The High Court has stopped the implementation of a section of judicial administrative rules rolled out by Chief Justice Martha Koome aiming to control the filing of cases involving actions of government agencies.
Justice Bahati Mwamuye on Wednesday halted the implementation of six sections of the Fair Administrative Action Rules, 2024 following a petition by Katiba Institute, which claims continued operationalisation of the regulations would return Kenya’s governance and legal system to the colonial era.
The rules were gazetted by Ms Koome on October 11, 2024. Among other things, the rules sought to shield government officials from being ambushed with court proceedings.
“The office of the Chief Justice has enacted anachronistic subsidiary legislation, The Fair Administrative Action Rules, 2024, which belongs in the dustbin of history,” says Katiba Institute’s lawyer Joshua Malidzo Nyawa in the court pleadings.
“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,” he adds.
The regulations, popularly known as Koome rules, concern court proceedings on judicial review. These are cases filed by individuals or entities asking the court to examine the legality of actions taken by public bodies and ensure State agencies act within their powers and follow due process.
Among the contentious parts of the rules that have been stopped by court, is a mandatory requirement that persons or entities intending to commence judicial review proceedings against a public body should first notify the said agency.
The applicant is required to furnish the government official with a ‘notice of intention to sue’ at least seven days before the date of filing of the case.
“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,” says Rule 5 of the disputed regulations.
It says that applicants intending to apply for the quashing of an administrative action or decision by a public body should commence the judicial review proceedings within six weeks after the date the administrative action was taken.
The provision titled “period for commencement of proceedings to quash administrative action or decision” however gives the court powers to extend the time and admit the application.
The extension suffices where it is proved to the court that "the applicant was prevented, through fraud or misrepresentation, from getting to know of the administrative action or decision or could not, despite the exercise of diligence, have known of the administrative action or decision sought to be quashed".
According to the Katiba Institute, the effect of the rules is to control litigation against the government.
It says implementation of the rules imposes a hurdle to constitutional requirements on accountability, transparency, and good governance.
"Since the rules seek to entrench an unchecked government, a goliath who deserves privileged treatment, this court must stop the subversion of our democracy and conversion of our Human Rights State into an autocratic government state," says lawyer Malidzo Nyawa in the petition.
He further argues that the rules would give government officials privileged treatment, such as furnishing them with prior notice of intention to sue.
"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 says.
Describing the new rules as retrogressive laws and a threat to the enforcement of fundamental rights, the lawyer said Kenya could not endure such regulations "which hark back to dark history".
"The rules are an example of colonial ghosts or 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," said Katiba's lawyer.
He observed that the Colonists imposed similar hurdles on access to justice to entrench an unaccountable, opaque, and repressive regime on Kenyans.
The lobby group has named the Office of the Chief Justice and the Attorney-General as the respondents in the dispute while the Commission on Administrative Justice (Ombudsman) is listed as an interested party.
"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.
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," says the lawyer in the court papers.
The other part being fought by the lobby group states that the court may decline to grant a remedy even where a respondent acted unlawfully or there was a delay in filing the judicial review application.
The rule also requires courts to decline issuing a remedy that is likely to cause substantial hardship or prejudice to the rights of any person; or would be detrimental to good administration or not in the public interest.
Justice Mwamuye fixed the petition for mention of April 30, 2025.
