An analysis on how Fair Administrative Action Rules 2024 changed the procedure of Judicial Review described in Section 8, 7 & 10 of the Law Reform Act

Judicial review has long been a critical mechanism through which courts oversee the legality of administrative decisions in Kenya. Traditionally governed by sections 8,9 and 10 of the Law Reform Act and Order 53 of the Civil Procedure rules, 2010, judicial review was rooted in the common law principles and was largely concerned with the procedural propriety. However, the enactment of the Fair Administrative Action Act, 2015 and more recently, the promulgation of the Fair Administrative Actions Rule, 2024, signal a shift from the formalistic common law approach to rights-based constitutional framework. The FAA Rules, 2024 overhaul both substance and procedure, aligning judicial review practice with Article 47 of the Constitution and transforming legal landscape in Kenya.

Under the old regime, a party seeking judicial review had to follow a highly technical procedure, beginning with the filing of a chamber summons for leave. This was governed by Order 53, Rule 1 of the Civil Procedure Rules 2010. Once leave has been granted, the applicant would proceed to file a Notice of Motion within twenty-one (21) days, supported by a statutory declaration and verifying affidavit. These documents were required to set out the nature and description of the Applicant, the reliefs sought, typically order of certiorari, mandamus or prohibition and the grounds upon which the application was premised. In addition, strict time limits applied, especially in respect for to applications for certiorari, which had to be made within six months of the impugned decisions. This regime, while orderly, was rigid and formalistic, often preventing deserving litigants from accessing judicial relief due to procedural technicalities.

The Fair Administration Action Rules, 2024, radically reconfigure this procedural framework. First and most significantly, the requirement for leave to commence judicial review proceedings has been abolished. A party now commences proceedings by filing an originating motion, accompanied by supporting affidavit and any relevant documents. This simplification reflects the shift toward a constitutional and rights-based approach to administrative law. Furthermore, the strict limitation on reliefs has been relaxed. While the Law Reform Act restricted applicants to the three traditional prerogative writs, FAA Rules 2024, in tandem with Fair Administrative Action Act, 2015 now permit a broader range of remedies. This includes declarations, injunctions, compensation and structural interdicts. This development recognizes the evolving needs of administrative justice and aligns Kenya’s legal practice with international best standards.

Another notable difference lies in the scope and grounds of review. Under the traditional framework, review focused on illegality, irrationality and procedural impropriety. However, the FAA rules 2024 expand the grounds for review to include legitimate expectation, proportionality, procedural fairness and the violation of constitutional rights under Articles 47 and 50. For instance, an administrative decision that is technically lawful but substantially unfair can now be challenged on grounds of proportionality and unreasonableness.

In terms of timelines, the FAA Rules, 2024, provide that applications for judicial review should be made within 90 days of the impugned decision. This is more generous than the earlier six months limit for certiorari under the Law Reform Act and creates uniformity in timelines for all types of administrative actions. The court also retains discretion to extend time for good cause shown, ensuring that substantive justice is not sacrificed at the altar of procedural timelines.

Substantively, the FAA Rules are informed by recognition that judicial review in post-2010 constitution era is not simply a matter of administrative regularity but a fundamental rights enforcement. These rules integrate constitutional values, especially human dignity, accountability, and responsiveness, into the review process. Courts are now encouraged to consider not just whether the procedure was followed but whether the administrative action met the standards of fairness, transparency and justifiability in an open and democratic society. Judicial pronouncements have already endorsed this shift. In Republic v Public Procurement Administrative Review Board Ex Parte Syner-Chemie Ltd [2016], where the court observed that Fair Administrative Action Act overrides the Law Reform Act and Order 53 where there is conflict. Similarly, in Judicial Service Commission v Mbalu Mutava [2015], the court of Appeal affirmed that Article 47 of the Constitution is the new foundation for administrative law in Kenya. These decisions validate the legal and policy rational behind the FAA rules 2024.

In conclusion, the Fair Administrative Action Rules, 2024 represent a transformative moment. They shift judicial review from an outdated, common-law-based procedural mechanisms to a vibrant, constitutional remedy designed to protect individual rights and promote accountable governance. By removing procedural bottlenecks, expanding the scope of reliefs and grounding the process into constitutional values, the FAA rules promise more accessible, efficient and just administrative law adjudication.