RECONCILING THE CONSTITUTION AND COMMON LAW: A CALL TO TRANSFORM JUDICIAL REVIEW IN KENYA
Keywords:
RECONCILING, CONSTITUTION, COMMON LAWAbstract
The Constitution of Kenya 2010 ushered in an era of transformation by presenting a paradigm shift in the manner courts should approach judicial review. However, this shift has not been appreciated or has been resisted by many in the Judiciary who still follow the old common law doctrines that limit judicial review to matters of procedure while shying off merits. This is evident in jurisprudence from the High Court where judges have declined to acknowledge this fundamental shift in approach to judicial review.iWhereas Articles 23(1), 47 and 165(3) and the Fair Administrative Act 2015 have revised the principles that guide judicial review in Kenya, the judiciary has failed to grasp this shift and is still steeped in common law jurisprudence. The first part of this paper discusses the various bases of judicial review in the constitution of Kenya 2010.The second part explores Kenyan case law to illustrate resistance by showing that definitive features of common law judicial review remain untouched with concern being restricted to procedure as opposed to merits of the decision. The third part explores case law to illustrate that even tentative but progressive shift of judicial review as contemplated by the Constitution is appreciated by an insignificant minority and largely faces resistance from those schooled under common law doctrine.
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i
For example in the case of Republic v Public Procurement Administrative Review Board & 2 Others Ex-Parte
Seven Seas Technologies Limited, Misc.Civil Application no 168 of 2014 and Kevin K.Mwiti & Others v Kenya
School of Law & 2 Others, Petition 377, 395 & JR of 2015. In the two decisions, the courts have insisted that
Judicial Review should limit itself to procedure and nothing more.
ii
For example in the case of Republic v Public Procurement Administrative Review Board & 2 Others Ex-Parte
Seven Seas Technologies Limited, Misc.Civil Application no 168 of 2014 and Kevin K.Mwiti & Others v Kenya
School of Law & 2 Others, Petition 377, 395 & JR of 2015. In the two decisions, the courts have insisted that
Judicial Review should limit itself to procedure and nothing more.
iiiArticle 165 (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the
determination of—(i) the question whether any law is inconsistent with or in contravention of this Constitution;
iv Article 165(d)(ii) the question whether anything said to be done under the authority of this Constitution or of
any law is inconsistent with, or in contravention of, this Constitution;
v Article 165(d) (iii) any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the levels of government;…
vi (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has
been denied, violated, infringed or threatened;
vii [1948] 1 KB 223, [1947] EWCA Civ1.
viii [2012] eKLR.
ix [2016] eKLR.
x
[2015] eKLR Para 34.
xi [2016] eKLR.
xii [2015] eKLR.
xiii [2015] eKLR Paras 26–27s.
xiv Article 165(6).
xv Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR
at para 359 “This principle is enshrined in our Constitution (Articles 23(3)(d) and 165(3)(d)).”
xvi
[2016] eKLR
xvii
[2015] eKLR
xviii
[2016] eKLR
xix
ibid
xx
[2016] eKLR.
xxi
[2016] eKLR.
xxii “The Incomplete Transformation of Judicial Review,” A Paper presented at the Annual Judges’ Conference
2014: Judicial Review in Transformative Constitutions: The Case of the Kenya Constitution, 2010, Safari Park
Hotel, August 19, 2014.
xxiii [2013] eKLR
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