affidavits and other mediums authorized by the Court. And even when judicial review is one of the reliefs
sought in a proceeding under Article 22 of the Constitution, the Court is not prohibited from carrying out a
merit review of the impugned decision which violated, infringed or threatens to violate a right or fundamental
freedom of a person. Therefore, the nature of the said proceeding is a constitutional petition and is squarely
governed by the provisions of the Constitution and specifically Chapter Four, which requires proper inquiry to
be made by the Court in order to determine whether a right or fundamental freedom of a person has been
violated, infringed, denied or threatened to be infringed, and fashion the appropriate remedy thereto. For
instance, a Court of law is under a constitutional obligation in Article 20 of the Constitution to develop the law
to the extent it does not give effect to a right and to adopt the interpretation that most favours the
enforcement of a right. These explanations help an understanding that by its very nature, a constitutional
petition allows merit review of a decision of a tribunal if such decision is said to have violated a right or the
Constitution. And it is now generally stressed within the legal, judicial as well as scholarly circles that in all
cases raising human rights issues, proportionality is the appropriate standard of review. Much debate has
been undertaken on that subject but the understanding which seems to emerge is that proportionality is
more precise, fastidious and more apt to gauge decisions by state organs and administrative bodies which
violate human rights or are inconsistent with the Constitution. In Kenya, Courts in handling such decisions in
constitutional petitions have utilized the test of proportionality in addition to the traditional grounds of
review. This position is the one prevailing in England as was highlighted by Lord Steyn in R (Daly) vs.
Secretary of State For Home Department (2001) 2 AC 532 where it was held that: (1) Proportionality may
require the reviewing Court to assess the balance which the decision maker has struck, not merely
to see whether it is within the range of rational or reasonable decisions; (2) Proportionality test may
go further than the traditional grounds of review in as much as it may require attention to be directed
to the relative weight accorded to interests and considerations; and (3) Even the heightened scrutiny
test is not necessarily appropriate to the protection of human rights.
115. A further illuminating discourse on heightened judicial scrutiny in the human rights arena is found in Republic
vs. The Commissioner of Lands Ex Parte Lake Flowers Limited (supra).
116. However, it is our view that the common law and practice by the High Court of England on judicial review still
recognize and apply the conventional grounds for judicial review except within enlarged categories of
intervention by the Court. In Kenya such expansion on a case to case basis is permitted by the Constitution
as a way of ensuring a complete remedy is availed by the Court as a Court of law. Matters of fair trial and
administrative action under Article 47 and 50 of the Constitution are proper grounds for judicial review and
are a codification of what is generally known as principles of natural justice.
117. In our view Article 47 of the Constitution is now emphatic on the fairness of administrative action. The
purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their
duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision
making, and thereby ensure for the citizen civilised governance, by holding the public authority to the limit
defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of
problems. The focus of cases may range from matters of grave public concern to those of acute personal
interest; from general policy to individualised discretion; from social controversy to commercial self-interest;
and anything in between. As a result, judicial review has significantly improved the quality of decision
making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct
of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and