Judicial review is the process by which a court of law reviews the administrative actions of a decision making body to determine its lawfulness. The remedies available under judicial review include: an order of certiorari (to quash the decision of the lower decision making body); an order of mandamus (an order compelling a person to perform an act which they are obligated to perform) and an order of prohibition (an order barring a lower decision-making body from doing a certain act).

The Fair Administrative Action Act, 2015 however expanded the remedies available under judicial review beyond the three traditional reliefs.

Prior to the promulgation of the 2010 Kenyan Constitution, judicial review was only limited to administrative actions by public bodies. However, Article 47 of the 2010 Constitution as effected by the Fair Administrative Action Act, 2015 extended the scope of judicial review to private bodies.

The embedding of judicial review into the Constitution also elevated the remedy into a constitutional right. This position was enunciated by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others S.C Petition No. 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR

Traditionally, and prior to the 2010 constitution, judicial review was restricted to the decision-making process, and not the merits of the decision. However, the Supreme Court, in its recent decision in SC petition No. 6 (E007) of 2022 delivered on 16th June 2023, has now established that the entrenchment of judicial review into the constitution allows the court to direct itself to the merits of the decision. Notwithstanding, the court will go into merit-review only if the the applicant approaches the court under Article 47 of the constitution, such as to enforce their constitutional right.

However, if an aggrieved party approaches the court under Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken.

This decision sets out a transformative approach into judicial review by departing from the traditional restrictive approach into a more liberal point of view which expands the scope of benefits that an aggrieved party may accrue from the remedy of judicial review.