The High Court has issued a temporary halt on the implementation of specific sections of judicial administrative rules introduced by Chief Justice Martha Koome last year, following a petition filed by Katiba Institute.
The petition challenges the fairness of the regulations, claiming they would create barriers to accessing justice.
Justice Bahati Mwamuye issued the order on April 5, 2025, halting six sections of the Fair Administrative Action Rules, 2024, which were gazetted by Chief Justice Koome on October 11, 2024.
The petition was filed by the Katiba Institute, an organization that advocates for the protection of constitutional rights.
The Institute claims that the continued operationalization of these rules would hinder citizens’ ability to challenge government actions, violating their right to justice.
In the court filings, Katiba Institute’s lawyer, Joshua Malidzo Nyawa, stated: “The office of the Chief Justice has enacted anachronistic subsidiary legislation, The Fair Administrative Action Rules, 2024, which belongs in the dustbin of history.”
He further argued, “This petition seeks to return the rules, which were applicable in the colonial era, to their appropriate place.
This court is being approached to blow the constitutional whistle and prevent further constitutional harm.”
The controversial regulations pertain to judicial review proceedings cases where individuals or entities seek to have the court examine the legality of actions taken by public bodies.
Among the most contentious aspects of the rules is a requirement for individuals to notify the government before commencing judicial review proceedings.
Specifically, Rule 5 of the new regulations mandates that any person or entity intending to file for judicial review against a public body must first serve a “notice of intention to sue” to the relevant government agency at least seven days before filing the case.
The rule reads: “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.
The notice shall be served upon the respondent at least seven days before the date of filing of the judicial review application.”
Another highly contested provision is the time limit for filing judicial review applications.
The regulations stipulate that individuals must begin proceedings within six weeks of an administrative action being taken.
While the regulations allow the court to extend this time frame, the extension is only permitted under certain conditions, such as if the applicant was unaware of the action due to fraud or misrepresentation, or could not have known despite exercising diligence.
Katiba Institute contends that these provisions are designed to control litigation against the government and undermine citizens’ constitutional right to hold public bodies accountable.
Lawyer Malidzo Nyawa emphasized this concern, stating, “In an era of accountability and transparency, unnecessary hurdles should not be placed on ordinary citizens’ quest to enforce the Constitution, accountability, openness and efficiency in service delivery by government or government agencies. Yet these Rules place those unnecessary hurdles.”
He further criticized the new regulations as “retrogressive laws” that pose a direct threat to the enforcement of fundamental rights, calling them a reminder of “colonial ghosts” trying to reassert outdated practices.
“The rules are an example of colonial shadows enacted to reintroduce the notice to sue requirement, impose a smaller time window to quash an administrative decision, require a pleading of damages, and limit the powers of the court to grant relief when the relief would cause substantial hardship or prejudice or would be detrimental to good administration,” Nyawa stated.
In his argument, he also pointed out that the colonial-era practices were designed to prevent ordinary citizens from challenging government actions, contributing to an unaccountable and oppressive regime.
“The respondents risk converting the country from a constitutional democracy into an executive dictatorship where executive actions cannot be challenged through judicial review proceedings without having to surmount Mount Everest in the name of the hurdles in the rules,” he argued in the court papers.
“The enforcement of the rules will result in a chilling effect, as ordinary Kenyans will not institute judicial review proceedings in fear of being able to overcome the procedural hurdles.”
The High Court is set to reconvene on April 30, 2025, for further mention of the case
