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Administrative Law
Introduction: Meaning and Function of
Administrative Law
Readings from Bradley & Ewing- 605-620
 What is administrative law
o Administrative law is body of law that relates to public administration
 It relates to the management, performance and execution of public affairs and
duties.
o Formal Definition:
 Administrative law is a branch of public law that deals with the procedures,
composition, rights, liabilities and so forth of public bodies
o Tenets
 Power
 Discretion
 What is the difference between public and private law?
o Public Law
 Public law is a body of law that governs relationships between individuals and
the government, as well as those relationships between individuals which are
of direct concern to the society.
o Private Law
 Private law is a branch of the law that deals with the relations between
individuals or institutions, rather than relations between these and the
government.
 History
 Why did it develop?
o Administrative Law developed in order to
 What value does it add?
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o The value administrative law adds is that

 What purpose?
 Why does it facilitate governance?

Key Perspectives Relevant to Administrative Law

Readings from: Constitution, Democracy Economist Article, Good
Governance Article, Governance Report and Rule of Law Report
Good governance
 Governance
o Governance is the process by which authority is conferred on rulers, by which they
make the rules, and by which those rules are enforced and modified
o Governance is also the manner in which public officials and institutions acquire and
exercise the authority to shape public policy and provide public goods and services
 Good governance is:-
o Governance that is transparent, accountable, participatory, democratic, that adheres to
the rule of law, effective, equitable, inclusive, limited and that which is in line with
the various constitutional principles.
Democracy
 Democracy is a system of government in which power is vested in the people, who rule
either directly or through freely elected representatives.
 Gettysburg address
Rule of Law
 The rule of law is a principle of governance in which all persons, institutions and entities,
public and private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated.
o The laws are meant to be consistent with international human rights norms and
standards. require adherence to the principles of supremacy of law, equality before
the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency. (Report of the Secretary-General: The rule of
law and transitional justice in conflict and post-conflict societies” (2004)
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 It applies nationally mainly through Constitutions and Internationally through various

charters and treaties
 Principles include
o 1. Laws should be open & clear
 2. They should be relatively stable and allow people to predict their actions in
accordance with the law
o 3. There should be an outlined procedure in law making
o 4. There should be independence of the Judiciary
o 5. Natural Justice should be upheld
o 6. There should be judicial review
o 7. Courts should be accessible
 The right to life, liberty, and property can only be limited or taken away through the law
 Those in power are not above the law and are limited by it
 Article 10
 Preamble
 Njoya
Separation of Powers
 Montesquieu
o 1. His concept further elaborates that no organ is above the other and each should
carry out its functions without interfering with functions of another.
 John Locke
 Upholds 3 things
o 1. Separation of personnel
o 2. Separation of functions
o 3. Organs should not interfere with another but there should be clear checks and
balances
Human Rights

Right to fair administration

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Constitutional underpinning of admin law in Kenya

 Preamble
 Article 1, 2, 10, 19, 20, 47, 232

Administrative Authorities; Types and Functions of

Administrative Authorities
Readings: Constitution of Kenya Devolution laws, Acts Establishing
Commissions, State Corporations Act
 Devolution Laws Include:
o County Governments Act, Intergovernmental Relations Act, Transition to Devolved
Government Act, National Government Coordination Act
 How do you determine a public body?
o Statute
 State Corporations
 KSLA
 CBKA
 If it performs a function which is derived from statute
o Constitution
 Executive
 Chapter 9 of the Constitution, Article 129, 130
 The national executive of Kenya comprises the President, the Deputy
President and the rest of the Cabinet
o Presidency
 Part 2 of Chapter 9 deals with the office of the
President and Deputy President and among other things
covers the functions, powers and qualification of the
office holders
o Cabinet
 Part 3 of Chapter 9 deals with the Cabinet and among
other things covers the establishing of offices,
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accountability of the Cabinet, limiting the Cabinet and

the members of the Cabinet
 Public Service
o Attorney General
 The office of the Attorney General is established under
Article 156
o Director of Public Prosecution
 Established under Article 157
 Legislative
 Chapter 8, Art 94
 National Assembly
 Senate
 Judicial
 Chapter 10, Art. 165
 Tribunals
 County Governments
 Commissions and Independent Offices
 Chapter 15, Article 248, 249
 Private institutions may also be subject to administrative law
o Justice Visram article
o Patel & Others v Dhanji & Others

