trite that it is void and if an act is void, then it is in law a nullity as it is not only bad but
incurably bad and there is no need for an order of the Court to set it aside, though
sometimes it is convenient to have the Court declare it to be so. Where the Court finds this
to be so the actions taken in pursuance thereof must therefore break down once the
superstructure upon which it is based is removed; since you cannot put something on
nothing and expect it to stay there as it will collapse.
70. A similar position was adopted by Nyamu, J (as he then was) in Republic vs. Kajiado Lands
Disputes Tribunal & Others ex parte Joyce Wambui & Another Nairobi HCMA. No. 689 of
2001 [2006] 1 EA 318 in which he held that despite the irregularities the Court cannot
countenance nullities under any guise since the High Court has a supervisory role to play
over inferior tribunals and courts and it would not be fit to abdicate its supervisory role and
it has powers to strike out nullities.
71. As was held in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi
HCMA No. 743 of 2006 [2007] KLR 240,while citing Reg vs. Secretary of State for the
Environment Ex Parte NottinghamShire Country Council [1986] AC:
“A power which is abused should be treated as a power which has not been lawfully exercised…Thus
the courts role cannot be put in a straight jacket. The courts task is not to interfere or impede
executive activity or interfere with policy concerns, but to reconcile and keep in balance, in the
interest of fairness, the public authorities need to initiate or respond to change with the legitimate
interests or expectation of citizens or strangers who have relied, and have been justified in relying
on a current policy or an extant promise. As held in ex parte Unilever Plc (supra) the Court is there to
ensure that the power to make and alter policy is not abused by unfairly frustrating legitimate
individual expectations. It is no defence for a public body to say that it is in this case rational to
change the tariffs so as to enhance public revenue. The change of policy on such an issue must a
pass a much higher test than that of rationality from the standpoint of the public body. The
unfairness and arbitrariness in the case before me is so clear and patent as to amount to abuse of
power which in turn calls upon the courts intervention in judicial review. A public authority must not
be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as
has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put
the need for the courts intervention beyond doubt in the ex-parte Preston where he stated the
principle of intervention in these terms: “I must make clear my view that the principle of fairness has
an important place in the law of judicial review: and that in an appropriate case, it is a ground upon
which the court can intervene to quash a decision made by a public officer or authority in purported
exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the
House of Lords in Reg vs. Inland Revenue Commissioners, ex-parte National Federation of Self
Employed and Small Business Ltd [1982] AC 617 that a claim for judicial review may arise where the
Commissioners have failed to discharge their statutory duty to an individual or have abused their
powers or acted outside them and also that unfairness in the purported exercise of a power can be
such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness
is analytically within or beyond the power conferred by law: on either view, judicial review must
reach it. Lord Templeman reached the same decision in the same case in those helpful words:
“Judicial review is available where a decision making authority exceeds its powers, commits an error
of law commits a breach of natural justice reaches a decision which no reasonable tribunal could
have reached or abuses its powers.” Abuse of power includes the use of power for a collateral