Introduction

Following its promulgation, the Constitution of Kenya, 2010 (the Constitution) has been hailed as being transformative and progressive. In this regard, one of the notable transformations that the Constitution has brought about is the guarantee of access to jus- tice as provided for under Article 48.

The Constitution also clearly sets out judicial authority and out- lines its limits under Article 159, and further lays out the guiding principles for the Courts to adhere to in exercising this authority – that justice is to be administered to all irrespective of status; justice is not to be delayed; alternative forms of dispute resolution are to be encouraged; and justice is to be administered without undue regard to procedural technicalities.

This latter edict, that justice is to be administered without undue regard to procedural technicalities, has sparked significant debate and controversy given that there have been numerous instances where litigants have seemingly thrown procedural rules and con- straints to the wind and nonetheless expected favourable out- comes on the substance of the dispute. This issue was addressed in Raila Odinga & 5 Others v IEBC & Others (2013) eKLR in which the Court had this to say on the effect of Article 159 of the Constitution:

“Our attention has repeatedly been drawn to the provisions of Article 159(2) (d) of the Constitution which obliges a court of law to admin- ister justice without undue regard to procedural technicalities. The op- erative words are the ones we have rendered in bold. The Article simply means that a Court of law should not pay undue attention to procedur- al requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Courts of law …”

The Courts have continued to demonstrate that a fallback on Article 159 is not always the legal panacea one might expect. On the forefront of upholding this position is the Judicial Review Division of the High Court which in recent decisions has come to be the shielding grace to litigants who may have been shortchanged as a result of an administrative decision or action taken by a body in authority on account of substantive justice where procedure has not been accorded much regard.

Judicial Review

Judicial Review is the authority vested in the Courts in appropriate proceedings before it, to declare a decision or action by an authoritative body either contrary to, or in accordance with, the Constitution or other governing law with the effect of rendering the decision invalid or vindicating its validity. Put simply, it gives effect to the Constitutional principle of checks and balances.

Judicial Review is primarily concerned with the decision-making process and as such, when Courts conduct Judicial Review proceedings, they are in essence ensuring that the decisions made by the relevant bodies in authority are lawful. Consequently, should the Courts find that a decision made by a body is unlawful (be it for reasons such as disregarding procedural technicalities), then the Courts can set aside that decision. The role of the Court is therefore supervisory, and the Court is refrained from delving into a merit review or adopting an appellate approach – which is ordinarily not the function of Judicial Review.

Consolidated Cases

In recently decided consolidated Judicial Review cases, the Court has upheld and enhanced the position that adherence to statutory procedural requirements is not a mere suggestion, notwithstanding the provisions of Article 159 of the Constitution. The backdrop against which these Judicial Review proceedings were filed were historical land injustices alleged to have been suffered by the applicants.

In ELC JR No. 3 of 2020 (R v National Land Commission & 3 Others ex parte James Finlay’s Kenya Ltd & Others) it was the Kenya Tea Growers Association’s (KTGA) case that the National Land Com- mission (the NLC) in seeking to address the historical land injustice claims lodged on behalf of the communities in the area by the County Governments of Kericho and Bomet, had not adhered to the procedural dictates outlined in section 15 of the National Land Commission Act (NLC Act), and further that the NLC had not granted KTGA an opportunity to be heard.

In ELC JR No. 4 of 2020 (R v National Land Commission & 2 Others ex parte Kakuzi PLC) Kakuzi PLC (Kakuzi) sought Judicial Re- view relief on the grounds that it carries out intense agricultural activities on the suit properties in question and that the NLC some- time in 2018 served them with a hearing notice in respect of the historical land injustice claims relating to the said parcels of land. Kakuzi sought and was granted interim conservatory orders staying the historical land injustice proceedings which the NLC was conducting. The NLC nonetheless proceeded with the hearings and gazetted recommendations arising therefrom.

