Administrative Law in Kenya: Constitutional Foundations and Remedies

Introduction to Administrative Law

Summary: Introduction to Administrative Law.

Working Definitions

1. Administrative Law

Manner of Discharging Government Functions

Administrative law regulates the powers and duties of public authorities in Kenya, including:

1. National Government: Executive (President, Cabinet Secretaries, civil service officers), Legislature (Clerk), Judiciary (Chief Registrar).
2. County Governments: Governors, County Executive Committees, County Secretaries, County Assemblies, Ward Administrators.
3. Regulatory Authorities: e.g., PPRA, KMA, ERC, CAK, IRA, NTSA, NEMA, KeBS, BCLB.
4. Commissions & Independent Offices: e.g., NPSC, IPOA, PSC, IEBC, CAJ, Auditor-General, DPP, JSC, SRC, TSC.
5. State Corporations: e.g., KRA, KPA, KAA, HELB, KSL, Public Universities.
6. Tribunals: e.g., Tax Tribunal, Rent Restriction Tribunal, Election Disputes Tribunal, Sports Tribunal, HIV Tribunal, Public Procurement Review Board.

Functions and Purposes of Administrative Law

1. Keep authorities within legal power (no unfettered power).
2. Prevent abuse of power (for example, misuse of compulsory land acquisition).
3. Protect citizens rights from arbitrary decisions.
4. Compel performance of public duties via orders such as mandamus (similar to a mandatory injunction).

Purposes summarized:

• Ensure authorities act within legal mandates.
• Prevent abuse of power.
• Protect rights and interests of the public.
• Maintain order among public authorities (avoid turf wars).

Scope of Administrative Law

1. Traditionally: Concerned only with public authorities.
2. Expanded Scope (Post-2010 Constitution):

Complications: Entities with mixed private and public roles (for example, Kenya Airways, Mumias Sugar) may fall under administrative law depending on their functions and impact on public rights.

Key Case Law (Assignment)

1. Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others [2018] eKLR → Illustrates expanded scope of administrative law in Kenya's post-2010 legal landscape.

Core Takeaways

1. Administrative law = control of government power plus protection of citizens rights.
2. Powers must be lawful, proper, and accountable.
3. Article 47 and the Fair Administrative Action Act broaden scope to include some non-state actors.
4. Mechanisms like mandamus ensure authorities perform duties.
5. Expanded scope reflects Kenya's constitutional commitment to fairness and accountability.

Constitutional Basis of Administrative Law in Kenya

Summary: Constitutional Basis of Administrative Law in Kenya.

Government Subject to Law and the Rule of Law

1. Administrative law controls how public power is exercised by government agencies and officials.
2. Administrative action = any interaction between citizens and administrative agencies (not court proceedings).
3. Post-independence optimism (1963) was eroded by subsequent developments.

Rule of Law (essential elements)

Constitutional Foundations (2010 Constitution)

The Constitution of Kenya, 2010 radically restructured governance and provided a strong basis for administrative law.

Key Provisions:

1. Preamble → Aspiration for government based on human rights, equality, democracy, social justice, and the rule of law.
2. Article 1 → Sovereign power belongs to the people, delegated to state organs (Legislature, Executive, Judiciary).
3. Article 2(1) → Supremacy of the Constitution; binding on all persons and state organs.
4. Article 3(1) → Duty of every person to respect, uphold, and defend the Constitution.
5. Article 6(3) → State organs must enhance accessibility of services nationwide.
6. Article 10 → National values and principles of governance: patriotism, unity, democracy, human dignity, equity, inclusiveness, good governance, integrity, transparency, accountability, sustainable development.

Bill of Rights (Chapter Four)

1. Article 21 → State must respect, protect, promote, and fulfill rights.
2. Article 20(1) → Bill of Rights binds all persons, not just the state.
3. Article 22 → Any person may institute proceedings for violation or threatened violation of rights.
4. Article 47 → Right to fair administrative action.

Leadership and Integrity (Chapter Six)

1. Article 73(1) → Authority is a public trust; must serve, not rule.
2. Article 73(2) → Principles: objectivity, impartiality, selfless service, accountability.
3. Article 75(3) → Disqualification from state office if dismissed or removed.
4. Supported by the Leadership and Integrity Act, 2011.

Restructuring of Government Offices

1. Presidential appointments require parliamentary approval.
2. President's decisions must be in writing with seal or signature.
3. Cabinet Secretaries are not Members of Parliament.
4. IEBC restructured.
5. Judicial Service Commission restructured.
6. Parliament is now bicameral (National Assembly and Senate).
7. DPP made independent from the Attorney-General.
8. Controller of Budget (Art. 228) and Auditor-General (Art. 229) separated.

