The Fair Administrative Action Rules, 2024

Legal Notice 165 of 2024

The Fair Administrative Action Rules, 2024

Citation: Legal Notice 165 of 2024
Primary work: Fair Administrative Action
Date: 25 October 2024
Language: English
Type: Legal Notice
Original enactment: Download original enactment (PDF) (203.0 KB)

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LAWS OF KENYA

FAIR ADMINISTRATIVE ACTION ACT

THE FAIR ADMINISTRATIVE ACTION RULES, 2024

LEGAL NOTICE 165 OF 2024

Published in Kenya Gazette Vol. CXXVI—No. 175 on 25 October 2024
Commenced on 11 October 2024

Part I – PRELIMINARY PROVISIONS

1. Citation

These Rules may be cited as the Fair Administrative Action Rules, 2024.

2. Interpretation

In these Rules, unless the context otherwise requires—“application” means an application for judicial review under these Rules; and“Court” includes a tribunal.

3. Object of the Rules

The object of these Rules is to provide for the procedure to facilitate the just and expeditious determination of applications for judicial review under the Act.

4. General power of the Court

Nothing in these Rules shall preclude the court from exercising any power or issuing any orders or directions which may be just and fit in the circumstances.

Part II – JUDICIAL REVIEW APPLICATIONS

5. Notice of intention to sue

(1)Where the applicant seeks to compel the respondent by way of an order to take a particular administrative action or decision, the applicant shall, before filing the Judicial Review application, issue a notice of intention to sue.

(2)The notice in sub-rule (1) shall be in Form JR 1 as set out in the Schedule and be served upon the respondent at least seven days before the date of filing of the judicial review application.

(3)Where the administrative action is required to be undertaken within a period specified under any written law, the applicant shall not issue the notice of intention to sue unless the specified period has elapsed.

6. Period for commencement of proceedings to quash administrative action or decision

(1)An applicant intending to apply for the quashing of an administrative action or decision shall commence judicial review proceedings before a court within six weeks after the date the administrative action was taken.

(2)The court may, on the written application by an applicant, extend the time for lodging a judicial review application where it is proved to its satisfaction that the applicant was prevented, through fraud or misrepresentation, from getting to know of the administrative action or decision or could not, despite exercise of diligence, have known of the administrative action or decision sought to be quashed.

(3)In making a decision under sub-rule (2), the court may consider the period of the delay, the reason for the delay and whether an extension of time may cause substantial hardship or prejudice to the respondent.

7. Limitation on orders of mandamus

Where an applicant has applied to the court to compel an administrator to take an administrative action, the court shall not consider a claim for judicial review based on unreasonable delay unless the court is satisfied that—

(a)the person responsible for the administrative action had a duty to act in relation to the matter in issue but had not taken that action;

(b)the administrative action is required to be undertaken within a period specified under such law and that period has expired;

(c)the administrator has refused, failed, or neglected to take administrative action within the specified period; and

(d)the applicant has issued and served a notice of intention to sue in accordance with rule 5.

8. Place of suing

(1)A judicial review application shall, in the first instance, be instituted in the court of the lowest grade competent to hear and determine the application.

(2)A superior court may transfer, on its own motion or on application by a party, an application for judicial review from itself to a subordinate court, or from one subordinate court to another subordinate court, or from the subordinate court to itself for hearing and determination if the court considers that—

(a)the court to which the matter is being transferred has the requisite jurisdiction to hear the judicial review application;

(b)it is in the best interest of justice and the convenience of the parties that the judicial review application be transferred; and

(c)the applicant did not have sufficient reason for filing the judicial review application at the court in which the application was originally filed.

(3)An application for transfer under sub-rule (2) may be made by Notice of Motion in the superior court supported by affidavit setting out the grounds for the application for transfer.

(4)The application for transfer may be heard ex parte by the superior court and upon hearing the application, the court may make such orders as to costs as it may deem just in the circumstances.

(5)An application for judicial review shall, unless sufficient cause is shown to the contrary, be filed—

(a)where the subject matter is situate;

(b)where the cause of action arose; or

(c)where the respondent ordinarily resides, carries on business or works for gain.

(6)The court shall not allow an objection as to the place of suing on appeal unless such objection was taken in the court of first instance and there has been a consequent failure of justice.

9. Parties who may apply for judicial review

A claim for judicial review may be filed by one applicant or by several applicants where more than one person is affected by the administrative action or decision to be challenged.

