[2021] KEHC 460 (KLR)

Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment)

Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) [2021] eKLR

Neutral citation: [2021] KEHC 460 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 337 of 2018

WK Korir, J

May 13, 2021

Between

Felix Kiprono Matagei

Petitioner

and

Attorney General

Respondent

and

Law Society of Kenya

Amicus Curiae

Need for Parliament to repeal sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules to avoid confusion as to the manner in which judicial review actions should be instituted.

Reported by Beryl Ikamari

Judicial Review- institution of judicial review actions - statutory requirement that leave should be obtained before judicial review proceedings could commence - purpose of seeking leave in the institution of judicial review actions - where the Law Reform Act made leave a requirement for the institution of judicial review actions while the Fair Administrative Action Act did not make leave a requirement - whether Parliament should repeal section 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules which codified common law rules on judicial review, in light of the enactment of the Fair Administrative Action Act which provided for judicial review of administrative action in alignment with the Constitution - Law Reform Act, (cap 26), sections 8 and 9; Fair Administrative Action Act, No 4 of 2015, sections 10(1) and 12; Civil Procedure Rules, 2010, order 53. Constitutional Law- constitutionality of judicial review proceedings - constitutionality of the requirement that leave should be obtained before judicial review proceedings commence - claim that the requirement for leave to be obtained before the commencement of judicial review proceedings violated the right to equality and freedom from discrimination, right to access to justice and right to a fair hearing - whether it was constitutional for leave to be obtained before the commencement of judicial review proceedings, as mandated under section 9(1)(b) of the Law Reform Act Constitution of Kenya 2010, articles 22, 23, 48 and 59(c) and 59(d); Law Reform Act, (cap 26), sections 8 and 9; Civil Procedure Rules 2010, Order 53. Constitutional Law- constitutionality of statutes - principles of constitutional interpretation and statutory interpretation - what were the principles of interpretation applicable in determining whether statutory provisions were constitutional - Constitution of Kenya 2010, articles 259 and 159(2).

Brief facts The petitioner, a lawyer, sought to challenge the constitutionality of sections 8 and 9 of the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules. He contended that those statutory provisions violated the principle of the supremacy of the Constitution of Kenya, 2010 (Constitution), the right to equality and freedom from discrimination, the right to access to justice and the right to a fair hearing. Section 8 of the Law Reform Act mandated the High Court to issue judicial review orders where those orders could be issued by the High Court of England and section 9(1)(b) of the Law Reform Act made it mandatory for leave to be obtained from the High Court before judicial review proceedings were commenced. Order 53 of the Civil Procedure Rules provided for the procedure in relation to judicial review proceedings.

Issues

Whether it was constitutional for leave to be obtained before the commencement of judicial review proceedings, as mandated under section 9(1)(b) of the Law Reform Act.

What were the principles of interpretation applicable in determining whether statutory provisions were constitutional?

What was the purpose of seeking leave before the commencement of judicial review proceedings?

Whether it was necessary for Parliament to repeal sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules which codified common law rules on judicial review, in light of the enactment of the Fair Administrative Action Act which provided for judicial review of administrative action in alignment with the Constitution.

Held

It was apparent that the issue raised by the petitioner for determination was about whether sections 8 and 9 of the Law Reform Act and rule 1 of order 53 of the Civil Procedure Rules should be declared unconstitutional. However, a deeper review of the petitioner's case showed that the only question he raised was on the constitutionality of the requirement for leave prior to the commencement of judicial review proceedings.

In determining whether the impugned provisions were unconstitutional, the court was required to read the provisions against the articles of the Constitution alleged to be violated by the statutory provisions. It would also consider the principles of constitutional interpretation and the principles of statutory interpretation.

Article 259 of the Constitution required the court to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. The court, in interpreting the Constitution was also bound by article 159(2) of the Constitution. Article 159(2) of the Constitution provided inter alia that justice had to be done to all irrespective of status and that justice would not be delayed and it would be administered without undue regard to procedural technicalities. Additionally, the well-established principle of law was that the Constitution had to be interpreted broadly, liberally and purposely.

The presumption of constitutionality was applicable when determining the constitutionality of a statute. The person who alleged that the statute was unconstitutional had the burden of proving that allegation. In determining whether a statute was unconstitutional, the court had to be guided by the intention expressed in the statute itself. The court had to also consider the direct and inevitable effect of the statute while bearing in mind the history of the enactment in question.

In determining the question of the constitutionality of a statute the court had to consider the object and purpose of the impugned law and also the effect of the legislation on constitutional provisions. In respect of a law that was in force before the promulgation of the Constitution, the court was required to closely look into the provisions so as to ensure that they complied with the constitutional principles and values.

The grant of leave for the commencement of judicial review proceedings was an exercise of judicial discretion. The application for leave was ordinarily heard ex parte but the court had the discretion to direct that the application be heard inter partes. The purpose of the requirement for leave to be obtained was to eliminate at an early stage judicial review applications that were frivolous, vexatious or hopeless and secondly to ensure that the applicant was only allowed to proceed to substantive hearing if the court was satisfied that there was a case fit for further consideration.

In Kenyan jurisprudence, the co-existence of common law prerogative writs and constitutional judicial review remedies had created an inconclusive piece of jurisprudence and a perception of conflict on the question of the applicable law. It meant that there was a two-track judicial review process and that where a judicial review application was brought under sections 8 and 9 of the Law Reform Act, the Civil Procedure Rules under order 53, were applicable but those Civil Procedure Rules were inapplicable where judicial review remedies were sought under the provisions of the Constitution.

Although the superior courts had been consistent that the traditional judicial review had been fused with the constitutional and statutory review, there remained confusion as to the procedure to be used in approaching the courts. The purpose of judicial review, however, remained the same notwithstanding the applicable procedure but it was necessary to have a common procedure for attaining that purpose.

The Constitution implied that all legal principles derived their legitimacy from the Constitution. Any conflict between common law and the Constitution on judicial review had to be resolved in favour of what the Constitution stated.

The Fair Administrative Action Act was enacted pursuant to article 47 of the Constitution. It brought the practice of judicial review into conformity with the Constitution and it recaptured and expanded the common law grounds of judicial review. Section 12 of the Fair Administrative Action Act provided that the Act added to and did not derogate from the general principles of common law and the rules of natural justice. Therefore, even as Kenya transited to the judicial review under the Fair Administrative Action Act, the common law principles that had been established through a long line of authorities would continue guiding the courts in determining applications for orders of judicial review. Relevant decisions from other jurisdictions would also continue to be applicable.

A perusal of the Fair Administrative Action Act showed that Parliament intended to substitute common law judicial review with statutory judicial review. It was unclear why Parliament did not go to the extent of repealing sections 8 and 9 of the Law Reform Act. The failure to repeal those provisions of the Law Reform Act led to confusion about the procedure for the institution of judicial review proceedings.

The Fair Administrative Action Act did not make provision for leave to be obtained before judicial review proceedings could commence. Section 10(1) of the Fair Administrative Action Act provided that an application for judicial review had to be heard and determined without undue regard to procedural technicalities.