New Offices and Structures

1. Commission on Administrative Justice (CAJ) (Ombudsman) → Article 59(1)(h)(i)(j); established under the CAJ Act, 2011 (Section 3).
2. National Land Commission → Article 67.
3. Supreme Court → Article 163 (highest court).
4. Court of Appeal → Article 164.
5. High Court judicial review jurisdiction → Article 165(6)(7).
6. Commission on Revenue Allocation → Articles 215–216.
7. Salaries and Remuneration Commission (SRC) → Article 230, guided by Article 230(5).
8. National Police Service Commission (NPSC) → Article 246.
9. Public finance principles → Article 201.
10. Public service values → Article 232.
11. Protection of public officers → Article 236.
12. National security principles → Article 238.
13. National security organs → Article 239(3).
14. National Police Service standards → Article 244.
15. NPSC due process → Article 246(3)(b).
16. Composition of NPS → Article 246(4).
17. Commissions and independent offices → Articles 249(1), 249(2), 250(4).

The Ombudsman: Commission on Administrative Justice (CAJ)

1. Origin: Scandinavian tradition.
2. In Kenya: Established under Article 59(4) and the CAJ Act, 2011 (Section 3).
3. Functions: See Section 8, CAJ Act.

Case Law:

1. Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR → Court of Appeal held CAJ recommendations binding.
2. Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] eKLR (Supreme Court) → Overturned; held CAJ recommendations are not legally binding unless expressly provided by law.

Essentials of an Ideal Ombudsman

• Independence, transparency, accountability.
• Adequate resources.
• Collaboration with civil society.
• Accessibility (branch offices).
• Credibility (recommendations respected and implemented).

Core Takeaways

1. Administrative law in Kenya is firmly grounded in the 2010 Constitution.
2. Article 47 (fair administrative action) is the cornerstone.
3. Numerous Articles (1, 2, 3, 10, 21, 73, 201, 232, 238, etc.) embed accountability, fairness, and the rule of law.
4. CAJ (Ombudsman) plays a critical role, though its recommendations are not binding unless law provides.
5. Case law (2019 Court of Appeal vs 2021 Supreme Court) clarified the limits of CAJ's powers.

Sources of Public Authority in Administrative Law

Summary: Sources of public authority in administrative law.

General Principle

1. Any public authority must have a legal basis; otherwise its actions are ultra vires (beyond authority) and therefore null and void.
2. Sources of public authority include:

• Constitution
• Statutes and delegated legislation
• Royal or Crown prerogative (historical)
• Non-legal or abnormal powers
• Contractual powers
• Custom and usage

Constitution

1. The supreme law (grundnorm) establishing the three arms of government: Executive, Legislature, Judiciary.
2. Also creates constitutional commissions and independent offices (for example, IEBC, JSC, SRC, PSC, NPSC, Controller of Budget, Auditor-General).
3. Powers exercised must be within constitutional limits and subject to administrative law principles.

Case Law:

1. Republic v Deputy Inspector General of NPS ex parte PC Morris Sagala & 29 Others [2013] eKLR.
2. Article 10 → National values: transparency, equity, accountability.
3. Article 47(1) → Right to fair administrative action (expeditious, efficient, lawful, reasonable, procedurally fair).
4. Article 129(2) → Executive authority must serve the people's well-being.

Statutes and Delegated Legislation

1. Statutes establish public institutions and empower them (for example, National Police Service Act, Kenya Ports Authority Act, Environmental Management and Coordination Act).
2. Delegated legislation allowed under the Statutory Instruments Act but must follow procedure (for example, tabling before Parliament, public participation).

Case Law:

1. Republic v Cabinet Secretary for Transport ex parte Kenya Country Bus Owners Association [2014] eKLR.
2. Republic v Attorney General & Minister for Labour JR 164/2014.

Royal or Crown Prerogative

1. Historically: the monarch exercised powers without legal basis (taxation, war, pardons, incorporation).
2. In Kenya (pre-2010): the President had prerogative powers (dissolve parliament, declare war, grant pardons, confer honours).
3. The 2010 Constitution curtailed these powers with checks and balances.

Case Law:

1. John Harun Mwau v Attorney General [2015] eKLR.

Non-Legal and Abnormal Powers

1. Private bodies with monopolistic or public law functions may be treated as de facto public authorities.
2. Examples: Kenya Golf Union, FKF, Athletics Kenya, Kenya Chamber of Commerce, Catholic Church, Aga Khan Foundation.
3. Courts sometimes extend judicial review to such bodies due to their public impact.

Contractual Powers

1. Public bodies acquire powers through contracts (leases, employment, procurement).
2. Distinction between statutory contracts (which may fall under administrative law) and purely commercial contracts (private law).

