24. In the applicant’s view, the Board gets its mandate from the pleadings filed and the grounds cited for
review. However, it contended that in this case, the Board seems to have formulated its own issues on
matters which had not been pleaded by the parties and decided the applications before it on that
basis. Given the circumstances of the case, the Board therefore reached the decision first then formulated
reasons thereafter to support their conclusions and this is not the natural course of justice.
25. As the decision of the Board was reached on un-pleaded issues and was not based on any evidence of the
parties, it was submitted that it was tainted by lack of logic bringing it within the test in the Wednesbury
Unreasonableness.
26. All documents by the PE were placed before the Board and the advocate for the PE reminded the Board to
look at and consider those documents but it chose not to, which makes its decision unreasonable. All the
above matters complained of show that the Board was out to find an opportunity to disqualify the Ex parte
Applicant.
27. With respect to the scope of court’s jurisdiction in judicial review, Mr. Ahmednasir contended there is a
paradigm shift in judicial review based on the fact that judicial review remedies now have constitutional
underpinning and must be seen within the constitutional precincts. To the learned counsel, Article 47 of the
Constitution is the game changer and deals with administrative actions by all public organs including the
Board. This, according to him, raises the bar in judicial review and is in addition to or over and above the
traditional or conventional grounds for judicial review as formulated within the common law tradition.
28. In learned counsel’s view, the doctrine of natural justice has attained constitutional embodiment and Article
25 of the Constitution prohibits any derogation from the right to fair trial. Article 50 of the Constitution again
reinforces the right of parties to have their disputes resolved in a fair and public hearing before a court or
tribunal. These new dimensions therefore require a heightened judicial review scrutiny by the court when
considering a decision by a tribunal.
Learned counsel argued that this is the time to downgrade the
conventional grounds for judicial review in favour of the constitutional benchmarks. According to him, based
on Article 27 of the Constitution, merits of the decision of the tribunal can now be reviewed in a judicial
review because the rights of the parties are involved. Similarly, Article 10 on National Values and Principles
of Governance also come into play as all state organs including a tribunal which is exercising public judicial
or quasi-judicial power are bound by the said Article. In support of this position learned counsel relied
oninter alia the decision of the Constitutional Court of South Africa in Pharmaceutical Manufacturers
Association of South Africa & Another vs. Minister of Health Case CCT 31/99, and submitted that that controls
of exercise of judicial power should be as encapsulated in the Constitution which position, in his view,
obtains in Kenya.
29. Based on the foregoing the Court was urged to quash the decision of the Board.
The 1st Interested Party’s Case
30. Since the 1st Interested Party supported the ex parte applicant’s case, we intend to deal with its case before
dealing with the respondent’s case.
31. The 1st Interested Party filed a Replying Affidavit with annexures. It also filed written submissions and made
oral submissions through its learned counsel, Mr. Kiragu. After outlining the philosophy and the background