How Far Should Judicial Review Extend? Revisiting Its Constitutional Limits

Analysis. Judicial review in Kenya has moved beyond its historic common-law setting. The Constitution protects fair administrative action, Parliament has enacted a detailed statutory framework, and courts may in appropriate cases look beyond the bare form of a decision. That development is essential to accountability. The harder question is how to preserve it without converting judicial review into a general appeal from every difficult administrative, professional, employment or commercial decision.

The answer should not be a return to a narrow process-only formula. It should be a principled discipline: begin with the constitutional right, identify the legal power and the particular wrong, respect the forum Parliament has created, and match the intensity of review to the decision, evidence and remedy sought.

The constitutional setting changes the question, not every answer

Articles 23, 47 and 165 of the Constitution place judicial review within Kenya’s constitutional order. Article 47 safeguards fair, efficient, lawful and reasonable administration. The Fair Administrative Action Act, 2015 gives that right practical content, including review grounds concerning authority, procedural fairness, rationality, proportionality, delay and failure to act.

The constitutional position changes the nature of the inquiry, but it does not decide every case. The practical questions remain: what power is at issue, what factual record is reliable, which institution can remedy the defect effectively, and would intervention correct illegality or merely transfer the primary decision to a court?

Institutional competence is part of accountability

The value of a boundary is not that it shelters administrators from scrutiny. It directs scrutiny to the institution capable of doing the relevant work. A licensing authority, disciplinary body, specialist regulator or tribunal may have statutory tools, expertise and access to evidence that a review court lacks. Courts should require legality and justification without casually taking over the original task.

This is not a plea for judicial abstention where rights are at stake. It is a plea for precision. A court can meaningfully enforce Article 47 by requiring lawful authority, fair procedure, rational reasons and attention to material considerations. It need not choose between superficial review and an unrestricted rehearing of every administrative dispute.

Limited merits scrutiny needs workable guardrails

Praxedes Saisi confirms that modern review is not confined to empty procedural ritual. Its significance is best understood as a demand for meaningful scrutiny where the record permits it, not as a licence to relabel any outcome challenge as a constitutional wrong.

Those qualifications are central. A constitutional label should not allow a party to avoid a statutory appeal, bypass a specialist forum or resolve contested evidence through affidavit proceedings. The intensity of review should respond to the rights affected and the legal defect alleged, while remaining alert to the forum that can properly test evidence and make the primary decision.

Power, not labels, should guide the boundary

Modern administration is not confined to a conventional government office. Delegated, regulated and institutional arrangements may all exert serious influence over legal interests. That reality supports careful constitutional scrutiny wherever a function has genuine public or quasi-judicial consequences.

But breadth should not erase legal categories. A purely private contractual or employment dispute may have an effective remedy in contract, employment law, arbitration or an internal process. The fact that a claim can be framed as unfair does not itself establish that judicial review is the suitable remedy. The source of the power, nature of the function, effect on legal rights and available alternative remedy should remain the working tests.

A principled boundary for the future

The best boundary is neither formalism nor judicial supremacy. Courts should intervene where there is an identifiable unlawful exercise of power, serious procedural unfairness, irrationality, disproportionate interference with rights or a failure to perform a legal duty. They should be cautious where the claim depends on disputed facts, specialist evaluation, an available statutory appeal or a request to make the original decision anew.

That discipline also has a constructive effect outside litigation. Administrators who explain the legal source of their authority, identify the material they relied on and confront the principal submission made against their proposed action create a record that can be understood, corrected internally and, if required, reviewed without speculation. A transparent record reduces the pressure for courts to infer reasons after the event.

That approach gives effect to the Constitution without weakening institutional competence. It permits robust review of power while preserving the distinction between supervising legality and administering the underlying function. It also encourages reasoned decisions and early correction of procedural defects before avoidable disputes escalate into litigation and delay. In the long run, that distinction strengthens rather than limits the legitimacy of judicial review.