Fundamental Principles of Admin Law

Principle of Natural Justice
NB: Readings: Kaluma, Chapter 6 (p175-232): Lumumba Chapter 3
(p 36-48)
 Adherence to the rules and principles of Natural Justice is a fundamental tenet of
Administrative Law.
 Natural justice entails certain procedural guarantees for fairness in the course of the decision
making process of an administrative body
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 In public law especially, the rules of natural justice entail 2 key procedural ideals
o Nemo judex in re causa sua
 This literally means that no man should be a judge in his own cause
 It is often simply referred to as “the rule against bias”
o Audi alteram partem
 This is simply referred to as the right to be heard
 The rules of natural justice embody these ideals and aim at securing fair and just treatment
for all parties from bodies to which they are subjected
 In addition to these 2 fundamental ideals, there are several other principles that have been
established in order to promote and give effect to the rules of natural justice
 Furthermore, these ideals are not fixed, but rather develop and are refined across time, in
scope and application. Thus, judges take into account specific facts and circumstances in
each case, including the nature of the decision making body, the proposed action to be taken,
the grounds on which the action is proposed, the materials on which the allegations are
based, the nature of the plea amongst several others.
 Natural justice is simple ordinary justice and does not demand proceedings with
technicalities.

The Right to be heard

The right to be heard, audi alteram partem1, imposes an absolute duty on every person, body or
tribunal vested with power to resolve a dispute to fairly hear both sides of the case before making
a decision on the matter.2 Bodies should not base their decision only on hearing one side, it must
hear both sides and grant equal opportunity to both parties.
This rule is traced back to the genesis of man, where God, Himself, granted this right before
passing sentence

Prior Notice
 Prior notice must be given by the presiding body to an affected party of a case before
adjudication commences, so they may prepare adequately and defend themselves

1
Hear the other side
2
No man should be condemned unheard!
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 Hearing that is undertaken without due notice to the affected party violates the
requirements of natural justice, is null and void and lends itself to being quashed.
 In principle, the requirement of notice will be logically baseless if it is not aimed at
enabling the affected party to prepare for the case affecting them
 R v Thames Magistrates Court
o Case quashed for breach of the rules of natural justice for the reason that the
defendant, although notified, had not been given sufficient time to prepare his
defence
 In order for a notice to be proper, they should state the subject matter of the dispute, the
accusation or charge with clarity, specificity, accuracy and precision.
o A breach of natural justice may be successfully pleaded where notice given is so
vague or ambiguous as to influence against satisfactory preparation of defence by
the individual affected
 The sufficiency and reasonableness of notice depends on the facts and circumstances of
each particular case. Nonetheless, it should contain sufficient detail including the
complaint or charge, the time, day and location of the incident and similar information on
the tribunal
 R v KMTC ex parte James Chepkonga Kandagor
o High court allowed application seeking orders of certiorari to quash proceedings
of a disciplinary committee on account of want of due notice
 The notice was brought to the attention of the student on the same day for
a meeting to be held at 2:30
 Daniel Nyongesa v Egerton University College
o High court allowed upheld the rules of natural justice where students were denied
their results after the university claimed that they were expelled even when the
students were unaware of this and were not called before any disciplinary
proceedings, as well as given prior notice to the claims against them.

Adjournment
 Where an opportunity to adequately prepare and duly defend oneself may at times make
it inevitable that the proceedings be adjourned
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 Adjournment should be granted in situations where an individual is unable to attend the

proceedings to which they are a party especially when it is due to genuine, reasonable
requests or circumstances
 R v South West London Supplementary Benefit Appeal Tribunal
 Denial of adjournment was held unlawful where party had to attend interview

Cross examination
 The right to be heard not only involves the disclosure of all evidence and materials to be
used against a party, but also the opportunity to rebut such evidence and materials. Cross
examination is one such method for establishing the truth and falsehood from these
rebuttals
 It is not always essential, but whether it is depends on the circumstances
 In regard to oral evidence, when witnesses are examined against a person, the person
affected has a right to cross examine the witness. The denial of this amounts to a
violation of the person’s right to be heard
 In exceptional circumstances such as in the Indian case of Gurbachan Singh v Bombay,
this right may be denied if in the best interest of the witness and their rights
 Other than the cases where this right is conferred by statute, it is the duty of the affected
party against whom evidence is given to demand the opportunity to cross examine.
 A person who fails to make use of this right, such as in the case of University of
Ceylon v Fernando, is precluded from complaining
i. The same was held by the Privy Council in this case and the student was
not allowed the application

Legal representation
 Although previously emphasis was not placed on having lawyers at informal, domestic or
quasi-judicial bodies and proceedings, currently prominence is placed on the inclusion of
legal representation in proceedings
 The denial of the right to legal representation in proceedings is the denial of the right to
natural justice
 In the case of Geoffrey Mwangi Kariuki v University of Nairobi, the court upheld this
principle when a student was denied the right to legal representation during proceedings,
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after allegations were brought against him. The court found that this was a violation of
the rules of natural justice.
 A request for counsel should be made early enough for the counsel to substantially
conduct the proceedings having adequate

