of a written Constitution and the doctrines of the common law and equity in so far as they are applicable
and the Courts must resist the temptation to try and contain judicial review in a straight
jacket.......Although judicial review has been bequeathed to us with defined interventions namely illegality,
irrationality and impropriety of procedure the intervention has been extended using the principle of
proportionality.....The court will be called upon to intervene in situations where authorities and persons act
in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take
into account irrelevant considerations or act contrary to legitimate expectations.......Even on the important
principle of establishing standing for the purposes of judicial review the Courts must resist being rigidly
chained to the past defined situations of standing and look at the nature of the matter before
them............Judicial review is a tool of justice, which can be made to serve the needs of a growing society on
a case-to-case basis.........The court envisions a future growth of judicial review in the human rights arena
where it is becoming crystal clear that human rights will evolve and grow with the society.”
100. Similarly in Bahajj Holdings Ltd. vs. Abdo Mohammed Bahajj & Company Ltd. & Another Civil Application
No. Nai. 97 of 1998 the Court of Appeal held that the limits of judicial review continue expanding so as to
meet the changing conditions and demands affecting administrative decisions while in Re: National Hospital
Insurance Fund Act and Central Organisation of Trade Unions (Kenya), Nairobi HCMA No. 1747 of 2004
[2006] 1 EA 47, Nyamu, J (as he then was) held the view that while it is true that so far the jurisdiction of a
judicial review court has been principally based on the “3 I’s” namely illegality, irrationality and impropriety of
procedure, categories of intervention by the Court are likely to be expanded in future on a case to case
basis.
101. Again in Kuria& 3 Others vs. Attorney General [2002] 2 KLR 69 the Court expressed itself as follows:
“So long as the orders by way of judicial review remain the only legally practicable remedies for the control
of administrative decisions, and in view of the changing concepts of good governance which demand
transparency by any body of persons having legal authority to determine questions affecting the rights of
subjects under the obligation for such a body to act judicially, the limits of judicial review shall continue
extending so as to meet the changing conditions and demands affecting administrative decisions...... This
therefore implies that the limits of judicial review should not be curtailed, but rather should be nurtured
and extended in order to meet the changing conditions and demands affecting the decision-making process
in the contemporary society. The law must develop to cover similar or new situations and the application for
judicial review should not be stifled by old decisions and concepts, but must be expansive, innovative and
appropriate to cover new areas where they fit. The intrusion of judicial review remedies in criminal
proceedings would have the effect of requiring a much broader approach, than envisaged in civil law.”
102. This is in tandem with the holding in Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 that:
“… like the Biblical mustard seed which a man took and sowed in his field and which is the smallest of all
seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air
came and sheltered in its branches, judicial review stems from the doctrine of ultra vires and the rules of
natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of
procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the
greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and