Sheria Mtaani Na Shadrack Wambui v Judicial Service Commission & 4 others (Judicial Review Application E037 of 2026) [2026] KEHC 6589 (KLR) (Judicial Review) (14 May 2026) (Judgment)

Sheria Mtaani Na Shadrack Wambui v Judicial Service Commission & 4 others (Judicial Review Application E037 of 2026) [2026] KEHC 6589 (KLR) (Judicial Review) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6589 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review Application E037 of 2026 TW Ouya, J May 14, 2026 Between Sheria Mtaani Na Shadrack Wambui Applicant and Judicial Service Commission Respondent and Kenya Magistrates and Judges Association 1st Interested Party The Law Society Of Kenya 2nd Interested Party National Council On The Administration Of Justice 3rd Interested Party National Council For Persons With Disabilities 4th Interested Party Judgment 1.The Applicant moved this honourable court vide an Originating Motion dated 16th February 2026 seeking the following relief THAT:i.This Application be and is hereby certified as extremely urgent and sufficient to be heard on priority basis and service be dispensed with, in the first instance.ii.Pending the hearing and determination of this Application, an order of MANDAMUS does issue compelling the Respondent herein to fast-track the installation of ramps, lifts, handrails, guiding rails and lavatory facilities for persons living with disabilities, within Milimani Law Courts, Nairobi.iii.A declaration be and is hereby made that the rights of persons living with disabilities to access justice at Milimani Law Courts open court and other physical court facilities have been infringed upon and ought to be adequately and progressively met and realized.iv.Progressively, the Respondent and the Interested Parties herein, be and are hereby compelled to oversee the implementation of the installation of the necessary amenities, to wit; ramps, lifts, handrails, guiding rails and lavatory facilities, to and in the best interest of persons living with disabilities, in all open court stations within the Republic of Kenya.v.Any other orders and reliefs that this Honourable Court may deem fit, just and in the best interest of the Persons living with disabilities, to grant, in the circumstances. 2.The Application is premised on the grounds on the face of the Motion and the supporting averments by Mr. Shadrack Wambui, the Chairperson of the Applicant as set out in the Supporting affidavit of 16th February 2026. 3.According to Mr. Wambui, the persons living with disabilities, some of whom are Advocates, litigants and judicial officers are not adequately catered for in respect of their access to justice, especially when and where their matters fall in open court, as there is a huge want for/of amenities sufficient to serve their mobility within the precincts of the Courts. 4.He deposed that access to justice, being an unlimited right to all citizens of the Republic of Kenya, is indirectly and conversely being withheld from the category of persons set out herein by the Applicant, as persons living with disabilities, given the lack of amenable mobility and lavatory facilities specifically curated for their use and utilization within Milimani Law Courts and other open court stations within the Republic of Kenya. 5.It was deponed that no harm will be suffered by either party hereto, and in the converse, the right to access justice will have been instrumentally propagated to the Persons Living with Disabilities' good and benefit, should the orders herein sought be granted. 6.The Applicant deposed that since a complaint was lodged in this respect calling for mechanisms to cater for the said categories of persons, there has there been no response or evidence of progressive efforts towards the easement of realising the said amenities and rights. 7.Finally, he stated that should the prayers sought herein not be granted, the persons living with disability will continue to be prejudiced and their unlimited right to justice curtailed in the very precincts from whence the same rights are to be declared, sought and enforced. 8.The Respondent through its Secretary, Winfridah B. Mokaya, swore a Replying Affidavit on 3rd March 2026. She deponed that the suit was bad for misjoinder as the Respondent has no role in improvement of judiciary infrastructure as that role is vested in the office of the Chief Registrar of the Judiciary. 9.She explained that notwithstanding the misjoinder, the Respondent is deeply cognizant of the rights of Persons with Disabilities (PWDs) under Article 54 of the Constitution. However, the implementation of these rights, particularly those requiring substantial capital investment in historic buildings like the Milimani Law Courts, is subject to the principle of progressive realisation. 10.It was deponed that judicial infrastructure projects are dependent on budgetary appropriations from the National Assembly. The Judiciary Fund, while autonomous, is limited by the overall fiscal allocations provided by the State. 11.According to Hon. Mokaya, the Respondent has demonstrated its commitment to realization of the rights of persons with disabilities under Article 54 of the Constitution by resolving by way of policy that all new court constructions adhere to universal accessibility standards as demonstrated in the Social Transformation through Access to Justice (STAJ) blueprint, which seeks to eliminate barriers to justice for all marginalised groups. 12.Further, it was deposed that the Respondent has operationalised its commitment to inclusion through the STAJ Operational Plan Matrix 2024/2025 – 2026/2027, which establishes a clear roadmap for renovating court stations to be PWD-friendly, with progressive implementation targets increasing from 10% to 40% over the planning horizon. 