On the 7th May 2021, a three-judge bench of the Court of Appeal at Nairobi in the matter of Judicial Service Commission & another v Lucy Muthoni Njora [2021] eKLR pronounced itself on among others the issues whether the Courts in cases of Judicial Review have any place making substantive inquiries into the administrative actions impugned before them.
While admitting that the Court in Judicial Review is traditionally a “process-only” the Court questioned the manner of inquiring into the formalities of an administrative decision without looking into the circumstances themselves and found it absurd to ignore and skip over the circumstances.
Long seen as a purely procedural inquiry, judicial review has over the years, since the promulgation of the Constitution of Kenya 2010, with the right to fair administrative Action under Article 47 and the grounds provided under the Fair Administrative Action Act, section 7, seen an evolution from what the Court in the Njora case called a “misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit”.
The Court declared that such an approach to judicial review could only lead to “intolerable superficiality.”