Transformation Of Judicial Review In Kenya Under The 2010 Constitution

Abstract

As the topic suggests, Transformation of Judicial Review in Kenya under the 2010 Constitution is a discourse on the changed approach to judicial review arising from the promulgation of the Constitution of Kenya, 2010. The research is informed by the problem that despite the promulgation of the Constitution, judicial review within the Kenyan legal system has not yet fully transformed in line with the Constitution. This incomplete transformation has arisen partly from the failure of courts to completely orientate the practice and conceptual approaches to judicial review to the dictates of the current Constitution. The situation has resulted into confusion in the administration of judicial review by Kenyan courts some six years into the life of the current Constitution. Additionally, the insistence on technical procedure, limited scope of review, few remedies and strict distinction between public and private exercise of power still remains a barrier to the full transformation of judicial review. This research therefore sets out to: investigate the extent to which the constitution has transformed judicial review and how this is reflected in reality as evidenced by court decisions; examine how the continuation of judicial review under the common law affects the transformation of judicial review under the Constitution in Kenya; and suggest a new approach to judicial review anchored on constitutional ideals. The research is set out in some four chapters. Chapter 1 ‘Introduction to Transformation of Judicial Review in Kenya’ discusses the problem statement, objectives, justification of research, literature review, statement of the problem and research questions, hypothesis and research methodology. Chapter 2 ‘Transformation of Judicial Review in Kenya’ discusses how the Constitution has transformed judicial review and the extent to which this is reflected in judicial decisions. The chapter also highlights the ways in which the continuation of judicial review under the common law affects the transformation of judicial review as envisaged by the Constitution in Kenya. Chapter 3 ‘Judicial Review in Kenya Post-2010: Grounds, Procedures and Remedies’ discusses new approaches to judicial review anchored on constitutional ideals and suggests some new grounds, procedures and remedies of judicial review. Lastly, Chapter 4 ‘Findings, Conclusions and Recommendations’, revisits the hypothesis and problem statement, and provides a summary of the findings. Finally, the chapter recommends reforms and suggests further research.