What is Judicial Review?

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It is judicial supervision by courts of the legality of exercise of power by other bodies, Parliament Ministers or Tribunals etc. The main orders that a litigant will seek from court include

Certiorari will issue to quash an irregular / illegal decision;
Mandamus will issue to command a public entity to carry out its legal duties, if they are in default;
Habeas Corpus would issue to release any person wrongfully detained;
Prohibition would issue to stop continuation of an illegal Act;
Injunctions, will issue to stop a party from perpetrating injustice or an illegality;
Declarations order in which the court declares the rights of litigants and/or parties to the dispute.

The High Court is the source of all these remedies. In Kenya the relevant division is the and Judicial Review Division of the High Court.

When subjecting some administrative Act or order to Judicial Review the court is concerned with legality. The important question then becomes if is it within the limits of the powers granted?
When a decision is appealed against in ordinary cases the appeal deals with if is right or wrong in law
For Judicial Review the question is whether the act is lawful or unlawful.
Rights of appeal are statutory. Judicial Review on the other hand is the exercise of the courts inherent power to determine whether action is lawful or not and to award sufficient relief.
The basis of Judicial Review is Common Law.
Judicial Control therefore primarily means review and is based on a fundamental principle, that power can be validity exercised only within its true limits and within legal confines.
Judicial Review examines mainly the question of exercise of Administration Power.
Judicial Review examines if there has been abuse of discretionary power or if an act is unjustifiable for the wrong reasons or for adoption of the wrong procedure, or by improper motive.
In law improper motive or a false step in procedure makes an administrative act just as illegal as flagrant exercise of authority.
If merely because an Act says that a minister may make such order as he thinks fit or may do something if he is satisfied as to some fact the court were to allow him to act as he liked, a wide door would be opened to abuse of power and the rule of law would cease to operate.
Administrative Law also recognizes the cardinal axiom that every power has legal limits. If the court finds that the power has been exercised oppressively or unreasonably or if there has been some procedural failings such as not allowing a person to be affected to put forward his case the act may be undermined as unlawful.
There is no such thing as unfettered discretion in law as it cannot exist where the rule of law reigns. All power is capable of abuse and the power to prevent abuse of power is the acid test of effective Judicial Review.

jerop5614 answered the question on December 22, 2018 at 17:14

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What is Judicial Review?

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