96. In determining the issues raised herein we shall therefore be alive to the foregoing aspirations and give
effect to them as far as the law permits and we shall equally take into account the provisions of Article 53(2)
of the Constitution to the effect that a child’s best interests are of paramount importance in every matter
concerning the child.
97. From the pleadings, submissions of parties and the tempo with which counsel presented their oral
arguments, undoubtedly, the real controversy in these proceedings may be summed up in the following
issues:
a)
Whether the Court in the exercise of judicial review jurisdiction should
entertain merit review of the decision complained of. This encompasses other
strands such as; the scope of judicial review jurisdiction and the test which an
applicant must satisfy in order to receive the remedy of judicial review;
b)
Whether the Ex parte Applicant was denied an opportunity to be
heard. Under this issue we shall also determine whether the Respondent
decided the review before it on un-pleaded points or issues;
c)
Whether the Respondent exceeded its jurisdiction and acted ultra
vires. Here, the question of jurisdiction of the Respondent under the Public
Procurement and Disposal Act will be discussed too; and
d)
e)
Ultimately, whether the orders sought should issue.
Who should meet the costs of the application?
Merit Review in Judicial Review
98. Mr. Ahmednasir Abdulahi, counsel for the Ex parte Applicant, made robust submissions that the scope and
exercise of judicial review jurisdiction should be seen within the broader constitutional structure of our nation
rather than from the point of view of the narrow traditional grounds of common law. The argument is
attractive as well as of great jurisprudential value and likewise, it should receive a more robust discussion
within the judicial, legal as well as other disciplines in real practical and scholarly tones. This issue bears
preliminary importance, as it will cut the path we shall follow in determining the issues at hand. We propose
to settle it first. We are fully aware of the dynamic nature of the law; it is always speaking and develops as
new legal problems emerge in society or the old ones metamorphose into complicated and coloured
problems. As was held in R vs. Panel on Take Over and Mergers Ex Parte Datafin [1987] QB 815, judicial
review is developing fast and extending itself beyond the traditional targeted areas and grounds.
99. This is a position which this Court was well aware of even before the advent of the current Constitution. The
reason for saying this is due to the recognition that the grounds upon which the Court exercises its judicial
review jurisdiction are incapable of exhaustive listing. As was stated by Nyamu, J (as he then was)
in Republic vs. The Commissioner of Lands Ex parte Lake Flowers Limited Nairobi HCMISC. Application No.
1235 of 1998:
“Availability of other remedies is no bar to the granting of the judicial review relief but can however be an
important factor in exercising the discretion whether or not to grant the relief.....The High Court has the
same power as the High Court in England up to 1977 and much more because it has the exceptional heritage