10. Claims which may not be entertained

A claim for judicial review shall not be entertained by the court if the claim directly and substantially in issue—

(a)has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and

(b)has been heard and determined by a court of competent jurisdiction.

11. Originating motion

(1)An application for judicial review shall be by way of an originating motion accompanied by a supporting affidavit.

(2)The Originating Motion shall substantially be in Form JR 2 as set out in the Schedule.

(3)The claim shall—

(a)set out the name and description of the applicant;

(b)state the relief sought and the grounds on which it is sought;

(c)contain a statement that internal mechanisms for appeal or review and any remedy available under any other written law have been exhausted;

(d)state the administrative action or decision complained of or the date it was taken;

(e)state the person who took the administrative action or decision;

(f)state the reason for the administrative action or decision, if any; and

(g)state the reason the applicant thinks the administrative action or decision was not in accordance with the Act.

(4)In judicial review proceedings, any claim for damages shall be specifically pleaded and the particulars provided in the originating motion.

(5)A party in judicial review proceedings shall give that party’s details in the claim which shall include an email address, telephone number and postal address for purposes of service.

(6)A party in judicial review proceedings shall notify the court and other parties in the proceedings of any change of address and contact information.

12. Representation

(1)A party in judicial review proceedings may appear in person or through an advocate.

(2)A judicial review application under these Rules may be instituted by any of the persons listed under Article 22(2)(a), (b), (c), and (d) of the Constitution.

13. Interim orders

(1)Where an applicant intends to seek interim orders in a judicial review application to prohibit the respondent from taking a specific administrative action or decision, or requiring the respondent to act in a certain way, the prayer for the interim relief shall be included as one of the reliefs in the originating motion.

(2)Where the applicant seeks that the judicial review application be heard urgently, the originating motion shall be accompanied by a certificate of urgency setting out the grounds under which the urgency is based.

14. Interlocutory orders

(1)The applicant may, during the pendency of judicial review proceedings under these Rules, apply for interlocutory orders.

(2)An application under sub-rule (1) shall be made as soon as the event giving rise to such application arises.

(3)Where the applicant seeks the application under sub-rule (1) be heard urgently, the application shall be accompanied by a certificate of urgency setting out the grounds under which the urgency is based.

(4)An application under this rule may be made orally or, subject to the discretion of the court, by way of notice of motion.

15. Certificate of urgency

A certificate of urgency under these Rules shall be in Form JR 3 as set out in the Schedule.

16. Fees

(1)The court may impose fees for lodging any document under these Rules.

(2)A party who is unable to pay court fees may apply to court for an order to be exempted from making such payment.

(3)The application for exemption under sub-rule (2) shall be by way of an ex parte notice of motion in the prescribed Form JR 4 and shall be supported by an affidavit in the prescribed Form JR 5.

(4)An application for exemption under sub-rule (2) shall be made and determined before the filing of the substantive judicial review application.

(5)An application under sub-rule (2) shall be disposed of expeditiously by the Deputy Registrar, if filed at the superior court, or by the judicial officer on duty if filed at the subordinate court.

(6)An order of exemption may, unless otherwise specifically directed by the court, exempt the applicant from payment of full or partial court fees, and may be set aside or varied, for reasons to be recorded by the court, on such terms as the court may deem fit.

(7)The court may, if it is shown that an exemption under this rule was procured through deceit, fraud, or material non-disclosure, vacate the order and direct the applicant to pay the court fees in full.

17. Service

Where an originating motion has been filed in court, the applicant shall, subject to any directions of the court in this regard, serve a copy of the application on every party to the application within five days and shall file a certificate of service with the court immediately thereafter.

18. Replying affidavits

(1)A respondent who wishes to oppose an application for judicial review shall, unless otherwise directed by the court, file and serve a replying affidavit within seven days of service of the application.

(2)A party may attach to its affidavit documents which are intended to be relied upon in the case which shall form the evidence in the case.

19. Case management conference

(1)The court shall set down the application for judicial review for case management conference with a view to determining all preliminary issues in the application within seven days of the filing of the replying affidavit.

(2)At the case management conference, the court shall confirm compliance with these Rules by the parties in accordance with the checklist set out in Form JR 6.

(3)During the case management conference, the court may require the applicant to provide further information about the judicial review application.