The procedural rules in order 53 of the Civil Procedure Rules governed judicial review prior the promulgation of the Constitution and were in force as they had not been repealed. There, however, would appear to be a clear intention to repeal and replace those rules and their originating law being sections 8 and 9 of the Law Reform Act. The clear objective of the Fair Administrative Action Act under section 10(2) was to have a regime of rules made by the Chief Justice governing judicial review of administrative action. Therefore, the petitioner could be flogging a dead horse. The Fair Administrative Action Act appeared to have created a new legal regime for review of administrative action. That regime was more aligned to articles 23 and 47 of the Constitution and should be the sole foundation of judicial review in Kenya.

All law had to conform to the provisions of the Constitution and therefore the provisions of sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules had to be construed with such adaptations, alterations and modifications so as to conform with the Constitution. Article 20(3) of the Constitution mandated fundamental constitutional values to influence common law. The Constitution was the sole standard guiding the application of statutory or common law rules in the settlement of disputes. As a result, common law rules in judicial review that fell short of the purport, tenor and spirit of the Constitution, ought to be developed to meet the constitutional standard.

The petitioner did not advance a convincing argument to show that the need for leave before the commencement of judicial review proceedings violated articles 22, 23, 48 and 59(c) and 59(d) of the Constitution. The requirement for leave did not impede access to justice as the discretion to grant leave had to be exercised judiciously and denial of leave could be appealed. The need for leave could not be said to be unconstitutional.

A party that sought to enforce the Bill of Rights had to state the provisions of the Constitution that had been infringed, the manner of the infringement and the nature and extent of the infringement and the injury suffered. The petitioner alleged that certain provisions in the Bill of Rights had been violated without tendering evidence on how those provisions had been violated.

The petitioner's claim that the need for leave before applying for judicial review orders contravened article 159(3)(c) and 159(3)(d), which required justice to be done without delay and undue regard to technicalities, did not accord with the decisions of the superior courts of Kenya to the effect that procedural rules were necessary for the delivery of justice.

The petitioner demonstrated the need for the repeal of sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules. Those provisions no longer served any purpose as the Fair Administrative Action Act had aligned judicial review of administrative action with the Constitution.

It was necessary for the Chief Justice to make rules under section 10(2) of the Fair Administrative Action Act and the Cabinet Secretary for the time being responsible for the administration of justice, in consultation with the Commission on Administrative Justice, to make regulations under section 13(1) of the Act. The National Assembly also needed to formally repeal sections 8 and 9 of the Law Reform Act to make the Fair Administrative Action Act the only law upon which applications for orders of judicial review would be anchored.

Petition dismissed; parties to meet their own costs.

Citations CasesKenya Center for Rights Education and Awareness & anothers v John Harun Mwau & 6 others [2012] 2 KLR 261 - (Explained)

Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others Petition 371 of 2016; [2017] eKLR - (Explained)

Child Welfare Society of Kenya v Republic & 2 others ex-parte Child in Family Focus Kenya Civil Appeal 20 of 2015; [2017] eKLR - (Explained)

Communication Commission of Kenya & 5 others v Royal Media Services & 5 others Petition Nos 14, 14A, 14B & 14C of 2014; [2014] eKLR (Consolidated) - (Explained)

Council of County Governors v Inspector General of National Police Service & 3 others Petition No 298 of 2014; [2015] eKLR - (Explained)

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] 3 KLR 718 - (Explained)

Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others Petition Nos 13 A, 14 &15 of 2013; [2014] eKLR (Consolidated) - (Explained)

Kenya Human Rights Commission v Attorney General & another Constitutional Petition No 87 of 2017; [2018] eKLR - (Explained)

Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board Petition 495 of 2015; [2016] eKLR - (Explained)

Khaminwa, Justice Joyce v Judicial Service Commission & another Judicial Review Miscellaneous Application 190 of 2014; [2014] eKLR - (Explained)

Kimote ,Stephen Mwangi v Murata Sacco Society Environment and Land Case 219 of 2017; [2018] eKLR - (Explained)

Korir ,Nicholas Kiptoo Arap v Independent Electoral and Boundaries Commission & 6 others, Civil Appeal (Application) 228 of 2013; [2013] eKLR - (Explained)

Masai Mara (SOPA) Limited v Narok County Goverment Petition 336 of 2015; [2016] eKLR - (Explained)

Mbugua , Grace Njeri v Hannah Wanjiku Thong’ote Civil Appeal (Application) 15 of 2017; [2019] eKLR - (Explained)

Mirugi Kariuki v Attorney General [1992] KLR 8; (1990-1994) EA 156 - (Followed)

Mirugi Kariuki v Attorney General [1990-1994] EA 156 - (Mentioned)

Muhura, Peter Muchaiv Teachers Service Commission Cause 53 of 2014 (Formerly Hccc 84 of 2012 at Nyeri); [2015] eKLR - (Explained)

Municipal Council of Mombasa v Republic & another Civil Appeal 185 of 2001; [2002] eKLR - (Explained)

Murambi, Isaac Robert v Attorney General & 3 others Constitutional Petition 3 of 2016;[2017] eKLR - (Followed)

Mutua , Joshua Sembei v Attorney General & 2 others Civil Appeal 93 of 2015; [2019] eKLR - (Explained)

Mwicigi, Moses & 14 others v Independence Electoral and Boundaries Commission & 5 others Petition No 1 of 2015; [2016] eKLR - (Explained)

Obado,Zacharia Okoth v Edward Akong’o Oyugi & 2 others Civil Application 7 of 2014; [2014] eKLR - (Explained)

Olum & another v Attorney General [2002] 2 EA 508 - (Explained)

Ongera ,Justus v Director of Public Prosecutions & Ethics and Anti-Corruption Commission [2018] eKLR - (Explained)

Oyugi, Edward Akong’o & 2 others v Attorney General Constitutional Petition No 441 of 2015; [2019] eKLR - (Explained)

Panyako, Seth Ambusini v Independent Electoral and Boundaries Commission & 2 others Election Petition 14 of 2017;[2017]eKLR - (Explained)

Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji & Ahmed Hasham Lalji Misc. Application 153 of 2012; [2014] eKLR - (Explained)

Republic v Communications Commission of Kenya & 2 others Ex-parte East Africa Television Network Ltd [2001] KLR 82 - (Explained)

Republic v County Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L) 229 - (Explained)

Republic v Ethics and Anti-Corruption Commission & another; Mike Mbuvi Sonko & another (Interested Parties) Ex parte Paul Ndonye Musyimi Judicial Review Miscellaneous Application 35 of 2019; [2020] eKLR - (Explained)

Republic v Land Disputes Tribunal Court Central Division & another ex-parte Nzioka [2006] 1 EA 321 - (Explained)

Uwe Meixner & another v Attorney General Civil Appeal 131 of 2005; [2005] eKLR - (Explained)

