certiorari is available where breach of rules of natural justice is proven. Having said so, we find it
strange that the learned judge withheld this relief from the appellant despite agreeing with the
appellant’s contentions that regulation 26 of the Judicial Service Commission Regulations had been
flouted… The appellant’s grievance in the judicial review proceedings was not that reasons had not
been given by the respondent for his dismissal, but that a wrong process had been employed to
relieve him from his employment service with the respondent. In other words, he alleged excess
jurisdiction by a public body which is a criteria for one to seek the relief of judicial review by way of
certiorari. What the appellant moved to attack was the process leading to the decision reached and
not the merits of the decision reached. He should have therefore been accorded the relief sought.”
76. In my view a relief cannot be denied solely on the basis that the decision sought to be
quashed has been undertaken and that the quashing thereof would lead to difficulties.
Though that is factor to be considered in deciding whether or not to exercise the undoubted
discretionary jurisdiction, to hold that in all cases where hardship is likely to result from the
grant of otherwise merited reliefs would be to grant to administrative bodies and authorities
blank cheques as it were to disobey statutory provisions with impunity and make decisions
which are otherwise illegal.
77. As was held in Resley vs. The City Council of Nairobi [2006] 2 EA 311:
“In this case there is an apparent disregard of statutory provisions by the respondent, which are of
fundamental nature. The Parliament has conferred powers on public authorities in Kenya and has
clearly laid a framework on how those powers are to be exercised and where that framework is
clear, there is an obligation on the public authority to strictly comply with it to render its decision
valid…The purpose of the court is to ensure that the decision making process is done fairly and justly
to all parties and blatant breaches of statutory provisions cannot be termed as mere technicalities by
the respondent. That the law must be followed is not a choice and the courts must ensure that it is
so followed and the respondent’s statements that the Court’s role is only supervisory will not be
accepted and neither will the view that the Court will usurp the functions of the valuation court in
determining the matter. The Court is one of the inherent and unlimited jurisdiction and it is its duty
to ensure that the law is followed…If a local authority does not fulfil the requirements of law, the
Court will see that it does fulfil them and it will not listen readily to suggestions of “chaos” and even
if the chaos should result, still the law must be obeyed. It is imperative that the procedure laid down
in the relevant statute should be properly observed. The provisions of the statutes in this respect are
supposed to provide safeguards for Her Majesty’s subjects. Public Bodies and Ministers must be
compelled to observe the law: and it is essential that bureaucracy should be kept in its place.”
78. In High Court in Misc. Application No.220 of 2005 in the matter of Republic vs. Evans Gicheru
(Hon) & 3 Others exparte Joyce Manyasi it was held that (i) the remedy of judicial review is
not concerned with the merits or demerits of the decision in respect of which the
application for Judicial review is made, but rather, it is concerned with the decision making
process itself, and if that process is flawed, the decision reached is equally flawed and will
not be allowed to stand; (ii) that where a regulation is couched in mandatory terms, it
demands strict compliance. Non-compliance with the spirit and letter of such a regulation is
fatal to any action taken in pursuance thereof.
79. However, having found that the appointment of the 2nd to the 7th interested parties was
tainted with illegality in that they were appointed outside the statutory timelines provided
under section 6B of the Kenya Information and Communications (Amendment) Act, 2013, it