(4)Where insufficient documents have been provided by a party, the other party may request the party to supply any document relevant to the judicial review application.

(5)The respondent shall provide the applicant with each document which the respondent had when the administrative action or decision was taken.

(6)A party may request the court to make an order for discovery where a party fails to provide the documents requested for.

(7)The parties to a judicial review application may elect to settle the suit at the case management conference and the provisions of rule 25 shall apply in this regard.

(9)After going through the case management checklist, the court may determine any outstanding interlocutory matter and thereafter set down the judicial review application for hearing.

(10)A party may apply for the joinder of a party at the case management conference and, in such a case, the provisions of Order 1 of the Civil Procedure Rules shall apply.

20. Alternative dispute resolution

(1)The parties to a judicial review application may, where the suit is capable of being resolved through an alternative dispute resolution mechanism, with the leave of the court and taking into account the circumstances of the case, refer the suit to an appropriate alternative dispute resolution mechanism.

(2)In referring the suit to an alternative dispute resolution mechanism under sub-rule (1), the court and the parties shall bear in mind and comply with the time prescribed in section 8 of the Act to determine the judicial review application.

21. Jurisdiction of superior courts

The High Court, Employment and Labour Relations Court and Environment and Land Court shall have the power to hear and determine, at first instance or on appeal, any judicial review application within the respective areas of jurisdiction of the courts based on the subject matter and substance of the application.

22. Hearings

(1)A judicial review application under these Rules shall be heard orally or through written submissions, as the court may direct.

(2)In any hearing under these Rules, and subject to the directions of the court, the applicant shall have the right to begin, and shall be followed by the respondent, and the applicant shall have liberty to rebut the submissions by the respondent.

(3)The court may hear and determine the judicial review application based on the evidence of any witness where the circumstances may require.

23. Withdrawal of suits

At any time before judgment, the applicant may, by notice in writing served on all parties, discontinue the judicial review proceedings wholly or in part against all or any of the respondents.

24. Non-response, non-attendance and failure to prosecute

(1)If the respondent fails to respond to the judicial review application within the prescribed period, the court may, on its own motion or on the applicant’s application, determine the application in the manner it deems just and fit in the circumstances.

(2)If a respondent fails to appear at the hearing of a judicial review application, the court may proceed to determine the application in the manner it deems just and fit in the circumstances.

(3)Where the applicant fails to set the judicial review application for hearing within forty-five days, the court may give notice to the applicant to show cause why the application should not be dismissed and if cause is not shown, may dismiss the application.

(4)If cause is shown to the satisfaction of the court, it may make such orders as may be necessary for the expeditious disposal of the application.

(5)Where, on any day to which the hearing of the judicial review application is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the application in any manner provided in these Rules, or make such other order as it thinks fit.

25. Non-compliance by parties

(1)Where a party fails to comply with conditions set by the Act or directions of the court, the court may—

(a)strike out any pleading, application or documents filed by the party;

(b)dismiss the originating motion or appeal; or

(c)award costs against the party in default.

(2)Where the court has struck out or dismissed the judicial review application under sub-rule (1), it may proceed to enter judgment in the matter.

26. Settlement of suits

Where parties mutually agree to settle the claim out of court, a written settlement agreement in Form JR 7 as set out in the Schedule shall be filed and the settlement agreement may be adopted as an order or award of the court.

27. Judgments and orders

(1)In judicial review proceedings under section 9(1) of the Act, the court may grant any judgment or order that is just and equitable, including an order—

(a)declaring the rights of the parties in respect of any matter to which the administrative action relates;

(b)restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

(c)directing the administrator to give reasons for the administrative action or decision taken by the administrator;

(d)prohibiting the administrator from acting in a particular manner;

(e)setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

(f)compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;

(g)prohibiting the administrator from acting in a particular manner;

(h)setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;

(i)granting a temporary interdict or other temporary relief; or

(j)for the award of costs or other pecuniary compensation in appropriate cases.

(2)In judicial review proceedings relating to failure to take administrative action or decision by an administrator, the court may grant any judgment or order that is just and equitable, including judgement or order—

(a)directing the taking of the administrative action or decision;

(b)declaring the rights of the parties in relation to the taking of the administrative action or decision;

(c)directing any of the parties to take, or to refrain from taking, any administrative action or decision the taking, or the refraining from taking which the court considers necessary to do justice between the parties; or

(d)as to costs and other monetary compensation.

