110. We are therefore of the view that the decision in Municipal Council of Mombasa vs. Republic & Umoja
Consultants Ltd (supra) is still relevant in so far as it held that:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the
Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether
the persons affected by the decision were heard before it was made and whether in making the decision the
decision maker took into account relevant matters or did take into account irrelevant matters…The court
should not act as a Court of Appeal over the decider which would involve going into the merits of the
decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
111. The House of Lords in the case of Council of Civil Service Unions vs. Minister of State for Civil Service (1984)
3 All ER 935, rationalized the grounds of judicial review and held that the basis of judicial review could be
highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality
as a ground of judicial review means that the decision maker must understand correctly the law that
regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of
law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith,
fettering discretion, unauthorized delegation, failure to act etc., fall under the heading “illegality”. Procedural
impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural
justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to
give reasons etc.
Irrationality as fashioned by Lord Diplock in the
Council of Civil Service Unions
Case takes the form of Wednesbury unreasonableness explicated by Lord Green and applies to a decision
which is so outrageous in its defiance to logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it.
112. However, as we have stated hereinabove, like all legal remedies, judicial review continues to enlarge the
categories of its sphere of influence.
113. There is no dispute that judicial review is a constitutional remedy and has its basis in the supervisory
jurisdiction of the Court which has always been enshrined in all the previous constitutions in Kenya. It is,
therefore, in our view not entirely correct to argue that it is with the Constitution of Kenya, 2010 that judicial
review gained constitutional basis. The said supervisory jurisdiction is specifically anchored in Article 165(6)
of the Constitution and it is a power vested in the Court in order to ensure the subordinate courts, tribunals,
persons, body or authority exercise their judicial or quasi-judicial function within the legal bounds. But our
Constitution has a fundamental phenomenon in that judicial review has been specifically listed in Article
23(3)(f) as one of the reliefs a court may grant in a constitutional petition where it is alleged that a right or
fundamental freedom has been denied, infringed, violated or is threatened to be violated. We are alive to
the fact that before Article 23(3) (f) of the Constitution was enacted by the people of Kenya, judicial opinion
was divided as to whether judicial review remedies could be combined with other reliefs such as injunction
and constitutional declarations. But that perhaps was due to the level of the development of the judicial
review jurisprudence in Kenya; it had been left behind by development in England on the subject, and
doubtless, Article 23(3) of the Constitution was speaking to that jurisprudence and it provided a complete
departure therefrom.
114. In that context, a proceeding under Article 22 of the Constitution for enforcement of the Bill of Rights must be
understood to take the form of an inquiry which entails intense and in-depth investigation by the Court of the
matters complained of. In the said proceeding, evidence is called for and admitted through elaborate