Case Law:

1. KANU v President & Others [2005] eKLR → KICC takeover; mixed public and private law claims dismissed.
2. Republic v KBC ex parte Obadiah Nyatodo [2000] → Employment dismissal = private law matter, not judicial review.
3. Prisca Kemboi v Kenya Post Office Savings Bank [2014] eKLR → Employment discipline not administrative action under Article 47; but violation of Article 32 (freedom of religion) was upheld.
4. English precedents referenced.

Custom and Usage

1. Long-standing practices by public bodies or officers.
2. Examples and case law show erosion of custom and usage by constitutional and statutory provisions.

Case Law:

1. High Court, Oct 2021 → JSC could facilitate swearing-in of judges under Article 166(1)(b) despite the President's refusal.
2. This shows the diminishing role of custom when overridden by constitutional or statutory provisions.

Core Takeaways

1. The Constitution is the supreme source of public authority; all actions must align with it.
2. Statutes and delegated legislation operationalize institutions but must follow due process.
3. Royal prerogatives have been curtailed but some discretionary powers (for example, honours) remain.
4. Non-legal powers of private bodies may be subject to judicial review if they affect public rights.
5. Contractual powers: statutory contracts fall under administrative law; commercial contracts fall under private law.
6. Custom and usage plays a diminishing role and is often overridden by constitutional provisions.

Nature of Public Authority

Summary: Nature of public authority.

Types of Public Authority

1. Power or Discretion → Authority to decide whether to act and how to act.
2. Duty or Ministerial → Obligatory actions with no discretion.

Assessing Legality

1. Courts interpret the Constitution and statutes to determine if an act is intra vires (within power) or ultra vires (beyond power).
2. Example: Arrest outside Kisumu County by county health officers → ultra vires.
3. Example: Shooting a cat when statute only allows shooting dogs → ultra vires.

Principles of Statutory Interpretation

Principle 1: Incidental Powers

1. Acts reasonably incidental to a power are included.
2. Examples and cases:

• AG v Leeds Corporation (1929) → bus routes extended beyond limits to turn buses.
• Smith v Cardiff Corporation (1955) → housing authority could charge different rents.
• Becker v Home Office (1932) → prisons could charge for privileges.
• Felixstowe Dock v British Transport Docks Board (1976) → courts intervene only if action goes beyond incidental powers.

Principle 2: Permissive vs Obligatory Words

1. Words like may can be interpreted as shall depending on context.
2. Examples and cases:

• Peter Muturi Njuguna v KWS [2017] eKLR → "may" in the Wildlife Act meant the claimant had to exhaust statutory procedure before court action.
• R v Tithe Commissioners (1849) → permissive words can have compulsory force for public benefit.
• Padfield v Minister of Agriculture (1968) → minister must investigate complaints and cannot use discretion to frustrate the Act.
• R v Metropolitan Police Commissioner ex parte Halloway (1911) → cab licences must be granted if conditions met.
• Congreve v Home Office (1976) → arbitrary revocation of TV licences unlawful.
• R v Newcastle ex parte Veitch (1889) → duty to approve building plans if by-laws satisfied.

Core Takeaways

1. Public authority is either discretionary power or mandatory duty.
2. Discretionary powers are harder to review but must be exercised in good faith, reasonably, and within limits.
3. Ministerial duties are straightforward: failure to perform is unlawful.
4. Courts use statutory interpretation principles to decide whether words like may imply discretion or duty.
5. Case law shows that permissive powers can become duties when public interest or justice requires it.

Abuse of Power — Substantive Irregularities

Irregularities

Meaning

1. Abuse of power = failure of administrative action to adhere to substantive or procedural principles of administrative law.
2. Can arise from action (for example, unlawful retirement of a magistrate) or inaction (for example, failure to clean markets, failure to award degree certificates).
3. Two categories: substantive irregularities and procedural irregularities.

Substantive Irregularities

(a) Unlawfulness

1. Administrative actions must comply with the Constitution, statutes, international law, and court decisions.
2. Article 47(1), Constitution of Kenya, 2010 → requires lawful administrative action.
3. Case: Republic v Deputy Inspector General of NPS ex parte PC Morris Sagala [2013] → IG had no power to transfer officers; only NPSC under Article 246(3)(a).

(b) Unreasonableness

1. Decisions must be guided by reason, facts, and law.
2. Article 47(1) → requires reasonable administrative action.
3. Classic test: Wednesbury unreasonableness (Associated Provincial Picture Houses v Wednesbury Corporation [1948]) → action so absurd no reasonable authority could take it.
4. Examples: Kenyan courts caution against substituting judicial opinion for administrative discretion (Republic v AG & Minister for Labour JR 164/2014).

(c) Bad Faith

1. Acting for illegitimate reasons, not necessarily moral blameworthiness.
2. Often overlaps with unreasonableness, malice, or dishonesty.

(d) Lack of Proportionality

1. Measures must not be more drastic than necessary.
2. They must balance public interest against private rights.
3. Sometimes overlaps with unreasonableness (for example, R v Chief Constable of Sussex ex parte International Trader's Ferry [1998]).