(3)The court may decline to grant a remedy where—

(a)a respondent acted unlawfully;

(b)there was delay in bringing the judicial review application;

(c)the court considers that the grant of the remedy sought—

(i)is likely to cause substantial hardship or prejudice to the rights of any person; or

(ii)would be detrimental to good administration or not in the public interest;

(d)the error of law made by the administrator was immaterial to the administrative action or decision;

(e)the remedy would not serve any useful purpose; or

(f)the applicant did not suffer any harm or prejudice.

(4)The court may decline to award a successful party the costs of the suit where it considers that the matter is of public interest or where the conduct of the successful party led to the administrative action or decision that was responsible for the judicial review application.

28. Judgment on admission

(1)Any party to judicial review proceedings may, at any time during the proceedings, give notice in writing admitting the whole or part of the judicial review application of any other party.

(2)Where a party has made an admission under sub-rule (1), the other party may apply to the court for an appropriate relief upon such admission that other party may be entitled to, without waiting for the determination of any other question between the parties.

(3)The court may, upon an application under sub-rule (2) make such order, or give such judgment, as the court may deem just.

(4)An admission under sub-rule (1) shall be in Form JR 8 as set out in the Schedule, stating the particulars of the admission.

29. Certificate of service upon nonappearance

Where any party fails to appear on the hearing date of a judicial review application or any date at which the application was fixed and the party appearing wishes to proceed, the party appearing shall file a certificate of service in Form JR 9 as set out in the Schedule.

30. Records of court

(1)The Registrar of each court in which a judicial review application has been made shall keep and maintain a register of judicial review applications in which the particulars of each application shall be entered.

(2)Each judicial review application entered in the register shall be numbered in each year according to the order in which they are instituted at the registry.

Part III – APPEALS

31. Appeals

(1)An appeal under section 9(5) of the Act shall be filed within seven days after the date of the judgment or award.

(2)An appeal under section 9(5) of the Act shall be initiated by Notice of Appeal in Form JR 10.

(3)A notice of appeal under sub-rule (2) shall identify the judgment from which the appeal is based and shall, in separate serially numbered paragraphs—

(a)specify whether all or part of the judgment is being appealed and, if part of the judgment, which part;

(b)identify the source of the right of appeal and basis for the jurisdiction of the court to determine the appeal;

(c)precisely set out the grounds of the appeal;

(d)concisely state the relief sought;

(e)provide the appellant’s address for service and state the names and addresses of all persons intended to be served with the notice of the appeal; and

(f)request that the appeal be set down for hearing in the appropriate registry.

(4)Where it is intended to appeal against a decree, it shall not be necessary to extract the decree before lodging the notice of appeal.

(5)A court may grant a stay of execution or an injunction pending an appeal or review of its decision on such conditions as the court may deem fit.

32. Service of notice of appeal

The appellant shall serve the notice of appeal upon each respondent within three days from the date of filing the appeal.

33. Record of appeal

(1)The appellant shall file and serve the record of appeal within fourteen days after the filing of the notice of appeal.

(2)The record of appeal shall contain copies of—

(a)an index of all the documents in the record with the numbers of the pages at which they appear;

(b)a statement showing the address for service of the appellant and the address for service of the respondent being the respondent’s last known address and proof of service on the respondent of the notice of appeal;

(c)the pleadings;

(d)the trial court’s notes of the hearing;

(e)the transcript of any shorthand notes taken at the trial;

(f)the affidavits read and all documents put in evidence at the hearing or, if such documents are not in the English language, certified translations thereof;

(g)the judgment;

(h)the certified decree or order; and

(i)such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant:

Provided that the copies referred to in paragraphs (d), (e) and (f) shall not include copies of any documents or any parts thereof that are not relevant to the matters in controversy on the appeal.

(3)The documents mentioned in sub-rule (2) shall be bound in the order in which they are set out in that sub-rule and documents produced in evidence shall be put in order of the dates they bear or, where they are undated, the dates when they are believed to have been made, without regard to the order in which they were produced in evidence.

(4)An affidavit filed in support of a chamber summons or notice of motion shall be bound immediately following the summons or notice, as the case may be.

(5)Each copy of the record of appeal shall be certified to be correct by the appellant or by a person entitled to appear on his behalf.

