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This statement is a correct observation of the prevailing circumstances. This is because in the
first instance parliamentary safeguards or mechanisms are ineffective.
Parliament delegates legislative power to specific persons or bodies, for example
governments, ministers, professional bodies, local authorities and statutory bodies.
Parliament prescribes the scope and procedure of law making. The delegates can only
exercise their legislative power in accordance with such scope and procedure.
The enabling or Parent Act may require or insist that the draft legislation be circulated to
interested parties of comments for example by-laws.
The enabling or Parent Act may require or provide that the rules and regulations made may
be laid before the minister concerned for approval.
Under section 27(1) of the Interpretation and General Provisions Act, (Cap 2), unless
otherwise provided all delegated legislation must be published in the Kenya Gazette before
coming into operation. However, the date of commencement may be backdated.
Under section 34 (1) of the Interpretation and General Provision Act, Cap 2, unless
otherwise provided delegated legislation must be laid before parliament for approval.
However, parliament is empowered to annul the rules by resolution to the effect.
(a) Judicial control
Courts of law attempt to control delegated legislation through the doctrine of
UltraVires, which literally means beyond the powers. A court of law is empowered to
declare delegated Legislation ultra vires where upon the rules become null and void and
therefore in operative.
A court of law may declare delegated legislation substantively or procedurally
UltraVires.
(b) Substantive ultra vires.
A court of law may declare delegated legislation substantively ultravires if on application
it satisfied that:
(i) The delegate has exceeded the power prescribed by the enabling or Parent Act.
(ii) The delegate acted unreasonably.
(iii) The delegate exercised his powers for a purpose other than that for which
the power was conferred.
(c) Procedural ultra vires.
The procedure of law making prescribed by the enabling or Parent Act is mandatory
and must be complied with by the delegate. Delegated legislation made without
compliance with the procedure thereby prescribed is procedurally defective and may be
declared procedurally ultra vires if challenged before a court of law. In Maina
and Mwangi V. R (1950) the appellants were convicted by Resident Magistrates Court in
Nairobi for overcharging a hair cut contrary to the Defence Control Regulations 1948.
These regulations empowered the price controller to fix charges for various services
including a hair cut. He had fixed the price of a haircut at 50 cent. The appellants had
charged Sh.1. On appeal, the appellants argued that their conviction and sentence was
null and void as the rules under which they had been convicted were procedurally
defective in that they had not been published in Government Gazette as required by
law. Since the rules were procedurally defective they were declared procedurally ultra
vires and the appellants conviction and sentence was set aside.
Courts of law cannot effectively control delegated legislation by reason of their passive
nature. Secondly, an application must be made to the court and the applicant must at
the very least discharge the burden of proof.
maurice.mutuku answered the question on May 3, 2018 at 08:30
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