(e) Irrelevant and Relevant Factors

1. Decision makers must consider only legally relevant factors.
2. Case law examples are provided to illustrate the point.

Core Takeaways

1. Abuse of power occurs when administrative action is unlawful, unreasonable, in bad faith, disproportionate, or based on irrelevant factors.
2. Article 47, Constitution of Kenya, 2010 anchors lawful, reasonable, and fair administrative action.
3. Courts use doctrines like Wednesbury unreasonableness and proportionality to check abuse.
4. Case law (Kenyan and international) illustrates how courts invalidate actions that exceed legal limits or misuse discretion.

Abuse of Power — Substantive Irregularities (Repeated)

Irregularities

Meaning

1. Abuse of power = administrative action that fails to follow substantive or procedural principles.
2. Can arise from action (for example, unlawful retirement) or inaction (failure to perform legal duties).
3. Two categories: substantive irregularities and procedural irregularities.

Substantive Irregularities

(a) Unlawfulness

1. Actions must comply with the Constitution, statutes, and law.
2. Article 47(1), Constitution of Kenya, 2010 → requires lawful administrative action.
3. Republic v Deputy IG of NPS ex parte PC Morris Sagala [2013] → IG had no power to transfer officers; only NPSC under Article 246(3)(a).

(b) Unreasonableness

1. Decisions must be rational, not absurd.
2. Wednesbury unreasonableness → action so absurd no reasonable authority could take it.
3. Cases: Rooke's Case (1598), Roberts v Hopwood [1925], Associated Provincial Picture Houses v Wednesbury Corporation [1948].
4. Kenyan case: Chaganlal v Kericho Urban Council [1965] → compulsory acquisition without compensation unreasonable.
5. Courts must not substitute their opinion unless action exceeds legal bounds.

(c) Bad Faith

1. Acting for illegitimate reasons (malice, dishonesty, improper motives).
2. Cases: Roncarelli v Duplessis [1959] (license cancelled for political reasons), Denmann v Westminster Corporation [1906] (land acquired for improper purposes).

(d) Lack of Proportionality

1. Measures must not be harsher than necessary.
2. Must balance public versus private interests.
3. Cases: R v Barnsley MBC ex parte Hook [1976] (license revocation disproportionate), Ranjit Thakur v Union of India [1987] (excessive military punishment).

(e) Irrelevant and Relevant Factors

1. Decision makers must consider only legally relevant factors.
2. Employment Act, 2007, Section 49(4) → labour officer must consider employee's wishes and length of service.
3. Children Act, 2022, Section 8; Constitution Article 53(2) → best interests of the child are paramount.
4. Cases: Padfield v Minister of Agriculture [1968], R v Manchester CC ex parte King [1991], R v Home Secretary ex parte Pierson [1998].
5. Lack of funds is not a valid excuse (R v East Sussex CC ex parte Tandy [1998]).

Core Takeaways

1. Abuse of power occurs when administrative action is unlawful, unreasonable, in bad faith, disproportionate, or based on irrelevant factors.
2. Article 47 anchors lawful, reasonable, and fair administrative action.
3. Courts use doctrines like Wednesbury unreasonableness and proportionality to check abuse.
4. Case law (Kenyan and international) illustrates how courts invalidate actions that exceed legal limits or misuse discretion.

Would you like me to also create a quick reference table listing each irregularity, its definition, and a key case example for easier revision?

Ultra Vires and the Rule of Law

Summary: Ultra Vires and the Rule of Law.

Meaning of Ultra Vires

1. Ultra vires = Latin for beyond powers → when an administrative authority acts outside powers granted by law.
2. Rooted in company law (acts beyond objects clause).
3. In administrative law → central principle of judicial review.
4. Example: SRC v Parliamentary Service Commission [2020] eKLR → PSC acted ultra vires by awarding MPs housing allowances; only SRC had power under Article 230(4)(5).
5. Republic v Deputy IG of Police ex parte Morris Sagala [2013] → IG's transfer powers were ultra vires; only NPSC can transfer under Article 246(3)(a); IG can assign duties under Article 245(4)(c).

Types of Ultra Vires

1. Substantive ultra vires → when a body acts outside its express or implied powers (for example, legality, proportionality, reasonableness).
2. Procedural ultra vires → when a body fails to follow prescribed procedures or rules of natural justice.
3. Effect: Ultra vires acts are void ab initio (null from the start).

Rule of Law (A. V. Dicey)

1. Every government action must be lawful and must have legal warrant.
2. Discretion must be exercised within rules and principles to prevent arbitrary power.
3. Courts must prevent abuse of power; judicial review ensures legality and requires judicial independence.
4. Equality before the law → government bound by contract, tort, and constitutional duties unless exemption justified.

