy.
The leading case in the commonwealth is the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission [1968] App. L.R. 12/17 where in defying an ouster clause the House of Lords reasoned that when parliament determined that the decisions of the FCC could not be questioned in a court of law, it did not intend the FCC could make legally erroneous determinations, because that would suggest that parliament tacitly authorised the FCC to violate the law. See also Judges and Magistrates Vetting Board and 2 Others v Centre for Human Rights and Democracy and 11 Others, [2014] eKLR
Rules of Practice and Procedure – are we on course to doing away with order 53 of the Civil Procedure Rules?
Section 10 of the Fair Administrative Actions Act on Rules provides: (1) An application for judicial review shall be heard and determined without undue regard to procedural technicalities.
(2) The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.

Traditional judicial review was strictly focused on form. The focus on form was informed by the traditional approach to judicial review as a prerogative writ. Judicial review remedies were designed to control public power and were granted at the suit of the crown and thus the insistence on the name of the crown in the proceedings. The orders were also discretionary and depended on formal proceedings. As a result, procedure was treated strictly with courts paying great attention to issues such as the entitling of proceedings. In the oft cited Jotham Mulati Welamondi v The Electoral Commission of Kenya, [2002] 1 KLR 486 it was held that the since orders of Certiorari, Mandamus or Prohibition were issued in the name of the Republic, applications were made in the name of the Republic.
Part of the formalities under Order 53 of both the Kenyan and English Civil Procedure rules was the requirement for leave. No leave however could be granted after the lapse of six months. Article 22 requires informality of pleadings. Article 159 eschews procedural technicalities. Moreover, there is generally no limitation of time on claims for violation of the Constitution. It is therefore envisaged that applications for the judicial review order of certiorari can be brought well beyond the traditional six months.

