Tracing The History and Development of The Doctrine of Locus Standi In Judicial Review Cases
in Kenya( Pre- 2010 Constitution.)
Locus standi is the legal capacity of an individual to bring or take an action to court.
This doctrine however faced some restrictive measures initially since the English Common Law
was the most dominant. Moreover, even after Kenya gained its independence in 1963 the
doctrine of Locus standi still maintained the conservative nature and therefore limiting access
to judicial review to those directly affected by administrative actions. In addition, Judicial
review was however limited due to the English common Law by suggesting that the claimants
demonstrate a more direct and personal interest in the matter at hand.
The following are examples of the Limitations and Restrictions of Locus standi during the Pre-
2010 constitution:
1. As stated earlier, during Independence in 1963 , the structure behind Judicial review
was based on the English Common law which stressed that only those who could prove
interest adequately or personal injury caused by administrative action could bring forth
claim before a court , therefore independent individuals such as Non- Governmental
Organizations(NGOs) had insufficient stands in order to challenge the illegal
administrative actions.
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A case example is the Case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors
Ltd(1969) . In this case it was held that: The Court had inherent power to dismiss the suit
notwithstanding that the case did not fall within any of the specific provisions of the Civil
Procedure (revised) Rules 1948 which do not support to be exclusive. In addition it was also
held that application to dismiss a suit for want of prosecution should be made by motion.
2. After independence in 1963 during the period of 1970 to 1980 the courts still upheld the
restrictive measure of the principle of locus standi that required a direct personal
interest. This therefore formed barriers to holding public authorities accountable.
Moreover, courts were unwilling to allow individuals or groups without personal interest
to seek judicial review.
Case example is the Case of Stanely Munga Githunguri v. Republic (1986) KEHC 44 KLR. The
court granted, Stanley’s prayer of a court order prohibiting the case from being charged in a
court of law. The court based its argument on the advice which was stated, by the previous high
court judges, when the magistrate sought advice from them on whether it was right to try
Stanley. The court had advised that under section 26 (3), the attorney general had the right to
charge a person but under reasonable cause but if an attorney general , had decided not to
prosecute , the only time they can prosecute somebody again is if the find fresh evidence. This
evidence should suggest that the person actually committed the crime. This judgement showed
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Kenya Law org.
how the court persisted on the need for a party to demonstrate a personal interest to bring a
claim.
In the years leading to the 2010 constitution that is between 2000 and 2010 there were calls for
reforming and expanding the doctrine of locus standi to allow the litigation of public interest.
This calls made the courts more open to recognize standing in cases that raised vital questions
of public importance.
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An example is the Law Reform Act (Cap 26) and order 53 of the Civil Procedure Rules Which
provide the procedural framework for judicial review but still required applicants to
demonstrate sufficient personal interest.
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Law Reform Act (Cap 26)