Constitutional Recognition

1. Article 10(2)(a) → national values include the rule of law.
2. Article 91(1)(g) → political parties must respect the rule of law.

Core Takeaways

1. Ultra vires is the backbone of administrative law and judicial review.
2. Acts beyond legal authority are void.
3. The rule of law ensures government acts are lawful, reasonable, accountable, and equal before the law.
4. The Kenyan Constitution embeds these principles to safeguard against abuse of power.

Natural Justice

Summary: Natural justice.

Meaning

1. Natural justice = fairness in decision-making; rooted in common law principles.
2. Synonyms: procedural fairness, fundamental justice, fair play in action.
3. Recognized in Kenya's Constitution.

Two Core Rules

1. Audi alteram partem → "hear the other side".
2. Nemo judex in causa sua → "no one a judge in his own cause".

Effect of Breach

1. Breach of natural justice → decision is null and void ab initio.
2. Onyango Oloo v AG [1986-1989] EA 456 → denial of right to be heard renders a decision void.

Core Takeaways

1. Natural justice ensures fairness in all administrative actions.
2. The two pillars are the right to be heard and the rule against bias.
3. The Constitution of Kenya embeds these principles in Articles 22, 25, 47, 50, and 159.
4. Courts consistently quash decisions made in violation of natural justice.

Overlap Between Administrative Law and the Constitution of Kenya

Summary: Overlap between administrative law and the Constitution of Kenya, 2010.

Relationship

1. Administrative law is often described as specified constitutional law (Fritz Werner, 1959).
2. The 2010 Constitution revolutionized governance and deeply integrated administrative law principles.

Principles and Values in the Constitution

1. Preamble → aspirations for human rights, equality, democracy, social justice, rule of law.
2. Article 3(1) → duty of every person to respect and uphold the Constitution.
3. Article 6(3) → state organs must enhance accessibility of services nationwide.
4. Article 10 → national values: rule of law, participation, equality, human rights, transparency, accountability.
5. Article 20 → Bill of Rights binds all persons.
6. Article 25 → right to fair trial cannot be limited.
7. Article 47 → right to fair administrative action.
8. Article 50 → right to fair hearing.
9. Article 73 → conduct of state officers: serve the people, act objectively, be accountable.
10. Article 232 → principles of public service: responsiveness, efficiency, transparency, non-discrimination.

Procedures and Remedies

1. Article 3(1) → duty to defend the Constitution; flexible locus standi.
2. Article 22 → relaxed standing rules; allows suits in the public interest or on behalf of victims.
3. Article 23(3) → courts may grant judicial review remedies in human rights cases.
4. Article 47(3) → Parliament to enact law for judicial or quasi-judicial review → led to the Fair Administrative Action Act, 2015.
5. Article 48 → access to justice must be ensured (for example, affordable court fees).
6. Article 59(4) → restructuring of the KNCHR and creation of the Commission on Administrative Justice (Ombudsman).
7. Article 163 → establishes the Supreme Court as the highest court.
8. Article 165(6)(7) → High Court has judicial review jurisdiction over subordinate courts and quasi-judicial bodies.
9. Article 249(1) → commissions and independent offices must promote constitutionalism.

Key Takeaways

1. The Constitution embeds substantive principles (lawfulness, equality, transparency, natural justice).
2. It also provides procedural mechanisms (judicial review, Ombudsman, access to justice).
3. This overlap reinforces the close relationship between administrative law and constitutional law in Kenya.

Case Reference: Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others [2018] eKLR → illustrates expanded overlap between administrative law and constitutional principles in the post-2010 legal landscape.

Would you like me to create a visual chart mapping each administrative law principle (for example, lawfulness, fairness, accountability) directly to its corresponding constitutional article for quick revision?

Rule by Bureaucracy: Rulemaking and Adjudication in Administrative Agencies

I. Introduction

Administrative agencies are established to provide public goods and services, but their operations invariably affect the liberties and livelihoods of citizens. To ensure these powers are exercised democratically, agencies must utilize procedures that facilitate participation and accountability. This results in two primary functions: rulemaking (creating generalized standards) and adjudication (resolving specific disputes or claims). While these functions are essential for efficiency, they raise significant separation of powers concerns because executive agencies effectively perform legislative and judicial roles.

II. Purposes and Challenges of Rulemaking and Adjudication

A. Rulemaking

• Purpose: Legislatures often lack technical expertise or time to enact precise laws, leading them to grant broad discretionary powers to agencies to act in the public interest.
• Advantages: Rulemaking allows for equal treatment of competitors, avoids harsh retroactive effects, and creates accessible general principles. It provides a framework for individuals to plan their conduct and helps agencies resolve whole classes of problems efficiently.

