Access to Courts: Karume and Kenya Exhaustion Rules
A person can have a serious complaint against a public authority and still arrive in court too early. Speaker of the National Assembly v Karume remains one of Kenya's best-known authorities for that problem. Its central lesson is not that courts are closed whenever another procedure exists. It is that where the Constitution or legislation creates a clear route for resolving a particular grievance, a litigant should ordinarily use that route before asking a court to intervene through another procedure.
That distinction matters in modern administrative law because public
decisions are now surrounded by many specialised objection, review and appeal
systems. Tax disputes, procurement challenges, professional discipline,
political-party disputes, employment decisions and regulatory matters may all
have their own statutory routes. The first practical question is therefore not
simply, "Do I have a constitutional complaint?" It is also,
"What procedure has the law created for this complaint, and have I used
it?
What Karume
actually decided
Speaker of the National Assembly v Karume, Civil Application 92 of
1992 [1992] KECA 42 (KLR), arose after the Speaker declared James Njenga
Karume's parliamentary seat vacant. Karume had already filed an election
petition under the procedure then provided by election law. While that petition
remained pending, he also commenced separate judicial review proceedings and
obtained leave to seek certiorari, with the leave operating as a stay.
The Speaker moved to the Court of Appeal for a stay pending an
intended appeal. The Court of Appeal considered the intended appeal arguable
because the Constitution and election legislation had prescribed a specific
method for challenging the vacancy of a parliamentary seat. The Court stated
the principle that, where a clear procedure for redress is prescribed by the
Constitution or an Act of Parliament, that procedure should ordinarily be
strictly followed.
The ruling was interlocutory. It did not finally determine the
election petition or issue a final judgment dismissing every possible judicial
review claim. That procedural posture matters because the case should be cited
for its principle of prescribed procedure, not inflated into a final merits
judgment on all aspects of Karume's underlying dispute.
Why the
rule is more than a technicality
The exhaustion principle protects institutional design. Parliament
may assign the first decision to a tribunal, regulator or internal appeal body
because that institution has subject-specific expertise, access to records or
powers to correct the problem without immediate court litigation. A court that
ignores that route can create parallel proceedings, inconsistent decisions and
unnecessary cost.
Karume itself showed the danger. The same parliamentary vacancy was
being challenged through both an election petition and judicial review. The
Court of Appeal was not merely policing labels. It was protecting a legal
structure in which one procedure had been specifically designed for that
grievance.
This is also why a claimant cannot usually avoid exhaustion by
adding constitutional language to the pleading. The court looks at the
substance of the dispute, the decision being challenged and the remedy provided
by the governing law. If the specialised mechanism can genuinely address the
complaint, changing the heading of the case does not necessarily change the
required route.
Section 9
now gives the doctrine a statutory framework
The modern position must be read with section 9 of the Fair
Administrative Action Act 2015. Section 9(2) provides that a court shall not
review an administrative action under the Act unless internal appeal or review
mechanisms and remedies available under other written law have first been
exhausted. If the court is not satisfied that they have been exhausted, section
9(3) directs the applicant to use them first.
Importantly, the Act also recognises an exception. Under section
9(4), a court may, on application and in exceptional circumstances, exempt a
person from the exhaustion requirement where that is in the interests of
justice. The exception is therefore not automatic. A litigant who wants to
bypass the statutory route should ask for exemption and explain the factual and
legal reasons that make the ordinary route inadequate.
Kenyan courts were still applying this framework in 2026. In
Republic v Rift Valley Sports Club, decided on 17 February 2026, the High Court
reproduced section 9 and treated exhaustion as the statutory starting point for
judicial review. In Kiptoo v Vice Chancellor, Strathmore University, decided in
January 2026, the High Court similarly emphasised that the section 9(4)
exemption requires cogent reasons rather than a bare assertion of
constitutional importance.
When an
exception may genuinely matter
The existence of section 9(4) prevents Karume from becoming an
automatic courthouse barrier. An alternative remedy may exist on paper but be
unable to address the real problem. The specialised body may lack jurisdiction
over the constitutional issue, may be unable to grant urgent protective relief,
or the process may be practically inaccessible in exceptional circumstances. A
serious risk of irreversible harm may also affect the interests-of-justice
analysis.
The correct approach is evidence-based. A claimant should identify
the statutory mechanism, state what has or has not been done, explain why the
available remedy is inadequate in the particular case, and expressly seek
exemption where necessary. Saying simply that a constitutional right is
involved does not answer those questions.
For respondents and public bodies, the exhaustion objection should
be equally precise. It is not enough to cite Karume and say "wrong
forum." The objection should identify the exact provision creating the
alternative route, show that the route applies to the grievance, and explain
the remedy that the specialised body can provide.
A regional
comparison, not a substitute for Kenyan law
The idea of exhaustion also appears in the African human-rights
system. Article 56(5) of the African Charter on Human and Peoples' Rights
generally requires exhaustion of local remedies before a communication is
considered by the African Commission, unless those remedies are unduly
prolonged. That is a different legal procedure from Kenyan judicial review and
does not determine how section 9 operates in a Kenyan court.
The comparison is nevertheless useful because both systems reflect a
similar institutional idea: the body legally assigned to deal with a grievance
should ordinarily have a genuine opportunity to do so before another forum
intervenes. In Kenya, however, the controlling rules come from the
Constitution, the governing statute, the Fair Administrative Action Act and
Kenyan precedent.
How to use
Karume before filing
Before filing judicial review or a constitutional petition, counsel
should map the dispute-resolution route. The starting document is the statute
or constitutional provision creating the public body's power. The next task is
to identify any objection, review, appeal, tribunal or internal process linked
to the challenged decision, including its time limits and available remedies.
If the alternative procedure can resolve the grievance, it should
normally be commenced and completed. If it cannot, the pleading should not
leave the issue implicit. It should explain the exceptional circumstances and
request the exemption contemplated by section 9(4).
Candour also matters. In Karume, the existence of the pending
election petition had not been disclosed when ex parte judicial review relief
was sought. A litigant asking for urgent discretionary orders should disclose
related proceedings and material procedural history. Failure to do so can
weaken the case independently of the exhaustion issue.
Why Karume
still matters
Karume remains useful because it forces litigants to distinguish
access to justice from immediate access to a preferred court procedure. The
doctrine does not say that unlawful administrative action is immune from
judicial control. It says that judicial control operates within a legal
architecture in which specialised mechanisms may be intended to act first.
The modern rule is therefore more nuanced than the phrase
"strictly follow the procedure" may suggest when read alone. The
default is exhaustion. The Fair Administrative Action Act supplies an express
route to exemption in exceptional circumstances. Later case law requires the
party seeking that exemption to justify it.
For ordinary readers, the practical lesson is simple: before going
to court, find out whether the law has already created a complaint or appeal
route for the decision you are challenging. Ignoring that route can cause a
strong case to fail before the judge ever reaches the underlying wrong.
Source note
This article is based on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), section 9 of the Fair Administrative Action Act 2015, Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others, later Kenyan decisions applying exhaustion including Republic v Rift Valley Sports Club [2026] KEHC 1761 (KLR) and Kiptoo v Vice Chancellor, Strathmore University [2026] KEHC 1280 (KLR), and Article 56(5) of the African Charter on Human and Peoples' Rights as a regional procedural comparison.
Suggested citation:
Ronald Serwanga, "Access to Courts: Karume and
Kenya Exhaustion Rules" East Africa Legal Insight (9 September 2026).