13.To demonstrate this commitment, it was deposed that despite systemic budget cuts, the Judiciary has completed accessibility ramps at Muranga Law Courts (May 2025) and Butali Law Courts (November 2025). Further, the Judiciary has formally requested an allocation of Kshs. 50 Million in the FY 2026/2027 budget specifically earmarked for the restoration of lifts and the provision of PWD-compliant washrooms at the Milimani Law Courts. 14.The Secretary to the Respondent further deposed that its commitment to inclusivity is evident the adoption and implementation of a comprehensive Disability Mainstreaming Policy which provides a structured framework for Reasonable Accommodation and the creation of an Enabling Environment as envisioned under Article 54 of the Constitution. The policy mandates the development of annual work plans for disability programs to monitor and evaluate progress across all court stations. 15.Finally, it was deposed that the Respondent’s institutional approach proves that the Commission is not neglectful but is actively managing the systemic transition toward universal accessibility within the constraints of available resources. 16.The court directed that the application be canvassed through written submissions. 17.Counsel for the Applicant submitted that the best interests of persons living with disabilities as wholesomely canvassed in the entirety of Article 54 of the Constitution, is such that they ought to be included, without any/ the slightest forms of discrimination, into the society, with acute consideration of their challenges, and how best, in a progressive manner, the amenities facilitating their co-existence, can be implemented. 18.As regards the Respondent’s budgetary constraints, the Applicant submitted that access to justice, ought to be read as an all-encompassing goal by the Respondent and the organs thereof, such that its realization leaves none of the stakeholder thereto, unattended, as is currently the case, with the inaccessibility and the challenges that persons living with disabilities are experiencing when they approach most physical court stations spread across the country, including but not limited to Milimani Law Courts. 19.While conceding that there should be progressive realization of the rights under Article 54 of the Constitution, the Applicant submitted that this honourable court is empowered to issue structural interdicts as was done by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021) (Judgement). 20.Finally, the Application submitted that the Application be allowed as court stations springing throughout the country are not fitted with the requisite amenities for persons with disabilities. 21.The Respondent submitted that pursuant to Article 172 (2) of the Constitution, there is no constitutional or statutory provision that vests infrastructure development, civil engineering, building maintenance or capital works in the Respondent. Instead, the Respondent is a human resource and policy oversight body. It is not a construction authority, an infrastructure manager, or an accounting officer for court buildings. 22.The Respondent argued further that an order of mandamus cannot issue against a body without the relevant legal duty. Relying on Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] e-KLR, the Respondent submitted that Mandamus lies to compel the performance of a legal duty. The essential predicate for the writ is the existence of a clear legal duty in the Respondent and a corresponding right in the applicant to have that duty performed. The Respondent’s constitutional mandate does not extend to the execution of civil works at court buildings. There is therefore no legal duty within the Respondent that can be the subject of a mandamus order. 23.It was submitted that notwithstanding the fact that structural interdicts are an appropriate remedy, the Supreme court in Mitubell case (supra) emphasized that structural interdict orders must be "specific, appropriate, clear, effective, directed at parties with constitutional or statutory mandate" (emphasis added). 24.Citing Article 20 (5) of the Constitution, the Respondent submitted that it had demonstrated that it had taken reasonable measures within its available resources to ensure progressive realization of the rights under Article 54 of the Constitution as demonstrated in the STAJ, the completed works in various court stations and the adoption of the Judiciary Disability Mainstreaming Policy. 25.The Respondent conceded to an order of mandamus being issued directed at the Chief Registrar of the Judiciary requiring the filing of an implementation plan rather than commanding immediate physical works – the latter being unachievable within any interim period given procurement requirements and the forthcoming budget cycle. 26.Nevertheless, the Respondent sought that the Application be dismissed for misjoinder. Analysis and determination: 27.Having considered the Motion, the Affidavits in support and determination are: against and the submissions thereto, the issues that arise fori.Whether the Motion is competent?ii.What are the appropriate reliefs to issue 28.The Applicant has faulted the Respondent for failing to implement a public duty by providing accessible courts and services to persons living with disability. The Respondent on the other hand maintains that the said role is not its mandate as its role is limited to Human Resource functions and does not transcend to matters to deal with infrastructure, building and renovations. 