TanzaniaNdyanabo v Attorney General [2001] 2 EA 485 - (Followed)UgandaPastoli v Kabale District Local Government Council and others [2008] 2 EA 300 - (Explained)South Africa Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22 - (Applied)

Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re: Hyundai Motor Distributors (Pty) Ltd and others v Smit N.O. and others [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 - (Explained)

Pharmaceutical Manufacturers Association of South Africa and another v President of the Republic of South Africa & others 2000 (2) SA 674 (CC) - (Explained)

Canada Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] SGCA 47 - (Explained)

R v Big M Drug Mart Ltd [1985] 1 SCR 295 - (Applied)

Texts Mutunga, W., (2015), Human Rights States and Societies: A Reflection from Kenya Transnational Human Rights Review 2 pp 63-102

Prempeh, HK., (2006), Marbury in Africa:Judicial Review and the Challenge of Constitutionalism in Contemporary Africa Tulane Law Review, Vol 80 No 4 p 72

StatutesEast Africa Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 53 rule 1 - (Interpreted)

Constitution of Kenya, 2010 articles 2(1) (5);3; 10; 20; 22; 23(3); 27; 47; 48; 50; 159(2)(c)(d); 165; 259; Schedule 6, section 7(1) – (Interpreted)

Fair Administrative Action Act, 2015 (Act No 4 of 2015) part 3; sections 7(2); 10(2); 11(1)(2); 13(1)(4) - (Interpreted)

Law Reform Act (cap 26) sections 8, 9(1)(b) – (Interpreted)

South AfricaConstitution of South Africa, 1996 section 39(2) – (Interpreted)

Judgment

1. The petitioner, Felix Kiprono Matagei, introduces himself as a Kenyan lawyer who is passionate about human rights and the rule of law. He states that he has filed this petition on his own behalf and on behalf the general public.

2. The Attorney General is the respondent and has been sued in his capacity as the principal legal adviser of the national government and a representative of the national government in court or in any other legal proceedings to which the national government is a party other than criminal proceedings.

3. In the process of hearing the petition I invited the Law Society of Kenya, and it accepted, to participate in these proceedings as Amicus Curiae.

4. The petitioner through his petition dated October 1, 2018 seeks the following reliefs:a)A declaration thatsections 8 & 9 of the Law Reform Act, cap 26 are unconstitutional, null and void;b)A declaration that the provisions of order 53 rule 1 of the Civil Procedure Rules, 2010are unconstitutional, null and void;c)Costs of thispetition; andOr such other orders as this honourable court shall deem just.

5. The petitioner’s case is based on the averments in the petition and an affidavit he swore in support thereof. From the petitioner’s pleadings, it is discerned that his case is hinged on articles 2(1) & (5), 3, 10, 20, 22, 23, 27, 48, 50, 159(2) and 259 of the Constitution.

6. The Petitioner avers that sections 8 and 9 of the Law Reform Act, cap 26 (“LR Act”) and rule 1 of order 53 of the Civil Procedure Rules, 2010 (“CPR”) violates the principle of the supremacy of the Constitution; and the rights to equality and freedom from discrimination, access to justice, and fair hearing. In support of his case the petitioner relies on the principles that guide courts in the exercise of judicial authority and the need for the Constitution to be interpreted in a manner that promotes its purposes, values and principles.

7. It is consequently the petitioner’s case that sections 8 and 9 of the LR Act and by extension order 53 rule 1 CPRare unconstitutional as they violate the cited constitutional provisions.

8. The petitioner asserts that article 23 of the Constitution bestows upon the High Court powers to grant appropriate relief which include an order for judicial review, a fact that section 8 of the LR Actdoes not recognize. It is his argument that the said provision mandates the High Court to only issue judicial review orders where the same are issuable by the High Court of England, and this, in his view, violates articles 23(3) and 165 on the reliefs available for violation of rights and the inherent powers of the High Court.

9. The petitioner contends that section 9(1)(b) of the LR Act which makes it compulsory for the leave of the High Court to be obtained before the commencement of judicial review proceedings is tyrannical and violates articles 22 and 23.

10. The petitioner asserts that a person cannot enjoy the right to access to justice under article 48 so long as leave remains a precondition to the commencement of judicial review proceedings. According to the Petitioner, this is because parties would be pre-occupied in urging and opposing the grant of leave and the court will have to consider the rival arguments before granting leave hence resulting in wastage of time in the judicial process and an increase in backlog of cases as a result of this requirement.

11. The petitioner further asserts that the requirement for leave denies the parties the right to access justice without delay and without undue regard to procedural technicalities as required by article 159(c)&(d). The Petitioner additionally avers that the Judicial Review Division of the High Court should be allowed to exercise its discretion on the grant of conservatory orders without the requirement for leave.

12. It is consequently the petitioner’s deposition that this court, guided by article 259, should interpret and dissect the Constitution in a manner that promotes its purposes, values and principles while taking into account article 47 and the Fair Administrative Action Act, 2015 (“FAA Act”) in order to promote modern-day practice of constitutional democracy in Kenya.

13. The respondent opposed the petition through grounds of opposition dated January 29, 2019. it is the respondent’s case that the petition does not disclose any unconstitutionality of the impugned provisions of the LR Act. Further, that the petition fails to demonstrate how the respondent violated the petitioner’s constitutional rights or any harm sustained as a result of the alleged violation.

14. The respondent referred to the decision in the case of Council of County Governors v Inspector General of National Police Service & 3 others [2015] eKLR and averred that all Acts of Parliament are presumed to be constitutional unless otherwise proven by the party alleging otherwise.

15. Relying on the decision in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR, the respondent stated that contrary to what is asserted by the petitioner, the leave stage is used to identify and filter out claims that are without merit thus saving judicial time.

16. In the submissions dated January 30, 2019, the petitioner identified the issue for the determination of the court as whether sections 8 and 9 of the LR Act, and by extension order 53 rule 1 of the CPRare inconsistent with the Constitution.

17. The petitioner submits that as provided in article 2(4), any law contrary to the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. It is his argument that other than the presumption of constitutionality of legislation, the purpose and effect of the impugned law must also be examined and the law nullified if the purpose and effect contravenes the Constitution. He supported this argument by referring to, among other decisions, Kenya Human Rights Commission v Attorney General & another [2018] eKLR; Olum & another v Attorney General [2002] 2 EA 508; Queen v Big M Drug Mart Ltd, 1986 LRC (Const) 332; and Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others[2012] eKLR.

18. The petitioner submits that sections 8 and 9 of the LR Actand order 53 rule 1 of the CPRrequire that leave be sought and obtained before an application is made for judicial review orders. He concedes that the purpose of leave is to shield the courts from frivolous applications, which prima facie appear to be the abuse of the court process, and proceeds to cite, among other cases, Justice Joyce Khaminwa v Judicial Service Commission & another [2014] eKLR; Mirugi Kariuki v Attorney General [1990-1994] EA 156; andRepublic v Communications Commission of Kenya & 2 others Ex-parte East Africa Television Network Ltd [2001] KLR 82 as affirming the purpose of leave.

