Illegality and Ultra Vires Decisions: When Kenyan Courts May Intervene

Public bodies, tribunals and other administrators do not have a general power to act as they wish. Their authority must come from the Constitution, legislation, regulations or another valid legal source. Judicial review for illegality asks whether the decision-maker stayed within that legal boundary. It is often described as an ultra vires challenge: an allegation that a decision was made outside the powers conferred by law.

The question is not whether the court would have made a wiser decision. It is whether the actual decision-maker had authority to act, complied with the legal limits on that authority and performed any duty the law imposed. A well-founded illegality claim identifies the precise power, condition, duty or legal rule said to have been breached.

Illegality begins with the source of power

Start with the enabling law. It may identify who may decide, what they may decide, the purpose for which the power may be used, the procedure to follow and any conditions that must be met first. A decision made by the wrong person, a body acting without authorisation or an official who exercises a power that Parliament did not confer may be vulnerable to review.

Section 7(2) of the Fair Administrative Action Act, 2015 allows a court or tribunal to review an administrative action or decision where, among other grounds, the decision-maker was not authorised by the empowering provision, acted in excess of jurisdiction or power, or exercised delegated power contrary to a law restricting delegation. The statutory wording gives a practical route from the legal source to the alleged defect.

Ultra vires means exceeding legal limits

A body can act ultra vires even though it has some authority in the subject area. A licensing authority may have power to regulate licences but not to impose a condition the law does not permit. A tribunal may have power to decide a defined category of dispute but not a dispute outside its statutory jurisdiction. A delegated decision-maker may have authority to act only after a required approval, consultation or finding; acting without that condition can exceed the power given.

The governing text must be read as a whole. A broad power may be shaped by definitions, objectives, procedural safeguards, regulations and constitutional requirements. The fact that a decision appears administratively convenient does not create authority for it. Conversely, a court will not invalidate a decision merely because an affected person prefers a narrower reading; the asserted limit must be supported by the applicable law.

Purpose, relevant matters and legal error matter

Lawful power must be used for its lawful purpose. Section 7(2) includes a decision taken with an ulterior purpose calculated to prejudice legal rights, failure to take account of relevant considerations, acting on an unauthorised direction, bad faith and abuse of power. These grounds require more than disagreement with the conclusion. The claimant should show what the decision-maker was legally required to consider, what was ignored or improperly relied on, and why the defect was material.

A material error of law may also justify review. That can arise where an administrator applies the wrong legal test, misinterprets a provision central to the decision or treats a legal requirement as irrelevant. Not every minor error changes the outcome or justifies relief. The connection between the legal error and the decision should be identified clearly, with the relevant statute, record and reasons.

Refusal to act and unreasonable delay can be unlawful

Illegality is not confined to a positive decision. A public body may have a legal duty to make a decision, consider an application, determine a matter or take a required step. Section 7(2) recognises unreasonable delay or failure to act in discharge of a duty imposed under written law as a review ground. The issue is not simply that a person wants a faster result; it is whether a legal duty exists and the delay is unreasonable in context.

The record matters. Keep the application, acknowledgement, statutory timeline, follow-up correspondence, requests for information and any response explaining the delay. A court considering mandamus will need to know the exact duty sought to be enforced. Mandamus may compel a body to perform a clear duty, but it will not ordinarily dictate the substantive outcome of a discretionary decision.

Relief must answer the legal wrong

Where a decision is shown to be unlawful, the court can quash it, restrain a threatened unlawful step, require performance of a clear duty, or grant other appropriate relief under the Constitution of Kenya and the Fair Administrative Action Act. The form of relief should follow the identified defect and the stage the matter has reached.

Relief is discretionary. The court may consider delay, an adequate alternative remedy, the effect on third parties and whether the requested order would serve a useful purpose. A successful illegality claim does not necessarily entitle the applicant to the decision they wanted. Often the proper result is that the decision-maker reconsiders the matter lawfully, following the correct procedure and legal test.

A practical way to assess an ultra vires claim

• Identify the exact decision, omission or threatened action and who made it.
• Obtain the enabling statute, regulations, delegation instrument, policy, notice, reasons and record.
• Specify the power, condition, procedure or duty that was allegedly breached.
• Distinguish a material legal defect from dissatisfaction with the merits or evidence.
• Check for an internal review or appeal and any deadline or exhaustion requirement.
• Match the remedy sought to the demonstrated wrong: quashing, restraint, performance of duty or other appropriate relief.

Illegality review is strongest when it connects the challenged act to a concrete legal limit. A precise statutory analysis and complete record help the court determine whether public power has been exercised lawfully.