29.Contrary to the Respondent’s assertions, Article 172 (1) vests on the Respondent the mandate to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. I believe that efficient, effective and transparent administration of justice includes the accessibility of courts stations by litigants, advocates, judicial officers among other court users. I am therefore persuaded that the Respondent is properly enjoined as a party to this suit. 30.Article 23(3)(f) the Constitution provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. Article 47(1) of guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In 2015, Parliament, in adherence to article 47 of the Constitution enacted the Fair Administrative Action Act, No 4 of 2014, Laws of Kenya (FAA Act). 31.Also instructive to the application of judicial review, is that article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. 32.The Fair Administrative Actions Act provides the parameters of judicial review to be the power of the court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affects the legal rights or interests of an aggrieved person. The judicial review court examines various aspects of an act, omission or decision including whether the body or authority whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself, it may be found to be perverse, or irrational, or grossly disproportionate to what was required. These parameters are better set out extensively in section 7 thereof. 33.The considerations for judicial review were aptly captured by G V Odunga, J in the case of Republic v Chesang (Ms) Resident Magistrate & 2 others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 others [2017] eKLR where he held as follows:“ 25.However, it is important to remember that Judicial Review is a special supervisory jurisdiction which is different from both (1) ordinary (adversarial) litigation between private parties and (2) an appeal (rehearing) on the merits. The question is not whether the Judge disagrees with what the public body has done, but whether there is some recognisable public law wrong that has been committed. Whereas private law proceedings involve the claimant asserting rights, judicial review represents the claimant invoking supervisory jurisdiction of the court through proceedings brought nominally by the Republic. See R v Traffic Commissioner for North Western Traffic Area ex parte Brake [1996] COD 248. 26.Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid v Secretary of State for Scotland [1999] 2 AC 512.” 34.Mativo J in Republic v Kenyatta University Ex parte Martha Waihuini Ndungu 2019 KEHC11128(KLR) while addressing himself to the role of the court in judicial review stated that:Judicial review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.…An administrative decision is flawed if it is illegal. A decision is illegal if it: -(a)contravenes or exceeds the terms of the power which authorizes the making of the decision;(b)pursues an objective other than that for which the power to make the decision was conferred;(c)is not authorized by any power;(d)contravenes or fails to implement a public duty.…the grant of the orders or Certiorari, Mandamus and Prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial review orders are sought and satisfy itself that there is reasonable basis to justify the orders sought. 35.The Fair Administrative Action Act was enacted to give effect to the right to just administrative action guaranteed under Article 47 Constitution. The Act defines Administrative Action to include the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body, or authority that affects the legal rights or interests of any person to whom such action relates. 36.To be an administrative action, the decision taken must adversely affect rights. Adversely means that the decision must impose a burden or have a negative effect. This includes decisions that; require someone to do something, to tolerate something or not to do something; limit or remove someone’s rights; or decide someone does not have a right to something. 37.Section 7(2) provides for grounds for review of administrative actions which include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. Thus, for the court to review an administrative decision, an applicant must demonstrate the above grounds. In fact, not all of them must be proved. Even prove of one of the above is sufficient to invalidate the decision. 38.The question is whether the alleged failure by the Respondent to take steps towards promoting access to courts by litigants with disabilities amounts to an administrative action that requires intervention of this honourable court through grant of judicial review orders. 39.Article 47 of the Constitution requires that an administrative action must be lawful, reasonable and procedurally fair and that reasons must be given for administrative action that adversely affects rights. 40.While the Applicant has faulted the Respondent for failing to take any structural measures to guarantee access to courts by persons living with disability. There is no evidence that the applicant first sought for information from the Respondent on the status of compliance with the requirements in Article 54 of the Constitution pursuant to Section 9 of the Fair Administrative Actions Act. 41.The Respondent on the other hand, has demonstrated by way of Affidavit evidence, the steps and mechanisms that have been undertaken towards the progressive realization of the rights of persons with disabilities seeking justice within the courts. The specific reference to the infrastructural initiatives undertaken to ensure inclusion of persons with disabilities in Murang’a and Butali law courts have not in any way been challenged by the Applicant. 