Challenges:

• Separation of Powers: Granting executive agencies law-making power can lead to rule by bureaucracy where unelected officials wield sweeping authority.
• Democratic Deficit: Bureaucrats are not directly accountable to the public, and informal internal policies can create a form of "secret law" that deviates from legislative standards.

B. Adjudication

• Purpose: Adjudication determines issues according to settled standards, involving evidence gathering and evaluation. It is often the only avenue for citizens to resolve claims against public administration.
• Advantages: Historically viewed as a cheap, non-technical, and accessible substitute for ordinary courts. It allows specialist expertise in complex areas like tax or immigration.

Challenges:

• Lack of Independence: Many tribunals have been administered by the very government departments whose decisions they are reviewing.
• Judicialization: A trend toward court-like procedures can make tribunals too technical for unrepresented litigants.

III. Rulemaking in Kenya

• Legal Framework: Rulemaking is governed by the Statutory Instruments Act (SIA) 2012, which replaced portions of the Interpretation and General Provisions Act.
• Constitutional Mandate: Article 10(2) makes public participation a national value and principle of governance.

Statutory Requirements (SIA 2012)

• Authorities must undertake appropriate consultation with those likely to be affected, especially if the rule impacts business or competition.
• Regulatory Impact Statements are required if a proposed instrument imposes significant costs on the community.
• All statutory instruments must be tabled in Parliament within seven days of publication; failure to do so renders the instrument void.
• Instruments automatically expire after ten years to ensure continuous review.

Key Case Law:

• Mbuini Mwa Environment Sand Harvesting Cooperative Society Ltd v County Council of Masaku: The court nullified by-laws because the council failed to provide the mandatory fourteen-day notice and sufficient information to the public.
• Republic v City Council of Nairobi ex parte Kenya Taxi Cabs Association: The court ruled that the Town Clerk and City Engineer exceeded their mandate by making new rules via memo without following the SIA's due process or allowing public participation.

IV. Adjudication in Kenya

Current State: There are over sixty ad hoc tribunals in Kenya, often operating with non-uniform procedures and varying degrees of independence.

Constitutional Basis: Article 159 vests judicial authority in both courts and tribunals, mandating that they administer justice without undue regard to procedural technicalities.

• Key Challenges: Many tribunals lack autonomy, are poorly remunerated, and are often inaccessible as they frequently sit only in Nairobi.

Key Case Law:

• Nyakinyua & Kang'ei Farmers Co. Ltd v Kariuki & Gathecha Resources Ltd: The Court of Appeal established that ouster clauses do not prevent courts from intervening if a tribunal had no jurisdiction.
• Mike J C Mills v The Post and Telecommunications: Confirmed that judicial review is not precluded by Parliamentary provisions purporting to bar the court's jurisdiction.

Proposed Reform (Tribunals Bill 2015): This draft bill seeks to rationalize tribunals under a single administrative regime. It proposes a Council of Tribunals chaired by the Chief Justice and moves the power of appointment to the Judicial Service Commission to enhance independence.

Analogy for Understanding: Think of an administrative agency as a referee in a sports game. Rulemaking is like the league officials writing the rulebook before the season starts to ensure everyone plays fairly. Adjudication is like the referee making a specific call on the field when a player is accused of a foul. If the league writes rules in secret (bad rulemaking) or the referee is employed by one of the teams (bad adjudication), the integrity of the whole game is lost. Just as a league needs independent oversight and player input, administrative agencies need judicial review and public participation to remain fair.

The Significance of Procedures in Administrative Law

I. Understanding the Concept of Justice

• Definition: Justice denotes what is right, fair, appropriate, or deserved within social relations.
• Context: The need for justice arises from competition for scarce resources.
• Function of Law: Law serves as an instrument of social control. It establishes principles and procedures to facilitate equal treatment, ensuring resources are shared fairly and legitimately to maintain social stability.

The Goal: Law promises justice by ensuring that claims are treated in the same manner as others with similar claims.

II. The Role of Procedural Justice

• Procedural vs Substantive Justice: Procedural justice is an essential element in attaining justice. The theory suggests that substantive justice (the actual outcome) is the product of a consistently applied "impeccable method" (the procedure).
• Key Scholarly Perspectives:
• Dennis Galligan: Argues that procedures are necessary for the enforcement of criminal law, regulation of activities, distribution of burdens and benefits, and resolution of disputes.
• Nonet and Selznick: Emphasize that procedures ensure individuals are treated according to the standards governing society.

III. The Rule of Law Framework

The Rule of Law is the ideal that society should be governed by law, not by men. For this to be realized, the law must meet several criteria:

• Universality and Generality: Prescriptions must address citizens generally, not specific individuals.
• Promulgation: Laws must be made known to the subjects so they can guide their conduct.
• Prospectivity: Laws must prescribe behavior for the future, not retroactively.
• Clarity: Rules must be understandable.
• Non-contradiction: Laws must not conflict with one another.
• Possibility: Rules must not require impossible conduct.
• Stability: Laws should not change too frequently, allowing for advance planning and predictable expectations.
• Congruence: There must be consistency between the rules promulgated and their actual application to specific cases.

