The new constitutions of Kenya has establish independent judiciaries with the crucial power of judicial review. It’s the judiciary’s solemn duty to oversee state organs, ensuring they adhere to constitutional limits, prevent overreach, and act in the public’s best interest. This duty extends to ensuring public officers’ conduct, actions, and decisions align with the Constitution and the law.
“Judicial review varies across jurisdictions. It encompasses the Court’s power to assess the constitutionality of legislative, executive, and administrative actions and either invalidate or uphold them. It involves the scrutiny of government organs to maintain the rule of law. In essence, judicial review empowers superior courts to supervise lower courts, tribunals, and administrative bodies to ensure legal and proper decision-making. This process can result in various remedies, such as mandatory orders, prohibiting orders, quashing orders, declarations, or damages.”
“In Kenya, the judiciary has wielded significant control through judicial review over government and public functions for years. Judicial review applies to public bodies in public law matters, provided two conditions are met: the entity in question must be a public body subject to judicial review, and the issue must pertain to public law principles, not private law rights. Additionally, factors like the nature of the body’s function, statutory recognition, and its integration into governmental regulation can indicate its susceptibility to judicial review.
Despite the judiciary’s commendable role in reviewing civil service matters, it cannot completely replace public authority discretion. Courts should apply an objective standard that allows decision-makers a reasonable range of choices. Courts may intervene if public authorities breach rules or procedural justice, impose disproportionate penalties, issue illegal or irrational orders, or engage in biased, malicious, or arbitrary conduct.”