19. The petitioner, however, contends that the impugned provisions of the LR Act and the CPR are inconsistent with the Constitution and dictatorial in nature. Further, that the provisions contravene article 23(3) which authorizes courts to grant appropriate relief, including an order for judicial review.

20. The petitioner asserts that the prerequisite for leave in judicial review proceedings before the filing of the substantive notice of motion violates the right to access justice under article 48 of the Constitution. It is his case that parties waste a lot of time in prosecuting applications for leave resulting in case backlog which violates article 159(2)(b) which provides that justice shall not be delayed.

21. It is therefore the petitioner’s contention that these laws which are founded on common law procedures should be interrogated on their validity and relevance. In his opinion, the laws should be replaced with modern day practices as required in advanced constitutional democracies and in compliance with article 47 and theFAA Act.

22. The petitioner concludes his submissions by urging that the High Court’s Judicial Review Division should be allowed to exercise discretion without the requirement for leave before a person can seek judicial review orders. This court is urged to be guided by article 259 in examining the constitutionality of the impugned provisions.

23. The respondent filed written submissions dated July 15, 2019. As to whether sections 8 and 9 of the LR Act should be declared unconstitutional, it was submitted that the Petitioner had failed to discharge the burden of proving that the challenged provisions are unconstitutional. Counsel supported this argument by relying on the case of County Council Governors v Attorney General & another[2017] eKLR.

24. The respondent contends that the petitioner did not fault the procedure that led to the enactment of the impugned provisions and had therefore not met the threshold for the issuance of the orders sought.

25. Counsel urged this court to consider the purpose and effect of the challenged provisions since the object of any legislation is realized through the impact produced by its operation and application. He further submitted that an Act’s validity is drawn from its intended and achieved effects. Counsel stated that the application for leave prior to the commencement of judicial review proceedings enables the court to determine whether there is a substantive issue to be considered.

26. The respondent proceeded to assert that the petitioner had not shown how sections 8 and 9 of the LR Act are ambiguous and the legislative intent not clear. It is the Respondent’s case therefore the Petitioner has failed to ascertain ambiguity which is essential in determining the constitutionality of a statute. Once again reliance was placed on the decision in Council of County Governors v Inspector General of National Police Service & 3 others [2015] eKLR.

27. Counsel for the respondent opined that the purpose of the leave stage is to weed out ill-founded judicial review applications as they exacerbate delays within the judicial system thereby slowing the progress of well-founded cases. It is the Respondent’s case that contrary to the petitioner’s averment that the application for leave creates case backlog, it actually aids expeditious disposal of matters by helping the court to weed out frivolous suits by busy bodies. Reliance is placed on the decision in Republic v County Council of Kwale & another ex-parte Kondo & 57 others, Mombasa HCMCA No 384 of 1996 in support of this argument.

28. The petitioner’s claim that the disposal of applications for leave result in the delay of resolution of judicial review proceedings was rejected by the respondent on the ground that the petitioner is misinformed of what happens during the leave stage. Counsel stated that an application for leave to commence judicial review proceedings is made ex-parte and the court in its discretion decides whether there is an arguable case. He states that the court at this stage is not required to delve into the substantive issues since these are reserved for inter partes hearing. Reliance is placed on the decision in Republic v Land Disputes Tribunal Court Central Division & another ex-parte Nzioka[2006] 1 EA 321 in support of the proposition that the leave stage is a critical tool in preventing backlog of cases.

29. In response to the petitioner’s assertion that the need for leave amounts to a procedural technicality, counsel for the respondent submits that the impugned provisions do not offend article 159(2)(d) of the Constitution. It is the respondent’s case that the leave stage is a safeguard to the interests of the public and assists the court to sieve frivolous and unmerited applications for judicial review therefore preventing abuse of the court process.

30. It is additionally urged that procedural rules should not be abandoned in totality as they aid the process of justice and prevents a state of anarchy, which would lead to miscarriage of justice. The role of procedural rules in the delivery of justice is supported by the decisions in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others[2016] eKLR; Zachary Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR; and Seth Ambusini Panyako v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR.

31. In conclusion, counsel for the respondent urged the court to apply the doctrine of presumption of constitutionality of statutes and find that the impugned provisions safeguard the interest of the public and do not infringe upon the rights of the citizens hence meeting and satisfying the constitutional test.

32. The Law Society of Kenya (LSK) filed written submissions dated August 9, 2019. The LSK commenced by affirming the legal foundation of judicial review in article 23(3) of the Constitution and part 3 of the FAA Act. It was submitted that the role of the court in judicial review before and after the promulgation of the current Constitution is premised not on the merits of the decision of the administrative body or tribunal but the decision-making process. This statement was supported by the decision in Republic v Attorney General & 4 others ex-parte Diamond Hasham & Ahmed Haham Lalji[2014] eKLR.

33. The LSK analyzed the importance of leave in judicial review proceedings and noted that leave is crucial in identifying and filtering out trivial and unmerited claims at the initial stage. Counsel referred to the decision in Justus Ongera v Director of Public Prosecutions & Ethics and Anti-Corruption Commission [2018] eKLR as holding that leave is still a necessity. According to counsel, despite the requirement for leave, courts have been dispensing justice without any inhibitions.

34. The amicus curiae noted that the FAA Act has expanded the grounds for judicial review under section 7(2) and reliefs undersection 11(1) & (2). Counsel, however, conceded that the Actis silent on the requirement for leave before commencement of proceedings thereunder.

35. According to the LSK, the Constitution, both in words and spirit, intends that there be orderliness in judicial proceedings hence provision of rules to,inter alia, guide the enforcement of the Bill of Rights under article 22 of the Constitution. Reference was also made to section 7(1) of the Sixth Schedule to the Constitution. Further reliance was placed on the cases of Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 6 others, Nairobi Civil Appeal (Application) No 228 of 2013; Grace Njeri Mbugua v Hannah Wanjiku Thong’ote [2019] eKLR; and Mwangi Kimote v Murata Sacco Society[2018] eKLR on the importance of rules of procedure.

36. Relying on several decided cases, as well as various statutory provisions, the amicus curiae urged the court to dismiss the petition submitting that this court should be guided by the principle of presumption of constitutionality of all legislation and the failure by the petitioner to discharge the burden of proving that the impugned provisions are unconstitutional.

37. From the pleadings and submissions filed by the parties it is apparent that the only issue for the determination of this court is whether sections 8 and 9 of the LR Act and rule 1 of order 53 of the CPRshould be declared unconstitutional. A deeper review of the Petitioner’s case shows that he only questions the constitutionality of the requirement of leave prior to the commencement of judicial review proceedings.

38. It is necessary to observe from the outset that in seeking to have sections 8 and 9 of the LR Act declared unconstitutional, the Petitioner has surreptitiously struck at the heart of the common law judicial review as practiced in our jurisdiction. It goes without saying that sections 8 and 9 of the LR Act mandates the High Court to grant judicial review orders and without those provisions the traditional or common law judicial review cannot exist. Order 53 of the CPRprovides the procedure for seeking judicial review orders and if sections 8 and 9 of the LR Act are declared unconstitutional, the entire order, and not rule 1 alone, collapses as the order will no longer be hinged on any statutory provision.