42.It is trite that the burden of proof rests on a party that seeks to advance the existence of a particular fact in issue. In this case, when the Applicant alleged that the Respondent had not taken any steps to guarantee accessibility to courts by persons with disability, the Respondent provided crucial evidence by way of affidavit of the steps that have been taken to ensure accessibility and inclusion in the administration of justice. The applicant, while admitting that there is need for progressive realization of the rights under Article 54, did not in any way fault the adequacy of the steps or reasonable measures that the Respondent had taken towards ensuring accessibility of court premises by persons living with disability. 43.Therefore, the alleged failure by the Respondent does not in any way amount to an administrative action that is capable of being corrected through judicial review. It is difficult to decipher from the pleadings, the exact grievance that the Applicant has against the Respondent that can be corrected through Judicial Review. 44.The Applicant has not only failed to establish the existence of an administrative action but also failed to demonstrate that the alleged failure by the Respondent to put reasonable measures in place for realization of the rights of persons with disabilities is tainted with illegality, impropriety or procedural fairness. 45.Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either(a)the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or(b)a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it. 46.Mandamus is a discretionary remedy which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised based on evidence and sound legal principles. 47.My reading of Section 38 of the Persons Living with Disability Act vests the mandate to advise on, and enforce accessibility, reasonable accommodation, non-discrimination for persons with disabilities and with regard to information, goods, services and the built environment and their participation in society on an equal basis with others, on the National Council for Persons with Disabilities. (emphasis applied). There is no evidence that the Applicant moved the council for redress prior to seeking the intervention of this honourable court. 48.Majanja J (deceased) in Anupa & another v Attorney General & another (Petition 93of2011) 2012 KEHC1081(KLR) (7th November 2012) when faced with a Petition for violation or rights under Article 54 of the Constitution remarked thus:The right of access to justice articulated in article 48 includes infrastructure necessary to ensure justice is available to all persons. It must necessarily entail physical access to courts and the personnel, information, process and procedures that relate to them including access to information about the justice system. Access to justice for all, irrespective of socio-economic status, disability, race or gender is a major hallmark for any democratic society as it is only within such an environment that the rule of law can flourish. In this respect the sentiments of the court in Centre for Human Rights and Democracy and Others v The Judges and Magistrates Vetting Board and Others, Nairobi constitutional Petition 11 of 2012(Unreported) are apposite. The court stated, “As part and core of our constitutional and statutory obligations we have to innovate new methods and devise new strategies for purposes of providing access to justice to all persons who are or were or about to be denied their basic fundamental and human rights.” 49.Even as judicial review has evolved under Article 47, the the Court of Appeal in Kenya National Examination Council vs Republic; Njoroge & 9 others (Ex parte) (Civil Appeal 266 of 1996) [1997] KECA 58 (KLR) (21 March 1997) (Judgment): grounded in settled jurisprudence, classically expounded by nature, scope and limits of the prerogative remedies remain“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.… The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once.These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same.” 50.The applicant has not provided any evidence that the Respondent has refused or neglected to perform a public duty; neither has he demonstrated any reasonable steps that he took to exhaust any remedies before seeking the intervention of this honourable court. Also, the Applicant has not demonstrated that the alleged failure by the Respondent to ensure accessibility of court stations is an administrative action within the meaning of the Fair Administrative Actions Act that is capable of being remedied through a writ of judicial review. 51.Similarly, the declaratory reliefs sought are not available to the Applicant as the Respondent has demonstrated that indeed reasonable measures have already been undertaken towards the progressive realization of the rights of persons with disabilities as espoused under Article 54 of the Constitution. No purpose would be served by issuing the orders against the Respondent at this time. 52.Applying the law to the facts and circumstances of this case, I find and hold that the ex parte applicant has not satisfied any of the conditions for the court to grant the orders of Mandamus. To hold otherwise would in my view be an affront to the basic and elementary principles of law governing the grant of such orders and the exercise of court’s discretion. Based on my analysis, determination and findings herein above, I can only arrive at the irresistible conclusion that the ex parte applicant’s application is fit for dismissal. 53.The upshot is that: The orders sought are hereby declined and the application dated 16th February 2026 is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY, 2026HON. T. W. OUYA, OGWJUDGEIn the presence of:Jeff Kangethe for Danstan Omari and Shadrack – ApplicantOwiti for RespondentKevin/Hamza – Court Assistants