arbitrariness. It has been said that the growth of judicial review can only be compared to the never-ending
categories of negligence after the celebrated case of Donoghue vs. Stephenson in the last century…”
103. And so, one understands what the Constitution of Kenya, 2010, especially Article 259 meant when it placed
a constitutional obligation on courts of law to develop the law so as to give effect to its objects, principles,
values and purposes of the Constitution. We will, therefore, consider the argument by Mr. Ahmednasir that
judicial review should now involve heightened scrutiny of the decisions made by judicial or quasi-judicial
bodies in a more public-spirited approach.
The Constitution as self-reinforcing
104. It bears repeating what counsel for the Applicant Mr Ahmednasir submitted and as was captured by the
Court. Learned Counsel started by stating that there is a paradigm shift in judicial review such that judicial
review remedies have constitutional basis now. It must be seen, therefore, within the constitutional
precincts. Article 47 of the Constitution of Kenya, 2010 is the game changer and deals with Administrative
Action by all public organs including the Board. In learned counsel’s view, that raises the bar in judicial
review in addition to or over and above the traditional or conventional grounds for judicial review as
formulated within the common law tradition.
105. Learned Counsel continued that natural justice has attained constitutional embodiment and Article 25 of the
Constitution prohibits any derogation from the right to fair trial. Article 50 of the Constitution again reinforces
the right of parties to have their disputes resolved in a fair and public hearing before a court or
tribunal. These new dimensions require a heightened judicial review scrutiny by the court when considering
a decision by a tribunal. Counsel was of the view that this is the time to downgrade the conventional
grounds for judicial review in favour of the constitutional benchmarks. According to him, merits of the
decision of the tribunal can now be reviewed in a judicial review because the rights of the parties are
involved.
Article 27 of the Constitution relates to rights of parties and once they are so involved, merit
review is permissible. Article 10 on National Values and Principles of Governance also kicks in as all state
organs including a tribunal which is exercising public judicial or quasi-judicial power are bound by the said
Article. He posits, therefore, that controls of exercise of judicial power should be as encapsulated in the
Constitution. He also stated that the same position obtains in Kenya. Counsel cited a plethora of judicial
authorities in the list of authorities filed on behalf of the Ex parte Applicant in support of his avowed position.
Much reference was, however, made to the case of Pharmaceutical Manufacturers Association of South
Africa & Another vs. Minister of Health (supra). In that case, the Constitutional Court of South Africa
(Chaskalson, P) expressed itself as follows:
“The 1961 Constitution provided in specific terms that Parliament was supreme and that no court had
jurisdiction to enquire into or pronounce upon the validity of an Act of Parliament, other than one relating
to the entrenched language rights. The 1983 Constitution also entrenched the supremacy of Parliament,
though it made provision for courts to have jurisdiction in respect of questions relating to the specific
requirements of the Constitution. This, however, has been fundamentally changed by our new constitutional
order. We now have a detailed written Constitution. It expressly rejects the doctrine of the supremacy of
Parliament, but incorporates other common law constitutional principles, and gives them greater substance
than they previously had. The rule of law is specifically declared to be one of the foundational values of the
constitutional order, fundamental rights are identified and entrenched, and provision is made for the