39. In answering the question as to whether the impugned provisions are unconstitutional, the court is required to read the provisions against the articles of the Constitution alleged to be violated by those laws. It is accordingly vital to bear in mind the relevant guiding principles of interpretation of constitutional and statutory provisions.

40. Article 259 of the Constitution requires this court to interpret the Constitution in a manner that promotes its purposes, values and principles; advances the rule of law, human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance.

41. This court is also bound by the relevant principles for exercising judicial authority as espoused in article 159(2) as follows:(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)….(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.

42. The cited constitutional principles lead to the inevitable conclusion that the spirit of the Constitution should preside and permeate the exercise of judicial authority.

43. It is now a well-established principle of law that the Constitution must be interpreted broadly, liberally and purposely. The Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR highlighted the principles for constitutional interpretation as follows:“a.that as provided by article 259 the Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance.b.that the spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.c.that the Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.”d.that the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”

44. The Supreme Court has since its inception observed that the principles and values of the Constitution must be given meaning. Thus in The Matter of the Principle of Gender Representation In the National Assembly and the Senate, SC Advisory Opinion No 2 of 2012 the Court opined that:“A consideration of different constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and interact among themselves and with their public institutions. Where a Constitution takes such a fused form in terms, we believe acourt of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other.”

45. A number of principles have been established to assist courts in determining the constitutionality of an Act of Parliament or its provisions. The first principle is the general presumption that Acts of Parliament are enacted in conformity with the Constitution. This principle of interpretation was affirmed by the Court of Appeal of Tanzania in the case of Ndyanabo v Attorney General [2001] EA 495 as follows:“It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative…there is a presumption of constitutionality of a legislation, save where a clawback or exclusion clause is relied upon as a basis for constitutionality of the legislation, the onus is upon those who challenge the constitutionality of the legislation; they have to rebut the presumption.”

46. In the case of Isaac Robert Murambi v Attorney General & 3 others[2017] eKLR, I highlighted a number of principles that are considered in determining the constitutionality of statutory instruments as follows:“The first principle in determining the constitutionality of a statute or a provision thereof is the general presumption that Acts of Parliament are enacted in conformity with the Constitution-see Ndyanabo and Alex Kyalo Mutuku. The second principle is that the onus of proving that a law is unconstitutional lies with the person saying so. The duty of the court then is to juxtapose the statute or its impugned provisions with the provisions of the Constitution… Thirdly, the court must also be guided by the cardinal rule that a statute should be construed according to the intention expressed in the statute itself-see Halsbury’s Laws of England, 4th ed Vol 44(1) para 1372b…The fourth principle is that the Constitution should be given a purposive and liberal interpretation-see Anthony Njenga Mbuthi v Attorney General & 3 others [2015] eKLR.”

47. Further, in the case of Council of County Governors v Attorney General & another [2017] eKLR, which has extensively been relied on by the parties herein, another important principle in the interpretation of statutes is highlighted as follows:“A law which violates the Constitution is void. In such cases, the court has to examine as to what factors the court should weigh while determining the constitutionality of a statute. The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law is challenged on grounds that it infringes the Constitution, what the court has to consider is the “direct and inevitable effect” of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration is the object and reasons as well as legislative history of the statute. This would help the court in arriving at a more objective and justifiable approach.Thus, the history behind the enactment in question should be borne in mind. Thus any interpretation of these provisions should bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that sovereign power is only delegated to the institutions which exercise it and that the said institutions which include Parliament, the national executive and executive structures in the county governments, and the judiciary must exercise this power only in accordance with the Constitution.”

48. Among the impugned provisions in this case is section 8 of theLR Actwhich states as follows:8. (1)The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.(2)In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.(3)No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.(4)In any written law, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order, and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order.(5)Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.

49. The other provision of the LR Act under attack in this petition is section 9 which provides that:9. (1)Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court—(a)prescribing the procedure and the fees payable on documents filed or issued in cases where an order of mandamus, prohibition or certiorari is sought;(b)requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order;(c)requiring that, where leave is obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made.(2)Subject to the provisions of sub section (3), rules made under sub section (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.(3)In the case of an application for an order of certiorarito remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

50. The petitioner also specifically seeks to outlaw rule 1 of order 53 of the CPR which states that:[Order 53, rule 1. ] Applications for mandamus, prohibition and certiorari to be made only with leave.1. (1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.(3)The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.4)The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave.Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.

51. Considering that the impugned provisions were in force prior to the promulgation of the current Constitution, it is important to observe that section 7(1) of the sixth schedule (Transitional and Consequential Provisions) of the Constitution is applicable. The Section states:All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

52. It is the petitioner’s central argument that the requirement of leave prior to the commencement of judicial review proceedings should be done away with. He contends that the impugned provisions are inconsistent and irrelevant in light of the new constitutional dispensation. The petitioner further submits that the common law procedure for the requirement of leave be replaced with constitutional standards.

53. On the other hand, the respondent asserts that the requirement for leave is necessary and vital not only for filtering out ill-founded applications but also in averting uncertainty over administrative actions. It is additionally the respondent’s case that rules of procedure are critical in the administration of justice.

54. In inquiring into whether a statute or some of its provisions are unconstitutional, the court is required to consider the object and purpose of the impugned law in an effort to discern the intention of the lawmaker. The court is also required to determine the effect of the legislation on constitutional provisions. In respect of a law that was in force before the promulgation of the Constitution, the court is required to closely look into the provisions so as to ensure that they comply with the constitutional principles and values.

55. Order 53 rule 1 of the CPRplaces the burden on an applicant of demonstrating that the decision made by the administrative body is illegal, unfair and irrational hence establishing a prima facie case. If the court is not persuaded that the applicant has an arguable case, leave will be denied and the matter will end there.

56. The common law judicial review focuses on the process leading to the making of an impugned decision. The court is not concerned about the substance of the impugned decision for that is normally left for the review or appellate processes. Support for this statement is found in a plethora of decisions. For instance, the Court of Appeal in Municipal Council of Mombasa v Republic & another[2002] eKLR held that:“…judicial review is concerned with the decision-making process, not with the merits of the decision itself…the court would not be concerned with the issue of whether the increases in the fees and charges were or were not justified. The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, ie the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”

57. It is common ground that the grant of leave is an exercise in judicial discretion. An application for leave ordinarily ought to be heard ex-parte but according to the proviso to rule 1 of order 53 of the CPR, the judge hearing the matter has the discretion to direct that the application be heard inter partes. The reasons underlying the need for leave were well-explained in Republic v County Council of Kwale & another Ex-parte Kondo & 57 others, Mombasa HCMCA No 384 of 1996, as cited in Republic v Ethics and Anti-Corruption Commission & another; Mike Mbuvi Sonko & another (Interested Parties) Ex parte Paul Ndonye Musyimi [2020] eKLR, as follows:“the purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for Judicial Review which are frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for Judicial review of it were actually pending even though misconceived.”

58. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that:“The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion…The appellants invoked the judicial review jurisdiction rather that the constitutional jurisdiction to question the exercise of the discretion by the Attorney General. In deciding whether or not to grant leave the learned Judge was entitled to consider, as he did, whether the grounds of challenge were within the narrow scope of judicial review…The test to be applied in deciding whether or not to grant leave is whether the applicant has an arguable case.”

59. The court upon hearing an application for leave will determine whether there exists an arguable case and will proceed to dismiss the case where an arguable case has not been established. It is undeniable that leave has been established in law and practice as a necessity for smooth administration of justice. The necessity of rules of procedure in judicial review proceedings is to ensure the court process is not abused by busybodies filing frivolous suits thus impeding instead of enhancing access to justice.

60. It is, nevertheless, important to acknowledge the developing jurisprudence concerning the role of judicial review in the current constitutional dispensation. I start with the case of Peter Muchai Muhura v Teachers Service Commission [2015] eKLR where it was held that:“Thus, under the cited provisions, it is possible for a litigant to apply for and pray for both compensatory relief and orders of judicial review in the same pleading. Thus in judicial review proceedings under the current constitutional dispensation, other substantive remedies as provided for in the Constitution are available under the same proceedings and the court in such proceedings, which appears to have been the case in the said Judicial Review Application No 53 of 2010, is entitled to delve into both procedural and substantive or merit issues. It is the opinion of this court that the barriers or ridge or valley between judicial review proceedings and the ordinary actions as they were has been collapsed by the Constitution of Kenya, 2010. The Constitution has opened avenues to access to justice and all stipulated remedies in the same proceedings; ordinary action or prescribed application. Thus, litigants need not file separate processes to access the different available remedies. It is true that universal procedural rules have not yet fully evolved in our judicial system to keep pace with the constitutional liberation of litigants; a legitimate and urgent project towards full realization of the constitutional principles in article 159 that justice shall not be delayed; justice shall be administered without undue regard to procedural technicalities; and the purpose and principles of the Constitution shall be protected and promoted.”

61. Similarly, in Kenya Human Rights Commission v Non-governmental Organisations Co-ordination Board [2016] eKLR it was held that:“It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.”

62. At this juncture I find it of essence to briefly look at the history of judicial review in our jurisdiction. Judicial review in Kenya originated as a common law remedy for checking administrative action. The practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom as can be clearly seen from the impugned provisions of the LR Act. Prior to the promulgation of the current Constitution, the judicial review jurisdiction of the Kenyan courts was firmly grounded on the provisions of sections 8 and 9 of the LR Act with the procedural aspects provided in order 53 of the CPR. Judicial review mandated the High Court to superintend the actions of the executive arm of government through the writs of certiorari, prohibition and mandamus.

63. Upon promulgation of the current Constitution in 2010, judicial review attained constitutional underpinning under article 47, with judicial review remedies being accorded constitutional status by article 23. In regard to judicial review Constitution therefore achieved two objectives: it entrenched judicial review in the Constitution under article 47 and expressly provided under article 23 that an order of judicial review is one of the remedies for correcting constitutional violations. That the power of judicial review is now founded on the Constitution was indeed confirmed by the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR thus:“However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the court and have their grievance resolved on the basis of articles 22 and 23 of the Constitution…The famous United States Supreme Court case ofMarbury v Madison 5 US 137 (1803) established the principle of the possibility of judicial review of legislation, and at the same time the key place of the courts in the upholding of the US Constitution. This principle is enshrined in our Constitution(articles 23(3)(d) and 165(3)(d)). A close examination of these provisions shows that our Constitutionrequires us to go even further than the US Supreme Court did in Marbury v Madison(Marbury). In Marbury, the US Supreme Court declared its power to review the constitutionality of laws passed by Congress. By contrast, the power of judicial review in Kenya is found in the Constitution.”

64. Similarly, in the South African case of Pharmaceutical Manufacturers Association of South Africa and another: In re ex parte President of the Republic of South Africa & others (CCT 31/99/) [2000] ZACC 1 it was held that:“The control of public power by the courts through judicial review is and always has been a constitutional matter. Prior to the adoption of the interim Constitution this control was exercised by the courts through the application of common law constitutional principles. Since the adoption of the interim Constitution such control has been regulated by the Constitutionwhich contains express provisions dealing with these matters. The common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution, and in so far as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts.”

65. It is noted that in our jurisdiction, the co-existence of common law prerogative writs and constitutional judicial review remedies has created an inconclusive piece of jurisprudence and a perception of conflict on the question of the applicable law. For instance, in Masai Mara (SOPA) Limited v Narok County GovernmentNairobi High Court Petition Number 336 of 2015 it was held that:“54. On the issue of the application of order 53 of the Civil Procedure Rules to a constitutional petition where a party seeks judicial review reliefs, I must hasten to point out that since the promulgation of the Constitution in 2010, administrative law actions and remedies were also subsumed in the Constitution. This can be seen in the eyes of article 47 which forms part of the Bill of Rights. It is safe to state that there is now substantive constitutional judicial review when one reads article 47 as to the right to fair administrative action alongside article 23(3) which confers jurisdiction, on the court hearing an application for redress of a denial or violation of a right or freedom in the Bill of rights, to grant by way of relief an order for judicial review.55. Order 53 of the Civil Procedure Rules do not consequently apply to Constitutional Petitions where the court is expected to exercise a special jurisdiction which emanates from the Constitution and not a statute.56. I consequently decline to accede to the respondent’s contention that the Petitioner ought to be denied the reliefs sought on the basis that the Petition was filed more than six months after the action complained of took place.”

66. In the cited decision, the tension between the common law judicial review and the judicial review founded on the Constitution is apparent. The application of the rules of order 53 of the CPRto judicial review applications brought under sections 8 and 9 of the LR Act and the non-application of the rules to judicial review applications premised on the Constitution has resulted in what appears to be a two-track judicial review process; one under common law and another under the Constitution. Prof Gathii is quoted by the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR warning of the perils of such a trajectory. This is how the court captured Prof Gathii’s fear:“(361)The eminent Kenyan Professor James Thuo Gathii in “The Incomplete Transformation of Judicial Review,” A Paper presented at the Annual Judges’ Conference 2014: Judicial Review in Transformative Constitutions: The Case of the Kenya Constitution, 2010, Safari Park Hotel, August 19, 2014 warns that:“The Kenyan judiciary must guard against the development of a two-tracked system of judicial review. One that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles of judicial review [on the other]. Those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.”

67. It appears that the fear of Prof Gathii was not unfounded. A look at some decided cases disclose an incoherent narrative on the state of judicial review at the moment. A reading of some of the judgements seems to give credence to the Prof. Gathii’s fear of the development of a two-tracked system of judicial review.

