control of public power including judicial review of all legislation and conduct inconsistent with the
Constitution. Powers that were previously regulated by the common law under the prerogative and the
principles developed by the courts to control the exercise of public power are now regulated by the
Constitution… Whilst there is no bright line between public and private law, administrative law, which
forms the core of public law, occupies a special place in our jurisprudence. It is an incident of the separation
of powers under which courts regulate and control the exercise of public power by the other branches of
government. It is built on constitutional principles which define the authority of each branch of government,
their inter-relationship and the boundaries between them. Prior to the coming into force of the interim
Constitution, the common law was “the main crucible” for the development of these principles of
constitutional law.[71] The interim Constitution which came into force in April 1994 was a legal watershed. It
shifted constitutionalism, and with it all aspects of public law, from the realm of common law to the
prescripts of a written constitution which is the supreme law. That is not to say that the principles of
common law have ceased to be material to the development of public law. These well-established principles
will continue to inform the content of administrative law and other aspects of public law, and will contribute
to their future development. But there has been a fundamental change. Courts no longer have to claim space
and push boundaries to find means of controlling public power. That control is vested in them under the
Constitution which defines the role of the courts, their powers in relation to other arms of government, and
the constraints subject to which public power has to be exercised. Whereas previously constitutional law
formed part of and was developed consistently with the common law, the roles have been reversed. The
written Constitution articulates and gives effect to the governing principles of constitutional law. Even if the
common law constitutional principles continue to have application in matters not expressly dealt with by the
Constitution, (and that need not be decided in this case) the Constitution is the supreme law and the
common law, in so far as it has any application, must be developed consistently with it, and subject to
constitutional control.”
106. On our part we wish to state that the view taken by the Constitutional Court of South Africa in the above
case rings true in our current Constitutional dispensation.
107. According to Judicial Review Handbook, 6th Edition by Michael Fordham at page 5, judicial review is a
central control mechanism of administrative law (public law), by which the judiciary discharges the
constitutional responsibility of protecting against abuses of power by public authorities. It constitutes a
safeguard which is essential to the rule of law: promoting the public interest; policing parameters and duties
imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are
accountable to law and not above it; and protecting the rights and interests of those affected by the exercise
of public authority power.
108. It was however submitted by Mr Ahmednasir that judicial review remedies presently have a constitutional
basis in Kenya by virtue of Articles 10, 25, 27, 47 and 50 of the Constitution and that the conventional
grounds for judicial review take a secondary role after the constitutional benchmarks and therefore courts
should be prepared to downgrade the conventional grounds of judicial review. The Constitution of Kenya,
2010, according to him, is the game changer in judicial review and the Court can now review the merits of a
decision by a quasi-judicial tribunal such as the Respondent, especially where there has been an allegation
of breach of rights by the tribunal. We with due respect beg to differ. Even the position taken by the