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.
• 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.
• Substantive ultra vires
A court of law may declare delegated legislation substantively ultravires if on application it satisfied that.
o The delegate has exceeded the power prescribed by the enabling or Parent Act.
o The delegate acted unreasonably.
o The delegate exercised his powers for a purpose other than that for which the power was conferred.
• 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 andMwangi V. R (1950) the appellants were convicted by Resident Magistrates Court in Nairobi for overcharging a hair cut contrary to the Defense 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
