Judicial oscillation in Kenyan courts

The 2010 Constitution of Kenya brought significant changes to the judicial landscape, particularly in how courts approach merit review and process review of administrative decisions. Prior to 2010, courts primarily confined themselves to examining procedural aspects of decision making, showing considerable restraint in scrutinizing the substance of administrative choices. However, the new constitutional framework, particularly Articles 23 (3) (f) and 47, empowered courts to delve deeper into both the procedural and substantive aspects of administrative decisions. This transformation led to inconsistent approaches among judges, creating uncertainty in administrative law jurisprudence. Some judges embraced an expansive interpretation that allowed thorough examination of both merit and process, while others maintained a traditionally conservative stance, focusing primarily on procedural fairness. The judicial back-and-forth between merit and process review has created significant challenges for both legal practitioners and administrative bodies. Courts have struggled to establish clear boundaries between reviewing the substance of decisions and merely examining the decision-making process. In cases like Republic vs. Public Procurement Administrative Review Board & another Ex-Parte Selex Sistemi Integrati and Martin Nyaga Wambora vs. Speaker of the Senate & 6 others, different courts adopted contrasting approaches. Some decisions have ventured into examining the reasonableness and rationality of administrative choices, while others strictly adhered to reviewing only the procedural aspects. This inconsistency has left government agencies, public bodies and private entities uncertain about the extent of judicial scrutiny their decisions might face. The implications of this judicial uncertainty extend beyond the courtroom, affecting governance and administrative efficiency. Public officials have become increasingly cautious in their decision-making, sometimes leading to administrative paralysis... Read More