Clarifying Judicial Review in Kenya: Insights from the Dande Case
- Muhoro & Gitonga Associates
- Jan 31, 2024
- 5 min read
Updated: 3 days ago
Table of Contents
Background of Judicial Review in Kenya
The Dande Case: Context and Parties Involved
Legal Proceedings Leading to the Supreme Court
Key Issues Before the Supreme Court
The Supreme Court’s Judgment (June 16, 2023)
Expansion of the Scope of Judicial Review
Implications for Administrative Bodies
Police Accountability and Human Rights in Kenya
Comparative Perspective: Judicial Review Globally
Recent Developments and Related Cases in Kenya
Key Takeaways from the Dande Case
Practical Implications for Litigants and Practitioners
1. Introduction
Judicial review in Kenya has undergone profound transformation, with the Supreme Court’s judgement in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) marking a turning point.
Delivered on June 16, 2023, this judgment clarified the scope of judicial review, expanded the court’s powers, and underscored the protection of constitutional rights. This article unpacks the background, key issues, judgment, implications, and how this case reshapes Kenya’s judicial landscape.
2. Background of Judicial Review in Kenya
Judicial review in Kenya has traditionally been a mechanism for courts to check whether public bodies act within their powers. Historically, it was confined to procedural aspects—examining whether decisions were made fairly and within jurisdiction.
However, over time, the doctrine has evolved. Kenyan courts have increasingly borrowed from common law traditions (UK) and constitutional principles (South Africa), expanding the grounds of review to include reasonableness, proportionality, and fairness.
The 2010 Constitution elevated judicial review by embedding rights-based considerations, ensuring that administrative decisions must align with constitutional values.
3. The Dande Case: Context and Parties Involved
The appellants were Edwin Harold Dayan Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama, and Cytonn Investments Management Limited, formerly senior employees of British American Asset Managers (BAAM).
BAAM, a subsidiary of Britam, had entered into a joint venture with Acorn Group Limited for real estate development. Disputes emerged, leading to the resignation of the appellants, who later formed Cytonn Investments. Britam accused them of fraudulently transferring funds to Acorn.
Both civil suits and criminal proceedings were initiated, triggering multiple legal battles, including judicial review applications and constitutional petitions.
4. Legal Proceedings Leading to the Supreme Court
At the High Court, the appellants challenged the legality of the police investigations and alleged constitutional rights violations. The court dismissed the applications.
The matter proceeded to the Court of Appeal, which upheld the High Court’s findings. The appellants then escalated the matter to the Supreme Court, resulting in consolidation of petitions and eventual delivery of the landmark June 16, 2023 judgment.
5. Key Issues Before the Supreme Court
Violation of Constitutional Rights
The petitioners alleged breaches of rights, including liberty, dignity, and protection from inhumane treatment, under Articles 28, 29, and 49 of the Constitution.
Police Accountability
A core issue was whether the National Police Service (NPS) could be held directly accountable for misconduct and whether internal complaint mechanisms were adequate.
Legal Remedies and Compensation
The petitioners sought remedies, including compensation for rights violations, requiring the Court to weigh proportionality and just outcomes.
6. The Supreme Court’s Judgment (June 16, 2023)
The Supreme Court expanded the scope of judicial review to allow examination of the merits of administrative decisions, not just procedures. The Court affirmed that where constitutional rights are implicated, a substantive inquiry is necessary to ensure justice is achieved.
The Court held that the appellants’ constitutional rights had been violated by the police, establishing police accountability in a way previously unseen in Kenyan jurisprudence.
7. Expansion of the Scope of Judicial Review
Traditionally, judicial review in Kenya mirrored English law—limited to illegality, irrationality, and procedural impropriety.
The Dande case departed from this restrictive model, affirming that Kenyan courts can scrutinize the substance and fairness of decisions. This sets Kenya apart as a jurisdiction that balances administrative autonomy with constitutional justice.
8. Implications for Administrative Bodies
Public and administrative bodies must ensure not only procedural compliance but also substantive fairness in decision-making. This heightens accountability in agencies such as the National Police Service, regulatory bodies, county governments, and tribunals.
9. Police Accountability and Human Rights in Kenya
The judgment highlighted gaps in the accountability framework for the police. The Court emphasized that the NPS must respect human dignity and fundamental freedoms, in line with Articles 19 and 20 of the Constitution.
This decision strengthens human rights jurisprudence, especially in contexts of state overreach.
10. Comparative Perspective: Judicial Review Globally
In the UK, judicial review remains largely procedural but is slowly evolving. In South Africa, constitutional supremacy has long permitted merit-based review, influencing Kenya’s trajectory.
Kenya’s shift reflects a global trend toward robust judicial oversight of administrative power.
11. Recent Developments and Related Cases in Kenya
The Dande decision aligns with recent jurisprudence, including:
Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) – established higher standards for judicial review in governance matters.
Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board [2016] KEHC 5405 (KLR) – confirmed the right to fair administrative action.
Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR) – an early case emphasizing fairness.
Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR) – underscored judicial scrutiny of administrative discretion.
Law Society of Kenya & 3 others v Inspector General of Police & 4 others (Petition E436 of 2024) [2024] KEHC 10566 (KLR) (Constitutional and Human Rights) (9 September 2024) (Ruling) – a recent High Court decision applying the expanded scope of review to police accountability.
12. Key Takeaways from the Dande Case
Judicial review in Kenya now extends to merit-based scrutiny. Administrative bodies face a higher threshold for fairness.The judgment strengthens constitutional accountability. It reinforces human rights protections against state overreach.
13. Practical Implications for Litigants and Practitioners
Litigants can now rely on broader grounds in judicial review applications.Lawyers must craft arguments that go beyond procedural lapses to include substantive fairness. Administrative bodies should review policies and internal processes to avoid exposure to litigation.
14. Conclusion
The Supreme Court’s decision in the Dande case is a landmark in Kenya’s legal history. By expanding the scope of judicial review, it ensures that justice is both procedural and substantive.
This ruling reshapes the relationship between citizens, administrative bodies, and the judiciary, fostering accountability and protecting constitutional rights.
15. Frequently Asked Questions (FAQs)
Q1: What is judicial review in Kenya?
Judicial review is the power of courts to examine administrative decisions to ensure they comply with the law, the Constitution, and principles of fairness.
Q2: Why is the Dande case important?
It expanded judicial review to include examination of the merits of decisions, strengthening constitutional accountability.
Q3: Does the case affect all administrative bodies?
Yes. Any administrative body must now ensure both procedural legality and substantive fairness.
Q4: How does this decision affect the National Police Service?
It imposes higher standards of accountability and respect for rights, reinforcing mechanisms for redress against misconduct.
Q5: Is Kenya’s approach to judicial review unique?
Kenya’s approach now aligns with rights-based jurisdictions like South Africa, while diverging from purely procedural models like the UK.
