decision on facts of course taking into account that it had no advantage of seeing the witnesses and hearing
them testify. Whereas a decision may properly be overturned on an appeal it does not necessarily qualify as
a candidate for judicial review. In EAST AFRICAN RAILWAYS CORP. VS.ANTHONY SEFU DAR-ESSALAAM HCCA NO. 19 OF 1971 [1973] EA 327, it was held:
“It has been recognized for a long time past, that courts are empowered to look into the question whether
the tribunal in question has not stepped outside the field of operation entrusted to it. The court may declare
a tribunal’s decision a nullity if (i) the tribunal did not follow the procedure laid down by a statute on
arriving at a decision; (ii) breach of the principles of natural justice; (iii) if the actions were not done in good
faith. Otherwise if none of these errors have been committed, the court cannot substitute its judgment for
that of an authority, which has exercised a discretionary power, as the tribunal is entitled to decide a
question wrongly as to decide it rightly..... And so have the courts repeatedly held that they have an inherent
jurisdiction to supervise the working of inferior Courts or tribunals so that they may not act in excess of
jurisdiction or without jurisdiction or contrary to law. But this admitted power of the Superior Court’s to
supervise inferior Courts or tribunals is necessarily delimited and its jurisdiction is to see that the inferior
court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done
within that jurisdiction, for in so doing it would, itself, in turn transgress the limits within which its own
jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of
the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of
the law in the course of its exercise...... Even if it were alleged that the Commission or authorized officer
misconstrued the provision of the law or regulation, that would still not have entitled the court to question
the decision reached. If a magistrate or other tribunal has jurisdiction to enter on the enquiry and to decide
a particular issue, and there is irregularity in the procedure, he does not destroy his jurisdiction to go
wrong. If he has jurisdiction to go right he has jurisdiction to go wrong.Neither an error in fact nor an error
in law will destroy his jurisdiction.......Where the proceedings are regular upon their face and the inferior
tribunal had jurisdiction, the superior Courts will not grant the order of certiorari on the ground that the
inferior tribunal misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter,
it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal
evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction.”
In Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others, Civil Application No. 307/2003,
Omolo JA stated as follows;
“The courts expressly recognize that they are manned by human beings who are by nature fallible, and that
a decision of a court may well be shown to be wrong either on the basis of existing law or on the basis of
some newly discovered fact which, had it been available at the time the decision was made, might well have
made the decision go the other way.”
144. Whereas in some quarters it may be construed that the Court of Appeal by employing such a flamboyant
language was encouraging impunity on the part of judicial officers, what we understand the Court of Appeal
to be saying is that the mere fact that a judicial officer errs in his or her judgement does not necessarily
follow that the said officer acted without or in excess of jurisdiction. In other words, the issue for judicial
review is not whether the decision is right or wrong, nor whether the Court agrees with it, but whether it was
a decision which the authority concerned was lawfully entitled to make since a decision can be lawful without
being correct. The Courts must be careful not to invade the political field and substitute their own judgement