Prior to the promulgation of the Constitution of Kenya, 2010 judicial review took place along the common law grounds mainly derived from the British legal system such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice. Judicial Review Under the Constitution of Kenya 2010 This duty and jurisdiction of the Judiciary is memorably etched in the words of Marshall J in, “It is, emphatically, the province and duty of the judicial department to say what the law is”. In although there is no express provision in the American Constitution for judicial review, the Supreme Court made it clear that it had the power of judicial review. The other foundation of judicial review is based upon the role of the court as the guardian of the rule of law. Ultra vires has been described as ‘the juristic basis of judicial review This theory (‘ultra vires’) elevates the power of Parliament over the judiciary.
One theoretical foundation of judicial review is from the British legal system which we have largely inherited, the courts’ judicial review jurisdiction is justified by the notion that this procedure merely enforces the will of Parliament, by ensuring that public bodies do not exceed the powers given to them by the legislature. In this case, judicial review means that Courts of law have the power to test the validity of legislative as well as other governmental action with reference to the provisions of the constitution. However, judicial review has a more technical significance in public law, founded on the concept of limited government. Literally the concept of judicial review means revision of the decree or sentence of an inferior court by a superior court. The Meaning and Origin of Judicial Review That the respondent’s source of power, nature of duty and its impact did not amount to performance of public functions.This brief article however examines the change in the law of judicial review since his application for judicial review was dismissed by the High Court of Kenya in Republic v Kenya Cricket Association ex parte Maurice Odumbe eKLR. Odumbe applied for judicial review in an attempt to salvage his career from the lengthy ban.The High Court of Kenya declined his application, reasoning that in disciplining Odumbe, they (ICC and KCA) had not performed any duty of a public nature nor were the consequences of the performance of their duty of a public nature. In an investigation authorized by the International Cricket Committee (ICC) and conducted by the Kenya Cricket Association (KCA), Odumbe was ‘found’ guilty of having ‘inappropriate conduct’ with a bookmaker and banned from the game for five years. The recent appearance of Maurice Odumbe, Kenya’s cricket legend, on the Television Show Jeff Koinange Live (#JKL) has renewed the interest of the public in his plight.
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