otherwise of a joint venture, thereby creating a legal obligation on the Respondent to give a determination of
the issues. That fact was aptly captured in the record of proceedings before the Respondent tribunal. In
accordance with the request by the Respondent made pursuant to Regulation 74(3) of the Regulations, the
1st Interested Party supplied the relevant documents stated therein for review by the Board. The other
parties in the Request for Review also filed their respective responses and skeleton submissions. During
the hearing of the Requests for Review, the 2nd and 3rd interested parties raised several issues touching on
alleged breach of the Act and the Regulations made pursuant thereto and all of which, according to the
Respondent are clear on the face of the Request for Review.
61. The second category of grounds, it was contended is an invitation to this Honourable Court to carry out merit
review of the decision of the Respondent tribunal. The Respondent relied on the free online Black’s Law
Dictionary (http://thelawdictionary.org/merits-2/)] for the definition of “merit” and cited several judicial
authorities which preclude the Court to carry out a merit review in judicial review such as Republic vs. Kenya
Revenue Authority Ex Parte Yaya Towers Limited [2008] eKLR.
62. Similarly the High Court in Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary,
Ministry of Nairobi Metropolitan Development & Another [2014] eKLRand Municipal Council of Mombasa vs.
Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 echoed the above position of law. As such,
judicial review proceedings do not deal with the merits of the decision but the decision making process. The
procedure for Request for Review is provided for in law and the exercise of jurisdiction by the Respondent
has statutory anchoring as well. To that extent the Respondent averred that it had jurisdictional competence
to determine the Requests for Review.
63. To the Respondent, what the ex-parte Applicant is really trying to do in this application is to have a hearing
on the merits of the decision of the Respondent, yet this Honourable Court has no such jurisdiction. To it, it
(the Respondent) made a determination only on issues that had been presented before it hence the claim
that the Respondent considered extraneous matters is baseless and this is confirmed by reference to the
record of the proceedings and decision of the Respondent where it is stated that the Board read all the
documents submitted by all the parties to the two requests for review and having considered the oral and
written submissions lodged with the Board, from which it framed the issues for determination. From the
aforesaid, all the Parties were given a chance to respond to the pleadings and issues arising from the
Requests for Review before the Board. In its view, issues for determination not only arise from pleadings but
from evidence adduced, and submissions made by respective parties and the Respondent was, therefore,
legally and duty bound to frame questions for determination based on the issues so arising. The Respondent
associated itself with Shields J’s decision in Devjibhai Bhimji Sanghani & Another vs. National Bank of Kenya
Ltd [1981] eKLR.
64. To the Respondent the ground of unreasonableness as formulated in Wednesbury unreasonableness" does
not apply here because the all the orders made by the Respondent were premised on a reasoned decision
and were well within the mandate of the Respondent provided in Section 98 of the Act and further relied
on Korir, J’s decision in Republic vs. Kenya Power & Lighting Company Ltd & Another [2013]
eKLR and on the Wednesbury Corporation case (supra) to the effect that the law places the onus on the exparte Applicant to demonstrate that the decision of the Respondent was so absurd that no sensible person
could ever dream that it lay within the powers of the authority. On the contrary, there was a clear basis for
the decision of the Respondent. The application, it was contended should fail on that score. Reliance was
also placed on Korir, J’s decision in Republic vs. Public Procurement Administrative Review Board &