In ELC JR No. 5 of 2020 (R v National Land Commission & 2 Others ex parte Eastern Produce Kenya Limited) Eastern Produce Kenya Limited (Eastern Produce), sought Judicial Review Orders on the grounds that the NLC gazetted recommendations arising from a historical land injustice complaint by Kimasas Farmers Co-opera- tive Society against Eastern Produce (Kimasas).

According to Eastern Produce, the effect of the recommendations by the NLC was that various sub-divisions done by Eastern Produce were done illegally and should be cancelled with the land parcel in question being allocated to Kimasas. These recommenda- tions were to be implemented by the Chief Lands Registrar and the Ministry of Lands.

The common thread arising in these consolidated cases was the historical land injustices meted upon the residents living within the respective areas, which the NLC sought to remedy. The Court found that the NLC indeed had the mandate to adjudicate upon historical land injustices as per section 15 of the NLC Act. How- ever, what was in dispute was the manner and procedure through which NLC conducted these proceedings.

It was contended by the applicants in all three (3) cases that the NLC carried out the respective historical land injustice proceedings without issuing them with due notice to attend and participate in the proceedings and without affording them an opportunity to appear before the NLC and as such, the proceedings were devoid of procedural soundness with respect to guaranteeing fair administrative action. The applicants therefore approached the Court seeking Judicial Review remedies as against the recommendations gazetted by the NLC premised on the fact that in conducting the proceedings, it failed to adhere to procedural dictates outlined in the NLC Act.

In recently decided consolidated Judicial Review cases, the Court has upheld and enhanced the position that adherence to statutory procedural requirements is not a mere suggestion, notwithstanding the provisions of Article 159 of the Constitution.

NLC carried out the respective historical land injustice proceedings without issuing them with due notice to attend and participate in the proceedings and without affording them an opportunity to appear before the NLC and as such, the proceedings were devoid of procedural soundness with respect to guaranteeing fair administrative action. The applicants therefore approached the Court seeking Judicial Review remedies as against the recommendations gazetted by the NLC premised on the fact that in conducting the proceedings, it failed to adhere to procedural dictates outlined in the NLC Act.

In determining the degree of procedural fairness required, the Court assessed the nature of the decision being made, and the process followed in making it. The NLC in conducting the historical land injustice proceedings notwithstanding their recommendations, sought to remedy long-standing land injustices affecting the residents in the areas. What therefore arises is a substantive justice aspect in remedying historical land injustices being pitted against procedural requisites.

The Court thus assessed the procedure followed and whether it met the standard for procedural fairness and found that in all the proceedings conducted, the NLC did not adhere to the dictates of procedural fairness. As such, the Court proceeded to grant the Judicial Review orders sought, including quashing the decisions of the NLC.

In so doing, the Court stated that from the onset, there was no evidence of notification to the applicant to attend the hearings which the Court held to be contrary to the NLC Act, Article 47 of the Constitution and section 4(3) of the Fair Administrative Action Act, 2015. It stated that whereas the nature of the NLC’s mandate with respect to historical land injustices was more investigative than adversarial, it did not take away the need to notify any party to the proceedings and allow it an opportunity to be heard. Failure to do so amounted to a grave procedural violation of the right to fair administrative action and rendered the decision arising out of the proceedings a nullity.

The preceding discussion highlights that Courts are not shy to find in favour of a litigant who has been subjected to proceedings in which procedural fairness has seemingly been sacrificed at the al- tar of substantive justice. While empathy may be extended to those who have experienced historical land injustices, the NLC holds a paramount obligation to uphold procedural fairness when addressing such matters.

Upshot

As was stated by the Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 6 Others (2013) eKLR, Article 159 of the Constitution, which commands Courts to seek to render substantive justice, was not meant to aid in the destruction of rules of procedure and create an anarchial free-for- all in the administration of justice. The rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain, and even-handed.

Litigants are therefore dutybound to pay attention and adhere to procedural dictates in the course of their respective cases and ought to beware that a reliance on Article 159 of the Constitution can only come to assist litigants who have themselves adhered to the rules and procedures set to aid in the administration of justice.