68. In Joshua Sembei Mutua v Attorney General & 2 others [2019] eKLR it was held that:“The secondary issue relating to the parameters applicable in considering JR applications is not really contentious. The High Court and all counsel appearing before it alike, as well as counsel who made submissions before us, are agreed on the traditional common law view exemplified in such cases as the Municipal Council of Mombasa case (supra) that Judicial Review is concerned with the decision making process, not with the merits of the decision itself. They were also conscious of the older cases like Pastoli vs. Kabale District Local Government Council andothers[2008] 2 EA 300 which focused on the three ‘Is’ of ‘illegality, irrationality and procedural impropriety’ in considering the decision making process.What they did not discuss was the decision of this court in the case of Child Welfare Society of Kenya v Republic & 2 others ex-parte Child in Family Focus Kenya[2017] eKLR made on November 17, 2017 which extensively examined numerous decisions recording the significant evolution of JR over time to meet the changing conditions and demands affecting administrative decisions. The court concluded that JR can no longer be confined to the traditional common law approach as it had been elevated to a constitutional level. It followed the Supreme Court in the case of Communication Commission of Kenya v Royal Media Services & 5 others [2014] eKLR which held that "... the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law." and that "... the power of judicial review in Kenya is found in the Constitution, as opposed to the principle of the possibility of judicial review of legislation established in Marbury v Madison5 US 137 (1803)." The court in the Child Welfare Society case then concluded as follows:“This court, as recently as 20th July, 2017, in the case of Independent Electoral and Boundaries Commission (IEBC) vs National Super Alliance (NASA) Kenya & 6 others [2017] eKLR was in no doubt about the current place of JR in our system of governance. After extensively reviewing the CCK Supreme Court decision (supra) and other cases, including Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 others(2016) eKLR 51, and Pharmaceutical Manufacturers Association of South Africa in re ex-parte President of the Republic of South Africa & others 2000 (2) SA 674 (CC) at 33, the five-Judge bench held:“In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both..... We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches."[Emphasis added].That is still the current view we hold on the parameters of JR applications.”

69. Earlier in Child Welfare Society of Kenya v Republic & 2 others ex-parte Child in Family Focus Kenya [2017] eKLR, it was observed that:“39. For a long time in the history of the common law, JR has been tried and tested as the most efficacious remedy for control of administrative decisions. It was not concerned with private rights or the merits of the decision being challenged but with the decision making process. See Commissioner of Lands v Kunste Hotel Limited[1997] eKLR and R v Secretary of State for Education and Science ex-parte Avon County Council [1991] 1 All ER 282. It was also principally concerned with the 3 ‘Is’ --- "Illegality, Irrationality and (procedural) Impropriety" --- and many are the decisions which followed such narrow considerations…40. However, the dynamism of society and the events of recent history have decidedly thrust JR into a whole new trajectory…42. The bells for expansion of the scope of JR rang even louder after the promulgation of the Constitution 2010…44. Finally, as we settle the principles upon which we shall consider the matter before us, this court, as recently as July 20, 2017, in the case of Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others[2017] eKLR was in no doubt about the current place of JR in our system of governance. After extensively reviewing the CCK Supreme Court decision (supra) and other cases, including Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others(2016) eKLR 51, and Pharmaceutical Manufacturers Association of South Africa in re ex-parte President of the Republic of South Africa & others 2000 (2) SA 674 (CC) at 33, the five-Judge bench held:“In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both..... We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches."”

70. Although the court talks of one system for judicial review it states that a party can choose the common law order 53 or constitutional and statutory review procedure. Such a situation leaves the litigants in confusion as to the procedure to be adopted in seeking to review administrative action. Although the superior courts have been consistent that the traditional judicial review has now been fused with the constitutional and statutory review, there is still confusion as to the procedure to be used in approaching the courts.

71. In my humble view the purpose of judicial review remains the same notwithstanding the procedure. That purpose was captured by Supreme Court in Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy[2014] eKLR thus:“(161)Whencourts conduct judicial review, they are in essence ensuring that the decisions made by the relevant bodies are lawful. Consequently, should they find that the decision made is unlawful,courts can set aside that decision. Judicial review, therefore, can be said to safeguard the rule of law, and individual rights; and ensures that decision makers are not above the law, but have taken responsibility for making lawful decisions, in the knowledge that they are reviewable.”It is necessary to have a common procedure for attaining that purpose.

72. The nature of our Constitutionimplies that all legal principles, including those applicable to judicial review, derive legitimacy from the Constitution and are therefore subject to the constitutional standard. Any conflict between the common law and the Constitution on judicial review must be resolved in favour of what the Constitution states. In the case of Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy [2014] eKLR the Supreme Court cautioned that:“[206] This court has set out construction guidelines, and mainstreamed the interpretation of Kenya’s new Constitution. In particular, we have observed that the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases, can subvert requisite approaches to the interpretation of the Constitution.”

73. Kwasi Prempeh in Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, Tulane Law Review, Vol 80, No 4, 2006 at page 72 foretells of a problem with the application of the common law as the default rule and norm for framing and analyzing of constitutional questions. He opines that the common law, in its method, substance, and philosophical underpinnings carries with it elements and tendencies that do not accord with the transformative vision reflected in modern-day bills of rights.

74. Even though this petition is in respect of laws establishing the common law judicial review in Kenya, the FAA Act which came into force in 2015 should be brought into focus as it gives effect to article 47 of the Constitution. This statute has radically altered the judicial review landscape in Kenya and brought the practice of judicial review in conformity with the Constitution. The Actrecaptures and expands the common law grounds of judicial review.

75. In my view, although the FAA Act does not allude to sections 8 and 9 of the LR Act and order 53 of the CPR, it by implication supplants the provisions of the LR Act and order 53 of the CPRand firmly places judicial review under the FAA Act. The Act, nevertheless, appreciates the importance of common law in judicial review claims by providing at section 12 that the Actis in addition to and not in derogation from the general principles of common law and the rules of natural justice. Therefore, even as we transit to the judicial review under the FAA Act, the common law principles that have been established through a long line of authorities will continue guiding the courts in determining applications for orders of judicial review. Relevant decisions from other jurisdictions will also continue to be applicable.

76. A perusal of the FAA Act clearly shows that Parliament intended to substitute the judicial review under the common law with statutory judicial review and this explains why Part III (sections 7 to 11) of the Actis clearly titled “Judicial Review”. One cannot therefore understand why Parliament did not go to the whole hog by repealing sections 8 and 9 of the LR Act. The failure to repeal the impugned provisions of the LR Act has led to the continuing confusion as regards the procedure for institution of judicial review proceedings. It is noted that rules have not been made as provided by section 10(2) and regulations have also not been enacted under section 13 of the FAA Act even though the law is already operational. Lack of procedural rules force applicants to resort either to order 53 of the CPRor constitutional petitions when seeking orders of judicial review.

