JUDICIAL REVIEW

Question 1

definition of JR

Answer 1

Judicial review is a process under which a government’s executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority.

Question 2

KENYA PROVISIONS

Answer 2

1. FAA - s.9
2. COK - 22 and 165
   HC

Question 3

3 cases under CA

Answer 3

1. Alexander Mugo Mtetu & 5 others v Kenya Breweries Limited & 4 others
   Legal issues: Whether section 9(4) of the Fair Administrative Action Act which provided for the procedure for judicial review was applicable in a suit instituted before the exhaustion of statutorily prescribed avenues of dispute resolution.
   Held: Section 9 of the Fair Administrative Action Act provided for the procedure for judicial review, which was not the case in the instant suit. In that regard, that provision was not applicable in the circumstances. There was an obligation under section 9(4) of the Fair Administrative Action Act for an applicant who wished to be exempted from following the alternative dispute resolution to apply to the instant court for exemption. There was no such application in the instant matter.
2. Royal Mabati Factory Limited v Competition Authority of Kenya
   jurisdiction of the Competition Tribunal - appellate jurisdiction vis-a-vis judicial review –whether the appellate power given to tribunals on appeals against exercise of discretion and questions of law were indistinguishable from judicial review claims - Constitution of Kenya, 2010, articles 3(1), 10, 20(4), and 47(1); Competition Act, No.12 of 2010, section 73.
   Issue: Whether the appellate power given to tribunals on appeals against exercise of discretion and questions of law were indistinguishable from judicial review claims.
   Held: As an appellate tribunal, appeals against exercises of discretion and questions of law tended to be indistinguishable many a times from judicial review claims. That was because, they were both directed to re-examine the same exercise of power by administrative decision makers. Consequently, the distinction was at times equivalent to serving a fruitless task of categorisation for categorisation’s sake. That was not to say that the distinction was without meaning, but rather to recognise that overlap and be mindful not to exceed the tribunal’s jurisdiction.
   The tribunal was conscious that it was called upon to uphold, defend and protect the Constitution of Kenya, 2010, (article 3(1)), protection of the Bill of Rights in interpretation (article 20(4), and the values and principles under articles 10, 20 and 47(1)) of the Constitution. The availability of a statutory mechanism should be explored before judicial review issues were considered. The Act as read together with the Constitution empowered the Tribunal to determine the issue of whether the appellant was accorded a fair hearing.
3. Telkom Kenya Limited & another v Competition Authority of Kenya
   Legal issue: Whether the Competition Tribunal had judicial review powers over the decisions of the Competition Authority.
   Held: From a look at the jurisdiction and powers of the Tribunal under the Act, the powers donated were appellate in nature and the remedies to which it could grant were defined. Whether Parliament intended to give the Tribunal judicial review powers was doubtful as the same was exercised as supervisory powers by the High Court. The use of the term ‘review’ should therefore not be construed to mean ‘judicial review’. The Tribunal was limited to reviewing the merits of the decision of the Competition Authority and not the procedure of making the same.