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JUDICIARY

judiciary

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abdulhakimibrahim9199
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12 views

JUDICIARY

judiciary

Uploaded by

abdulhakimibrahim9199
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Role of the judiciary in making of delegated legislation in Kenya.

Generally, the judiciary plays a crucial role in shaping and overseeing delegated legislation
through its interpretative and oversight facilities, ensuring the legality and constitutionality of
such laws. Some of the key roles of the judiciary in making delegative legislation are:
1.Judicial review
Judicial review is the power of the courts to examine the actions of the legislative, executive and
administrative arms of the government and to determine whether such actions are consistent
with the constitution. If a piece of delegated legislation is found to be unconstitutional or
beyond the powers granted by the enabling act(ultra vires),the judiciary can declare it null and
void. Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of
the decisions. The grounds for claiming ultra vires range from abuse of power, acting
unreasonably (Padfield V Minister of Agriculture, Fisheries and food[1968]) or acting not
accordance with the rules of natural power.
2.Interpretation of laws
Under the 2010 constitution, the judiciary has the power to interpret laws and ensure they align
with constitutional principles. Article 159(2) of the constitution states that justice shall be
administered without undue regard to procedural technicalities and the purpose and principles
of this constitution shall be protected and promoted.
3.Oversight and accountability
The judiciary ensures that the body or individuals to whom legislative powers have been
delegated do not exceed their authority. Samuel Issacharoff observes in Fragile Democracies:
Contested Power in the Era of Constitutional Courts that:” Whereas the judiciary cannot claim
Hercluean wisdom nor attempt to engage at a first order levels the arguments for greater
democratic legitimacy of the political branches, courts have rightly emerged as the stop gap
protections to two of the classic disabilities of democracy: electoral legitimacy and secondly,
accountability.” Courts must therefore act prudently to protect constitutionalism, rule of law
and democracy through bold judicial decisions.1
4.Protection of Rights
The judiciary plays a crucial role in protecting human rights within the context of delegated
legislation by ensuring that such laws align with constitutional principles, particularly those in
the bill of rights. The judiciary ensures that delegated powers are exercised strictly within the
limits defined by parent statutes, preventing arbitrary or oppressive rules that may violate
individual freedoms.

1
CODRALKA CHAPTER 10:BEN SIHANYA

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