Application Mechanisms: Realizing these criteria requires an independent judiciary, easy access to litigation, and reliable enforcement.

Significance of Procedures in Public Administration

Procedures are defined as steps leading to a decision or the means for reaching a decision. Procedure in administrative law refers to the rules governing how government agencies operate, make decisions, and carry out their duties, such as rulemaking, adjudication, and enforcement.

• Procedures ensure fairness, transparency, and legitimacy.
• They protect citizen rights and enhance accountability.
• They provide structure, predictability, and public participation.
• Courts enforce fairness even where statutes are silent.

Constitutional and Statutory Basis

Procedural fairness means fairness in the procedures followed when arriving at an administrative decision.

• Article 47(1): Right to expeditious, efficient, lawful, reasonable, and procedurally fair administrative action.
• Article 50(1): Right to a fair and public hearing before an impartial tribunal.
• Section 4(1) of the Fair Administrative Action Act: Reinforces fair administrative action.
• Section 7(2)(b&c) of the Fair Administrative Action Act: Grounds for judicial review.

Fundamental Procedural Rights; Natural Justice

Natural justice is a fundamental concept in administrative law that ensures fairness, impartiality, and reasonableness in decision-making by administrative bodies. There are two limbs to the rules of natural justice:

• The rule against bias (nemo judex in causa sua: no one should be a judge in his own cause).
• The right to a fair hearing (audi alteram partem: hear the other side).

To ensure you are exam-ready for Administrative Law, this overview organizes the principles of Natural Justice using the sources provided, with a specific focus on the governing articles and key judicial precedents.

Audi Alteram Partem: The Right to be Heard

This rule imposes an absolute duty on any person or tribunal to hear both sides of a case before making a decision.

Right to a Fair Hearing - Dry Associates v CMA (2012): CMA acted within mandate to protect investors. DAL was given chance to respond; fair hearing upheld. The Court distinguished Article 47 and Article 50(1) as separate rights.

Key Elements of the Right to be Heard

1. Prior Notice: Notice is essential for enabling a party to prepare their defense. It must state the subject matter and charges with clarity and precision.
2. Adjournment: If a party cannot attend due to genuine circumstances, an adjournment should be granted to ensure an adequate defense.
3. Cross-Examination: This is a method for establishing truth, particularly regarding oral evidence.
4. Legal Representation: Denying the right to counsel is considered a denial of natural justice in many contexts.
5. Disclosure of Information: Authorities cannot base decisions on evidence that the affected party has not seen or had the chance to rebut.
6. Statutory Right to Reasons: Article 47(2) of the Constitution of Kenya enshrines the right of persons adversely affected by administrative action to be given written reasons.
7. Oral vs Written Hearings: Natural justice does not always require an oral hearing; written representations may suffice depending on the gravity of the issue.

Case Law Examples:

• R v Thames Magistrates Court: Decision quashed because the defendant was not given sufficient time to prepare a defense despite being notified.
• R v KMTC ex parte James Chepkonga Kandagor: Certiorari granted where notice was given on the same day as the meeting.
• Daniel Nyongesa v Egerton University College: Court upheld natural justice where students were expelled without being informed of the claims or given prior notice.
• R v South West London Supplementary Benefit Appeal Tribunal: Denial of adjournment held unlawful when a party had to attend an interview.
• University of Ceylon v Fernando: Failure to demand cross-examination may preclude later complaint.
• Geoffrey Mwangi Kariuki v University of Nairobi: Violation of natural justice when a student was denied legal representation during disciplinary proceedings.
• Kanda v Government of Malaya: Conviction quashed because a party was denied opportunity to see the information laid against them.
• Jopley Constatine Oyieng v PSC of Kenya: Decision set aside because the judge failed to provide reasons for his decision.
• Charles Kanyingi Karina v Transport Licensing Board: Court denied necessity of an oral hearing in a case involving speed governor violations.

Nemo Judex in Causa Sua: Rule Against Bias

This rule demands impartiality and is reflected in Article 50(1) of the Constitution of Kenya.

Rule Against Bias - Case: Konchellah & Others v Chief Justice: The Chief Justice was a respondent and could not empanel judges; the Deputy Chief Justice properly exercised authority under Article 165(4). The case upheld nemo judex in causa sua (no one judges their own cause).

Forms of Bias

• Pecuniary Bias: Any direct financial interest, however small, automatically disqualifies the decision-maker (for example, London & NW Railway v Lindsay).
• Personal Bias: Arises from friendship, relationship, or hostility (cases include Tumaini v R and R v Inner West London Coroner).
• Subject Matter Bias: Arises from a judge's strongly held beliefs or intimate connection to the issues (for example, PUC v Pollak).

