Judicial Review Notes

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LLB II 2003
Judicial Review is the process through which an aggrieved person can find redress in a Court of Law. Judicial Review forms part of administrative law because it is the most appropriate way that an aggrieved party aggrieved by an administrative body can find redress. Reading Material

1. Brian Thompson – Text Book on Constitutional and
Administrative Law 2nd Edition 1995.
2. Peter Cane, An Introduction to Administrative law 3rd Ed. 1996 3. P L O Lumumba – An outline of judicial Review in Kenya, 1999 4. Order 53 of the Civil Procedure Rules, Civil Procedure Act Cap 21

5. The Constitution 1998 – Revised Ed. 1998 (1987)
Definition of Administrative Law –
Administrative Law can be defined as the law relating to public administration. It is the law relating to the performance, management and execution of public affairs and duties. Administrative law is concerned with the way in which the govt carries out its functions. Administrative functions can be divided into a number of broad categories namely

1. Ministerial Functions; Examples of Ministerial Functions are those functions carried out or performed by Government
Ministers in their implementation of governmental policies and programs. Examples include appointment of public officials by Ministers and the grant of ministerial approvals and consents. 2. Administrative Functions - these are the functions carried out by public officials and public bodies in their management of various governmental bodies in their provision of service for example educational services and in their administration of

various social services as in the case of social security services. Please note that management of public schools and universities 1
provide yet another example of administrative functions of
governmental bodies.
3. Legislative Functions: These include the function of making or creating subsidiary legislation. The responsibility of
legislative functions is on the respective Ministers’. The duty of making by-laws is also the respective minister’s.
4. Judicial Functions: These primarily involve the functions of determining claims or disputes between individuals and other bodies. A good example of administrative body that performs
judicial functions is the Industrial Court which functions as a court of law.
5. Quasi Judicial Functions: These involve the exercise of
powers which are fundamentally judicial but without the usual trappings of a court of law for example without strict
requirement of rules of evidence or the observance of rules of evidence, without strict requirements of examination of
witnesses and without other legal technicalities a good example being the Liquor Licensing Court, the Land Control Boards and the Motor Vehicle Licensing Authorities.
In the exercise of the various functions, public officials and public bodies do various things
(a) They make decisions for example they make decisions on
application for licences;
(b) They exercise discretion. The exercise of discretion is an important aid to the exercise of decision-making powers.
A public official has the power to exercise discretion
whenever the effective limits of his/her power leaves
him/her free to make a choice among possible causes of
action or inaction for example an official may be required
by law to meet expenses resulting from an emergency or
disaster without the law defining what amounts to an
emergency or disaster and in such a case the public
official would have discretion to decide what amounts to
a disaster.
(c) They also resolve disputes between individuals and
governmental agencies or between individuals and
private bodies.
(d) They make laws, rules and regulations.
(e) They determine appeals against adverse decisions made
by administrative bodies.
In performing all of these functions and many more that time will not allow us to...
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