Part IV – ORDERS, DECREES, JUDGMENTS, AWARDS AND EXECUTION

34. Orders of the court on appeal

After the hearing of an appeal under these Rules, the Court may make an order—

(a)dismissing the appeal;

(b)affirming the decision of the trial court; or

(c)granting any other appropriate relief as may be just in the circumstances.

35. Setting aside of orders, judgments and awards

(1)Where under these Rules judgment has been entered or the judicial review application or appeal has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

(2)An order or judgment given against any party who did not attend at the hearing of a judicial review application under these Rules, may, on application, be set aside or varied on such terms as are just.

(3)Where an award in a judicial review application or appeal has been made, the persons who made it shall sign and date it immediately upon delivery.

(4)The court may set aside an order made ex parte on terms the court or tribunal may deem fit.

36. Judgements and decrees

(1)The court shall pronounce judgment in open court, at once or within seven days from the conclusion of the hearing, notice of which shall be given to the parties or the parties’ advocates.

(2)The judgment shall contain a concise statement of the judicial review application or appeal, the points for determination, the decision thereon, and the reasons for the decision:Provided that nothing shall prevent the court from giving a summary of the decision, for good reasons to be recorded, pending the giving of detailed reasons within three days of the delivery of the decision.

(3)The decree shall agree with the judgment and contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

37. Execution

The provisions of Order 22 of the Civil Procedure Rules shall apply with the necessary modifications to execution of decrees and orders under these Rules.

Part V – MISCELLANEOUS PROVISIONS

38. Abatement

(1)Subject to the directions of the court, judicial review application or appeal shall abate if—

(a)the applicant or appellant dies unless the cause of action survives and a substitution of the applicant or appellant is done within ten days; or

(b)the period prescribed in section 8 of the Act expires before the application or appeal is heard and finally determined.

(2)Subrule (1) shall apply with the necessary modifications to a counterclaim or set off.

39. Forms

The forms set out in the Civil Procedure Rules may, with the necessary modifications, be used in respect of any matter under these Rules for which a form is required but not provided.

SCHEDULE

Forms

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History of this document

25 October 2024 this version

Published in Kenya Gazette 175

11 October 2024

Commenced

Cited documents 0

Documents citing this one 23

Judgment 23

1.	Abdirahman & another v National Land Commission & 2 others (Environment and Land Petition E012 of 2025) [2025] KEELC 18471 (KLR) (19 December 2025) (Ruling) Cited
2.	Amugune v Advocates Disciplinary Tribunal (Judicial Review Application E024 of 2025) [2025] KEHC 2598 (KLR) (Judicial Review) (13 March 2025) (Ruling) Cited
3.	Auto Terminal Japan Limited v Nzai & 2 others (Application E054 of 2025) [2025] KEHC 3151 (KLR) (Judicial Review) (4 March 2025) (Ruling) Interpreted
4.	Auto Terminal Japan Limited v Nzai & 2 others (Judicial Review Application E054 of 2025) [2025] KEHC 3304 (KLR) (Judicial Review) (20 March 2025) (Ruling) Interpreted
5.	Galot v Council of the Institute of Certified Public Secretaries Kenya & another; Yogo (Interested Party) (Judicial Review Application E342 of 2025) [2026] KEHC 197 (KLR) (Judicial Review) (21 January 2026) (Judgment) Interpreted
6.	Hassan alias Geeley v National Police Service & 2 others (Judicial Review Application E015 of 2025) [2025] KEHC 457 (KLR) (Judicial Review) (28 January 2025) (Ruling) Cited
7.	Kipteng v Good Hope Sacco Limited (Miscellaneous Application E023 of 2025) [2025] KEHC 12811 (KLR) (19 September 2025) (Ruling) Interpreted
8.	Luther v Executive Committee Nakuru Amature Boxing Club (Judicial Review E005 of 2025) [2026] KEHC 1106 (KLR) (9 February 2026) (Ruling) Interpreted
9.	Muchai v National Land Commission (Tribunal Case E055 of 2025) [2025] KELAT 175 (KLR) (24 July 2025) (Judgment) Interpreted
10.	Muhia (Suing as the Legal Representative of the Estate of John Muhoro Karanja) v Director of Occupational Safety and Health Services; H & M Aluminium Limited (Interested Party) (Judicial Review Application E306 of 2025) [2025] KEHC 13694 (KLR) (Judicial Review) (29 September 2025) (Ruling) Cited