Tests for Bias

• Actual Bias: Proving the decision-maker was influenced by partiality is difficult.
• Apparent Bias (Reasonable Suspicion): Focuses on how a reasonable member of the public would view the situation. Case law: R v Sussex Justices.
• Real Likelihood and Danger of Bias: A stricter test requiring proof that there is a real danger the official will be influenced by interest. Case law: R v Gough (established the "real danger" test).

Consequences of Failure

• Void ab initio: A decision made in defiance of natural justice is void from the beginning.
• No Defense of "Same Conclusion": It is no defense to argue that the decision would have been the same even if a hearing had occurred.

Case Law: In Dickson Ngigi Ngugu v Commissioner of Lands: The Kenyan Court of Appeal ruled that the right to a hearing cannot be taken away by the "hopelessness of one's case".

Due Process in Public Administration

Due process comprises the principles and procedures regulating the exercise of both public and private power to prevent interference with vital interests, liberties, and livelihoods of individuals. The primary goal is to ensure that administrative actions meet requirements of legality, reasonableness, and procedural fairness.

Constitutional Basis (Kenya)

Article 47 of the Constitution of Kenya (2010) grants every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. It also grants the right to written reasons for actions that affect rights or fundamental freedoms.

Statutory Framework

The Fair Administrative Action Act, 2015 was enacted to give effect to Article 47.

Core Values

Due process protects human dignity, autonomy, and the right to be treated with equal respect.

A. Due Process in Adjudication

Adjudication involves determining the rights of specific individuals or groups by applying legal standards to a particular set of facts.

1. Key Principles of Natural Justice

• Audi alteram partem: The right to be heard.
• Nemo judex in causa sua: The right to an unbiased and impartial tribunal.

2. Evolution and Scope

Historically, natural justice only applied to judicial acts. The landmark case of Ridge v Baldwin expanded this, establishing that the duty to act judicially—and thus follow natural justice—arises whenever an administrative body exercises power that affects an individual's rights or interests.

Relevant factors for fairness include the nature of the decision, the importance of the decision to the individual, legitimate expectations, and the degree of deference to the decision-maker (see Baker v Canada).

3. Kenyan Case Law and Context

• Article 50 guarantees the right to a fair hearing.
• Article 159 vests judicial authority in both courts and tribunals, requiring them to administer justice without undue regard to technicalities.
• Joseph Mbalu Mutava v AG: JSC must observe Article 47 and provide minimum standards of a fair hearing in preliminary investigations for removal of a judge.
• Nicholas Randa Owano Ombija v JMVB: A private body (the Vetting Board) cannot rescind a decision of suitability or re-vet an individual without legal authority, as it violates finality and fairness.

B. Due Process in Policy and Rulemaking

Policy making (rulemaking) involves the formulation of generalized administrative standards, such as regulations, by-laws, and guidelines. It focuses on safeguarding the public interest rather than determining individual rights.

1. Key Principles

• Participation: Involving affected individuals and groups in the policy process.
• Consideration: Taking interests and concerns of those affected into account.
• Openness: Ensuring the public has access to the process and that reasons are given for decisions.

2. Kenyan Legal Framework

• Article 10(2): Establishes public participation as a mandatory national value and principle of governance.
• Statutory Instruments Act (2012): Requires rulemaking authorities to undertake appropriate consultation with persons likely to be affected by proposed rules and mandates Regulatory Impact Statements for costly rules.
• Fair Administrative Action Act (2015), Section 5: Requires administrators to give public notice of proposed actions and consider views submitted before taking action that materially affects the public.

3. Notable Kenyan Case Law

• Mbuini Mwa Environment Sand Harvesting v County Council of Masaku: By-laws were quashed because the Council failed to provide the mandatory 14-day notice and failed to provide the general purport of those rules to residents.
• Republic v City Council of Nairobi ex parte Kenya Taxi Cabs Association: Court nullified rules made via memo by the Town Clerk, ruling that fundamental alterations to by-laws must follow statutory rulemaking procedures, including public participation.
• Nairobi Metropolitan PSV Saccos Union v County of Nairobi: Constitutional requirement for participation is met if a body provides a reasonable opportunity for the public to know about and comment on an issue, such as through stakeholder forums and newspaper advertisements.
• Kenya Association of Stock Brokers v AG: Legislature has wide discretion in determining the manner of participation; direct participation does not negate indirect participation through elected representatives.

4. Administrative Safeguards

• Notice and comment procedures: Agencies must provide adequate notice and a window (typically 28 to 30 days) for public comments.
• Public inquiries: Useful for complex localized issues, allowing for evidence-gathering and public deliberation.

End of document.