Can a Private Body Be Subject to Judicial Review in Kenya?

A private company, association, professional body or other non-state organisation can make a decision with serious consequences for an individual or business. The fact that the organisation is private does not by itself end the judicial-review inquiry. Equally, a private dispute is not automatically transformed into a public-law claim because it is important or unfair.

In Kenya, the more useful questions are: what power was exercised; what is the nature of the function and decision; whose legal rights or interests are affected; and does the law provide a more suitable contractual, statutory, internal or civil remedy? The answer depends on the particular legal setting, not the organisation’s label alone.

Being private is not the end of the inquiry

The Constitution of Kenya applies the Bill of Rights to all law and binds State organs and all persons. Article 47 protects the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The constitutional text therefore does not support a simple rule that only government departments can be required to act fairly in a legally relevant way.

However, the applicable right, the nature of the decision and the relationship between the parties still matter. A court will not treat every disagreement between private parties as an occasion for judicial review. The claimant must identify an administrative action or a public-law wrong, as well as a remedy that the court can properly grant.

The Act reaches state and non-state decision-makers

Section 3 of the Fair Administrative Action Act, 2015 extends beyond State institutions to non-state administrators and bodies carrying out judicial or quasi-judicial functions, or making decisions that affect legal rights or interests. Its definition of administrative action is correspondingly broad, covering acts, omissions and decisions by persons, bodies and authorities.

This language is deliberately broader than a narrow focus on formal government bodies. It does not dispense with analysis. The Act must be read alongside the Constitution, the law creating or governing the relevant function, the terms of the relationship and the specific decision under challenge. The Supreme Court’s decision in Praxedes Saisi likewise describes fair administrative action as extending beyond State bodies where public or quasi-judicial power is exercised.

Examine the source of power and the function

A strong starting point is the source of the impugned power. Is it conferred by the Constitution, legislation, regulations, a licence, delegated authority or another public instrument? Is the body administering a statutory scheme, making a decision that affects access to a regulated activity, or carrying out a function with a public or quasi-judicial character? These features may point towards public-law accountability even where the decision-maker is not a State organ.

The nature and effect of the function are equally important. A body may make a decision that affects the public, a defined class or an individual’s legal position in a way that calls for the standards of lawful and fair administrative action. The inquiry should focus on the actual power and decision, not assume that incorporation, profit-making or private ownership settles the issue. Recent decisions continue to apply this fact-sensitive approach; see, for example, Mereka v Sikalieh [2025] KEHC 3467 (KLR).

Purely private disputes may call for a different remedy

A dispute arising from an ordinary contract, employment relationship, membership arrangement or voluntary association may be primarily private in character. The appropriate route may be a contractual claim, employment process, arbitration, internal appeal or another civil remedy. The existence of a contract does not conclusively exclude public-law standards, but it is an important part of the analysis, particularly where the complaint is simply that one party did not perform a bargain.

The desired remedy is a useful check. Judicial review is designed to address unlawful decision-making; it is not a general procedure for awarding contractual damages, resolving every factual dispute or conducting a full retrial of a private disagreement. If the essential issue is breach of contract, damages, performance of private obligations or disputed facts requiring oral evidence, another forum may be better placed to resolve it.

Fair procedure remains central

Where a private or non-state body is exercising an administrative, public or quasi-judicial function, fairness may require notice of the proposed adverse action, an opportunity to respond, relevant information or materials, and reasons. Section 4 of the Fair Administrative Action Act sets out procedural protections where administrative action is likely to adversely affect rights or fundamental freedoms. What fairness requires is context-specific: it depends on the governing framework, the seriousness of the decision and the interests at stake.

Neither the affected person nor the decision-maker should assume that a written policy alone answers the question. A policy must be applied consistently with the Constitution, the Act and any applicable statute. Conversely, a fair-process complaint should identify the concrete omission: no notice, no hearing, undisclosed adverse material, bias, inadequate reasons or failure to follow a governing procedure.

A practical screening checklist

• Identify the exact decision, omission or proposed action, its maker and its legal effect.
• Find the source of the power: statute, regulations, licence, delegated authority, constitution, contract or rules.
• Ask whether the function is administrative, public or quasi-judicial in character, rather than simply private conduct.
• Preserve the notice, rules, correspondence, hearing record, reasons and any internal-review decision.
• Check for contractual, statutory, employment, arbitral or internal remedies and their time limits.
• Seek advice promptly on the appropriate forum and relief before a decision takes effect or a deadline expires.

The question is not whether a body is public in name. It is whether the decision and function attract public-law standards, and whether judicial review is the suitable legal response to the particular wrong.