Remedies
English law approached remedies as ends upon themselves divorced from the surrounding policy considerations. Indeed, the traditional focus of judicial review was to keep bodies within the ambit of parliamentary sovereignty as a result of which judicial review remedies were designed to meet this limited purpose. However the deficiency of this approach in facilitating review of administrative action led to changes in the law. Therefore in addition to harbeas corpus, certiorari, prohibition and mandamus were the main prerogative writs available in judicial review applications under the common law although legal reforms subsequently introduced declarations and injunctions.
This proposition by this line of decisions is a legal fiction informed by a rigid adherence to a position from which even the English legal system has since shifted. The correct position is that the Constitution itself empowers the court to accord appropriate reliefs in application to enforce the Bill of Rights. Equally, the Fair Administrative Actions Act has expanded the scope of remedies to some eleven plus reliefs. Where loss has occurred or where necessary to remedy violation of the right to fair administrative action the court might as well award damages. Article 23 of the Constitution as well as 11(1)(j) of the Fair Administrative Actions Act grant victims of unfair administrative action the right to compensation in damages for breach of the right to fair administrative action.
Similarly, under the common law, judicial review orders were discretionary and courts could withhold relief where it deemed fit.
It is therefore doubtful if Kenyan courts can continue to treat the grant of judicial review orders as a matter of discretion, since the right to administrative action is now an enforceable constitutional right. Accordingly, where the facts as pleaded point to a violation of the right to fair administrative action it would be remiss for the court to pretend that it has discretion over the matter and opt to grant or not grant judicial review orders. It is in this context that the weakness of the Act in requiring exhaustion of local remedies arises. The requirement would make sense if judicial review were still a discretionary remedy as opposed to a constitutional right.
Section 11 of the Fair Administrative Actions Act: (1) In proceedings for judicial review under section 11 (1), the court may grant any order that is just and equitable, including an order
(a) declaring the rights of the parties in respect of any matter to which the administrative action relates;
(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;
(c) directing the administrator to give reasons for the administrative action or decision taken by the administrator;
(d) prohibiting the administrator from acting in particular manner;
(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;
(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;
(g) prohibiting the administrator from acting in a particular manner;
(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;
(i) granting a temporary interdict or other temporary relief; or
(j) for the award of costs or other pecuniary compensation in appropriate cases.
(2) In proceedings for judicial review relating to failure to take an administrative action, the court may grant any order that is just and equitable, including an order
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of the decision;
(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or
(d) as to costs and other monetary compensation
c) Remedies
Should a court find that a right has been infringed and that the infringement does not satisfy the test for a valid limitation of a right, the question of the appropriate remedy for the infringement arises.
In article 23(3) the Constitution provides for a regime of remedies that courts can grant. It provides:
“23(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including-
a) a declaration of rights;
b) an injunction;
c) a conservatory order;
d) A declaration of invalidity of any law that, denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
e)an order of compensation; and
f) an order of judicial review.”
‘Appropriate relief’
Article 23(3) in referring to appropriate relief, sanctions a flexible approach to remedies. It is left to the courts to decide what would be appropriate relief in any particular case. Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the court may use any particular relief itemised in article 23(3) or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights. As was recognised by the High Court in Nancy Makokha Baraza vs. Judicial Service Commission & 9 Others [2012] eKLR: “The defunct Constitution, as we have already observed was very limited in terms of scope of the remedies available. The New Constitution gives the court wide and unrestricted powers which are inclusive rather than exclusive and therefore allows the court to make appropriate orders and grant remedies as the situation demands and as the need arises… We are, therefore, of the view that Article 23(3) of the Constitution is wide enough and enables as to make appropriate reliefs where there has been an infringement or a threat of infringement of the Bill of Rights.”
See also Fose v Minister of safety and Security 1997 (3) SA 786 (CC); Bidco Oil Refineries Ltd v Attorney General and 3 Others Nairobi Petition No. 177 of 2012 [2012]eKLR
Judicial review orders
The remedies of mandamus, prohibition, certiorari that were previously only granted in administrative action domain are now constitutional remedies and can be granted for violation of rights. See Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR CONSTITUTIONAL PETITION NUMBER 160 OF 2013
Certiorari functions to quash a past decision or action, and is only issued where the public body in question has rendered a decision or taken action on the matter in issue.
Prohibition functions to prevent a public body from making a contemplated decision, for example, where it lacks or is exceeding its jurisdiction. Thus while certiorari looks to the past, prohibition looks to the future.
Mandamus is a command of the court to the public body, requiring the latter to perform a specific duty imposed by law.
Declaration of right
A declaration of rights differs from a declaration of invalidity. The latter flows from a finding that there is inconsistency between law or conduct and the Constitution, whereas a declaration of rights may be given even if no law or conduct is found to be inconsistent with the Bill of Rights. Further, a declaration of invalidity is binding on all, while the declaration of rights is aimed at resolving a dispute between particular parties. See Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR CONSTITUTIONAL PETITION NUMBER 160 OF 2013
Injunctions
Injunctions fit the mould of constitutional remedies as they are always directed at future events. They can be in the form of interim injunctions, final injunctions of structural interdicts. The purpose of interim injunctions is preserve the status quo pending the adjudication of a dispute. See MICRO AND SMALL ENTERPRISES ASSOCIATION OF KENYA, MOMBASA BRANCH v. MOMBASA COUNTY GOVERNMENT & Others CONSTITUTION PETITION NO. 3 OF 2014
Final injunctions are issued at the end of the dispute.
Structural interdicts/injunctions direct the violator to rectify the breach of fundamental rights under court supervision. The structural interdict usually consists of five elements: first, the court declares the respects in which the government conduct falls short of its constitutional obligations; second, the court orders the government to comply with the obligations; third, the court orders the government to produce a report within a specified period of time setting out what steps it has taken, what future steps will be taken; four, the applicant is afforded an opportunity to respond to the report; finally, the matter is enrolled for a hearing and, if satisfactory, the report is made an order of the court. A failure to comply with obligations set out in the court order will then amount to contempt of court. Structural interdicts are popular in cases dealing with socio-economic rights and rights placing similar forms of positive obligations on the state.
Damages/compensatory reliefs
Damages are often appropriate in instances where there a declaration of invalidity or an injunction/interdict makes little sense and an award of damages will vindicate the infringement and deter future infringements. The possibility of a substantial award of damages may encourage victims to come forward and litigate, which may in itself serve to vindicate the Constitution and to deter further infringements. See PAUL PKIACH ANUPA & ANOTHER V ATTORNEY GENERAL & ANOTHER[2012]eKLR Petition 93 of 2011; JESSE WAWERU WAHOME & 42 OTHERS V KENYA ENGINEERS REGISTRATION BOARD & 3 OTHERS[2012]eKLR
On whether to award exemplary damages for the violation of his rights by state agents, there is a divergence of opinion in our courts on whether or not exemplary damages should be awarded in addition to general damages for unconstitutional action. While Justice Musinga has in the case of Cornelius Akelo Onyango & Others - v- A. G. MC. Petition No. 223 of 2009 (Unreported) awarded exemplary damages based on the court\'s decision in the case of Obonyo v Kisumu Municipal Council [1971] EA 91, Justices Mumbi, Majanja and Lenaola have rejected this approach. Majanja J in the case of Benedict Munene Kariuki and 14 Others -v- The Attorney General High Court Petition No. 722 of 2009 argued that- “In my view, these cases under section 84 of the Constitution are cases concerning the Constitution. It is unnecessary to consider the element of "unconstitutional action" when the relief is awarded for unconstitutional conduct. It is also clear that the principle in Obongo v Kisumu Municipal Council (Supra) was a case in tort so that the issue of "unconstitutional action" was an additional factor and the court would consider in awarding exemplary damages.” For similar approach see KOIGI WAMWERE V ATTORNEY GENERAL[2012]eKLR Petition 737 of 2009
REFLECTIONS: Should exemplary damages be awarded against the state to deter violation of rights?
Conservatory orders
This remedy functions to preserve a state affairs pending final settlement of a dispute. In the case of Muslims For Human Rights (MUHURI) & 2 Others vs Attorney General & 2 Others High Court Petition No. 7 of 2011, Ibrahim, J (as he then was) in considering the circumstances under which a court should grant conservatory orders, observed as follows: ‘What is clear to me from the authorities is that strictly a Conservatory Order is not an injunction as known in civil matters or generally in other legal proceedings but is an order that tends to and is intended to preserve the subject-matter or set of circumstances that exist on the ground in such a way that the constitutional proceedings and cause of action is not rendered nugatory. Through a Conservatory Order the court is able to give such directions as it may consider appropriate for the purpose of securing of..the provisions of the Constitution. A Conservatory Order would enable the court to maintain the status quo or existing situation or set of facts and circumstances so that it would be still possible that the rights and freedoms of the claimant would still be capable of protection and enforcement upon determination of the Petition and the trial was not a futile academic discourse or exercise.’
The principles which the court ought to take into account in the exercise of its discretion in deciding whether or not to grant a conservatory orders were well captured by Musinga J (as he then was), in Center For Rights Education & Awareness (CREAW) & 7 Others v Attorney General Petition No. 16 of 2011 where while considering an application for conservatory orders, he stated as follows: “At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.’

jerop5614 answered the question on January 9, 2019 at 08:52


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