Judicial Review or Appeal? Understanding the Difference in Kenyan Administrative Law

A person affected by an administrative decision may feel that the decision is wrong, unfair or unsupported by the evidence. Those concerns can point to different legal routes. An appeal generally asks whether the decision-maker reached the correct result. Judicial review asks whether the decision-maker exercised power lawfully, fairly and within the limits set by the Constitution and legislation.

Start with the question: what is being challenged?

Judicial review is engaged when the alleged defect lies in the legality of the process or exercise of power: lack of jurisdiction; failure to give required notice or a fair hearing; irrelevant considerations; bias; an error of law; or unreasonable delay. Section 7 of the Fair Administrative Action Act, 2015 sets out review grounds that must be applied to the facts.

By contrast, an appeal is ordinarily the route where the real complaint is that the evidence should have been weighed differently, a factual finding is wrong, a penalty is excessive under the appellate standard, or a specialist decision-maker should have reached another substantive conclusion. The governing statute is decisive. Some appeal bodies can confirm, vary or replace a decision; a judicial-review court does not ordinarily exercise that power. Make the distinction from the operative statute and decision record, not the label in a complaint.

An appeal tests correctness within the appeal structure

An appeal exists only where the Constitution, a statute, regulations or rules provide for it. Its scope may be confined to law, extend to fact and law, or permit a fresh assessment by a specialist tribunal. Missing an appeal deadline does not automatically make judicial review an alternative route to obtain the same reconsideration.

Where Parliament has provided an internal objection, review or appeal, it may expect the affected person to use it first. Section 9 addresses exhaustion of available internal remedies, while allowing a court to exempt an applicant in exceptional circumstances. An exception should not be assumed simply because the process is inconvenient or the outcome uncertain.

Judicial review supervises the exercise of public power

Article 47 of the Constitution makes lawful, reasonable and procedurally fair administration a constitutional requirement. Judicial review gives legal effect to those standards and to the decision-maker’s enabling law. It is not restricted to the labels used in a letter or pleadings. A court will look at the power exercised, the procedure followed and the substance of the alleged legal defect.

Merits may matter, but review is not a second hearing

In Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), the Supreme Court held that judicial review may interrogate both process and merit in appropriate circumstances. It explained that meaningful application of section 7 may require some merit-based analysis, but confined that analysis to uncontroverted evidence. The Court also made clear that judicial review is not a full merits-based appeal, is unsuitable for disputed facts and complex technical questions, and does not authorise the court to substitute its decision for that of the decision-maker.

That is the current legal position, not an invitation to recast every appeal as a constitutional claim. A party cannot avoid the evidence, witnesses and statutory procedure required by the proper forum simply by describing a factual or technical disagreement as unfairness. Conversely, an appeal right does not necessarily cure a serious jurisdictional or procedural defect. The legal route must fit the complaint and remedy.

Choose the forum and procedure before the deadline

Start with the decision itself: who made it, under what legal power, on what date and with what stated reasons? Read the enabling statute for an objection, review or appeal process, its deadline and any exhaustion requirement. Preserve the decision letter, record, reasons and correspondence.

Procedure should follow the claim rather than the other way around. Traditional judicial-review practice has been associated with the Law Reform Act and Order 53 of the Civil Procedure Rules. Constitutional and statutory claims may engage different procedural frameworks, including the Fair Administrative Action Rules, 2024. Current advice is essential where remedies overlap or time is short.

A short decision guide

• Use the statutory appeal or review route where the law gives a forum power to reconsider the evidence, findings or outcome sought.
• Consider judicial review where the central complaint is unlawful power, material procedural unfairness or a review ground under section 7 of the Fair Administrative Action Act.
• Do not assume the labels decide the case. The court will examine the substance of the complaint, the statutory scheme and the relief requested.
• Act promptly. Identify all time limits and internal steps before an appeal or review becomes unavailable.

The correct choice is often clear once the decision, legal power and desired remedy are set beside the relevant statute. When they are not, early legal advice can prevent a party from pursuing a potentially sound complaint in the wrong forum.