Which Decisions Can Be Challenged by Judicial Review in Kenya?

Judicial review is not available merely because a person is unhappy with an institution. There must be an identifiable action, decision, omission or legal duty affecting rights or interests. Start by defining what happened—or what the decision-maker is legally required and has failed to do.

In Kenya, the enquiry is broader than a final letter issued by a government office. The Constitution and the Fair Administrative Action Act can reach decisions, omissions and proposed decisions in appropriate circumstances. But the claim must be concrete, timely and brought through the right statutory or judicial route.

Start with a decision, omission or legal duty

The Fair Administrative Action Act, 2015 defines administrative action to include the powers, functions and duties of authorities or quasi-judicial tribunals, and an act, omission or decision of a person, body or authority that affects legal rights or interests. Its definition of a decision includes one made, proposed to be made or required to be made.

That wording means a claim need not always wait for a final formal decision. A refusal to decide, unreasonable delay in performing a statutory duty, or a sufficiently definite proposed action may raise a review question. The legal and factual basis must nevertheless be clear enough for a court to assess. A vague concern about what an authority may do at some unknown time is usually not enough.

Pin down the event in practical terms. A useful chronology records the application or complaint made, the step required by the governing scheme, each response or missed deadline, and the immediate consequence for the affected person. It helps distinguish an actionable refusal from an ordinary delay in a continuing process, and a concrete proposal from preliminary discussion or consultation.

Public authorities and tribunals are common subjects of review

Judicial review commonly concerns public bodies exercising statutory, administrative, judicial or quasi-judicial power, including regulators, licensing bodies, authorities, commissions and tribunals. The question is whether the institution exercised a legally conferred function affecting the applicant’s rights or interests.

Article 165 of the Constitution gives the High Court supervisory jurisdiction over subordinate courts and over persons, bodies or authorities exercising judicial or quasi-judicial functions, subject to the Constitution’s limits. Article 47 adds the constitutional standard of lawful, reasonable and procedurally fair administrative action. The particular enabling law remains essential because it identifies the decision-maker’s powers, procedure and any specialist remedy.

Private bodies may be reviewable in the right setting

A non-state actor can fall within the Act where it administers authority or performs a judicial or quasi-judicial role affecting legal rights or interests. The detailed question—whether the source and nature of its function attract public-law standards—is addressed in the accompanying guide to private bodies. Here, do not let a private label obscure a concrete, legally consequential decision.

Proposed action must be sufficiently real and ripe

The Act’s reference to a proposed decision does not turn judicial review into an advisory service. A court needs an identifiable proposal, threatened action or omission and a real effect on legal rights or interests. The more developed the proposal, record and legal basis, the more readily a court can assess legality and fairness. A person should not have to wait for irreversible harm where a definite unlawful action is imminent, but neither should a court decide a hypothetical dispute.

Preserve the documents that show the proposal is real: notices, draft decisions, correspondence, meeting minutes, published criteria or a demand for representations. They may also show whether the appropriate response is to participate in the process first, seek an internal review, make a statutory objection or approach court. The remedy should be proportionate to the stage the decision has reached.

Alternative remedies and exhaustion remain important

A reviewable decision may still have to be raised first through a prescribed objection, review or appeal. Read the enabling statute and its deadlines before choosing a route; another remedy can affect suitability even when it does not cure the alleged defect. Judicial review is not a way to recover an expired appeal or obtain a full factual rehearing.

A pre-litigation screening checklist

• Identify the exact decision, omission or proposed action, who is responsible and when it occurred.
• Find the statutory, constitutional, regulatory or other legal source of the relevant power or duty.
• Explain how the action affects a legal right or interest rather than a speculative concern.
• Collect the notice, reasons, record, policy, correspondence and evidence of any delay or refusal.
• Check whether an objection, review, appeal, employment process, arbitration or civil claim is available.
• Seek advice promptly on ripeness, time limits, exhaustion and the remedy that fits the issue.

The strongest claims identify a concrete exercise of power, or failure to perform a legal duty, and connect it to the governing framework. That precision distinguishes a reviewable public-law dispute from an abstract disagreement or claim better resolved elsewhere.