77. It is observed that theFAA Act does not make any reference to the requirement for leave before commencement of judicial review proceedings and in fact disdains undue regard to procedural technicalities in judicial review applications by providing at section 10(1) that:“An application for judicial review shall be heard and determined without undue regard to procedural technicalities.”

78. Interestingly, although the LR Act was undisputedly the substantive basis for judicial review of administrative actions in Kenya as at the time of enactment of theFAA Act, it was not mentioned by name at all in the transitional and consequential provisions. One is, however, left wondering about the place of the impugned provisions in the legal practice going forward.

79. Section 14 of the FAA Act provides for transition as follows:14. Transition provisions.(1)In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.(2)Despite subsection (1)-(a)if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and(b)in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.

80. The procedural rules in order 53 of the CPRgoverned judicial review prior the promulgation of the Constitution and are still in force as they have not been repealed. There, however, would appear to be a clear intention to repeal and replace these rules and their originating law being sections 8 and 9 of the LR Act. The clear objective of the FAA Act under section 10(2) is to have a regime of rules made by the Chief Justice governing judicial review of administrative action. The section provides:The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.

81. It is my view therefore that the petitioner may be flogging a dead horse. The FAA Act appears to have created a new legal regime for review of administrative action. This regime is more aligned to articles 23 and 47 of the Constitution and should be the sole foundation of judicial review in this country.

82. Nevertheless, owing to the lack of clarity as to whether the impugned provisions have been repealed, and considering that I was not asked to make a finding as to whether they are still operational, I must determine the issue placed before the court by the petitioner.

83. Article 2(1) provides for the supremacy of the Constitution. This provision is closely followed by article 2(4) which declares void any law that is inconsistent with the Constitution to the extent of the inconsistency. It therefore follows that every Act of Parliament and regulations or rules made thereunder must pass the test of constitutionality.

84. Prior to the promulgation of the current Constitutionin 2010, sections 8 and 9 of theLR Actand order 53 CPRprovided the legal basis for judicial review of administrative action based on the common law. It is undeniable that the requirement for leave in the impugned provisions as a prerequisite for the application of orders of judicial review has been a critical tool in the administration of justice.

85. As already stated, all law must conform to the provisions of the Constitution and it therefore follows that the provisions of sections 8 and 9 of the LR Act and order 53 CPRmust conform to the Constitution or be construed with such adaptations, alterations and modifications so as to conform with the Constitution. As was observed by the Constitutional Court of South Africa in Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re: Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others[2000] ZACC 12, “all statutes must be interpreted through the prism of the Bill of Rights.”

86. The petitioner is indeed correct that the Constitution guarantees access to justice under article 48. Under article 22 the Constitution also grants standing to institute proceedings to any person or group of persons acting on behalf of other persons, in their own interests or in the public interest. Courts are empowered to develop statutes to conform to the Constitution and are only bound by the letter and spirit of the Constitution in interpreting and applying statutory provisions.

87. As already discussed, the Constitution outlines and expresses the values, principles and objectives desired by the people of Kenya. These principles and values engendered by the Constitution should thus infuse and moderate the common law principles on judicial review.

88. The South African Constitutional Court in Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22 held that section 39(2) of the Constitution of South Africa, which is almost similar to article 20(3) of our Constitution, mandates fundamental constitutional values to influence common law. The consequence is that the Constitution must remain the sole standard guiding the application of statutory or common law rules in settlement of disputes. As a result, common law rules in judicial review that fall short of the purport, tenor and spirit of the Constitution ought to be developed so as to meet the constitutional standard.

89. Retired Chief Justice Dr Willy Mutunga in Human Rights States and Societies: A Reflection From Kenya. The Transnational Human Rights Review 2 (2015): 63-102 opined that the “Bill of Rights and the Constitution should be used as the touchstone of legal appropriateness” and “if an existing rule of common law does not adequately comply with the Bill of Rights, the court has the obligation to develop that rule to make it compliant.”

90. The petition before this court though drafted as an attack on sections 8 and 9 of the LR Act is essentially a challenge on the requirement for leave prior to the commencement of judicial review proceedings. This is the narrow question that I am required to answer. In answering this question, I find that the petitioner has not put forward any convincing argument that the need for leave before commencement of judicial review proceedings violates articles 22, 23, 48 and 59(c) & (d) being the provisions of the Constitution upon which his petition is premised. The requirement for leave does not impede access to justice as the decision whether or not to grant leave is at the discretion of the judge, who must nevertheless exercise the discretion judiciously. In any case, denial of leave can be appealed-see Mirugi Kariuki v Attorney General[1992] eKLR.

91. It is also noted that the necessity for leave before commencement of legal proceedings is a requirement in various areas of legal practice. For instance, there is need for leave before one can appeal certain decisions under the Civil Procedure Rules, 2010. The need for leave by itself cannot therefore be said to be unconstitutional. Fortunately, the petitioner need not seek leave to commence judicial review proceedings under the FAA Act.

92. The courts have over the years established that for a party to prove violation of rights under the provisions of the Bill of Rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement, and the injury suffered.

93. The requirement to discharge the burden of proof has been stated in many decisions including Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] SGCA 47 where it was held that:“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

94. The petitioner pointed out the constitutional provisions allegedly violated by the impugned provisions without tendering evidence of how the requirement for leave before the commencement of judicial review proceedings violates those provisions. He did not state how the necessity for leave negatively affects the right to access justice under article 48. His claim that the need for leave before applying for judicial review orders contravenes article 159(3)(c) & (d) which requires justice to be done without delay and undue regard to technicalities does not accord with the decisions of the superior courts of this country to the effect that procedural rules are necessary for the delivery of justice. I therefore find no merit in this petition and I dismiss it.

95. This petition, however, has demonstrated the need to formally do away with sections 8 and 9 of the LR Actand order 53 CPR. In my view, sections 8 and 9 of the LR Actand order 53 of the CPRno longer serve any purpose as the FAA Act has aligned judicial review of administrative action with the Constitution.

96. What is now required is for the Chief Justice to make rules under section 10(2) of theFAA Act and the Cabinet Secretary for the time being responsible for the administration of justice, in consultation with the Commission on Administrative Justice, to make regulations under section 13(1) of the Act. The National Assembly may also need to formally repeal sections 8 and 9 of the LR Act so that the FAA Act becomes the only law upon which applications for orders of judicial review are anchored.

97. Nevertheless, as I have already stated, sections 8 and 9 of the LR Actand order 53 of the CPRhave been rendered otiose and their continued retention in our statute books will only serve to promote the wrong notion that Kenya has a two-tracked system for seeking judicial review against administrative action.

98. On the issue of costs, I find that even though the petitioner has not succeeded in getting what he asked for from this court, his petition has provided a platform for the court to discuss and offer solutions in respect of an important area of legal practice. The petition has illuminated the confusion prevailing in the arena of judicial review litigation and the need for harmonization of the applicable laws and rules. In the circumstances the petitioner should not be penalized with costs. The appropriate order is to ask the parties to meet their own costs of the proceedings, which I hereby do.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF MAY, 2021. W. KORIR,JUDGE OF THE HIGH COURT