Disclosure of information
 Disclosure of information entails the right to know the opposition’s case and enables the
affected party to have a fair and proper notice of the issues intended to be raised against
them.
 It avoids ambush and surprises during proceedings
 In order to uphold this rule, an authority cannot base its decision on any material or
evidence which the affected party has not been given a chance to see and rebut
 In Kanda v Government of Malaya, a conviction was quashed where one of the parties
was denied the opportunity to see a information laid out against them
 Irrelevant information or information that is not material to the case need not be disclosed
 In R v KMTC ex parte Kandagor, the court also emphasized that a person being tried is
entitled to disclosure of the charges and evidence against them and it is the duty of the
other party to disclose this both at the pre-trial stage and continuously during the trial

Giving reasons
 The need to give reasons is grounds for judicial review in Kenya and has been enshrined
in Article 47(2) of the Constitution. This right grants persons whose right or fundamental
freedom has been or is likely to be adversely affected by administrative action the right to
be given reasons for the action.
 The necessity of reasons is that it brings to light any fault in the decision making that
brings it within the purview of judicial review.
 A body that fails to give reasons and explain its decisions exposes itself to being
condemned unreasonable
 An authority must justify their decision based on the circumstances. The authority may be
said to be acting ultra vires in its jurisdiction where the reasons given are irrelevant,
unreasonable or based on extraneous matters
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 In Jopley Constatine Oyieng v PSC of Kenya the court of appeal set aside a decision by
another court when the judge failed in stating reasons for his decision

Opportunity to be heard
 A body empowered to decide a matter must grant an the person against whom an action
is brought a real, reasonable and effective opportunity to defend themselves and to
correct or controvert evidence brought against them – with adequate time to prepare their
defence and be prepared to adjourn if this has not happened
 If an ex parte party fails to appear they should restore a case for fair hearing where good
reasons are given for failure to appear
 An affected party must also be disclosed to all information to be used as evidence against
them. Similarly, in R v Architects Registration Tribunal ex parte Jagger a decision by a
court was quashed when a party was not allowed to see documents being used against
them
 The opportunity to be heard also warrants a good atmosphere to put forth a case, which is
free from any conduct that may amount to harassment
 In order to maintain their partiality, decision making authorities should give free-hand to
parties or counsels to conduct their cases however they deem fit without descending in
the dispute arena

Oral hearing
 Natural justice does not require oral hearing in all cases. However, whether or not hearing
is meant to be oral depends on the provisions of the relevant statute, the nature of the
decision-making body, and the gravity of the decision to be made.
 This right should not be insisted upon, unless refusal thereof would occasion substantive
prejudice or injustice to a party or undermine the very essence of hearing, which is to
afford a party the opportunity to defend themselves.
 In Charles Kanyingi Karina v Transport Licensing Board, the court denied this
right where police sanctioned PSVs who were caught in violation of the speed
governor rules
 In some instances, the requirement of hearing may be satisfied by written representation
and not necessarily verbal ones
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 Court decisions in this area emphasize that the necessity of this depends on the nature of
the tribunal, the gravity of the issues at stake, the complexity of the matters arising from
the proceedings and the law applicable

Delegated decisions
 Delegated decisions encompasses the idea that decisions might not be made by the person
who heard the evidence
 There is a strong presumption against delegated decisions, but in some instances it is
permissible
 The cases of Local Government v Arlidge & Morgan v United States provides good
authority for delegated decisions

Consequence of failure of a hearing

 Hearing is a mandatory requirement in all circumstances where it is applicable and a
person may challenge a decision on this account.
 It is not a defence for one to claim that the decision-making authority would have come
to the same conclusion even if hearing had been afforded to the affected party. The same
was upheld in Malloch v Aberdeen Corporation & r v Secretary of State for the
Environment.
 In the case of In Dickson Ngigi Ngugu v. Commissioner of Lands, the Kenyan Court of
Appeal emphatically judged that “the right to a hearing before any decision is taken is a
basic right and it cannot be taken away by the hoplessness of one’s case
 The High Court also upheld this rule in the case of R v Staff Disciplinary Committee of
Maseno University, where they stressed the obligatory nature of this requirement
 This requirement does not connote that all decision-making bodies are required to preside
over the proceedings as a party drags proceedings

Rule Against Bias

 The rule against bias is embodied in the Latin phrase, nemo judex in re causa sua, which
literally means ‘no man shall be a judge in his own cause’. This rule imposes the requirement
of impartiality in decision making and prescribed under Article 50 (1) of the Constitution of
Kenya.
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 Bias should be avoided as far as it relates to the judicial role of a judge, although this does
not presuppose a complete absence of bias, passion or personal affection toward particular
things or issues
 Whenever there is a reason to suspect bias, it is no defence to argue that even a totally
disinterested tribunal would have come to the same decision. Accordingly, the House of
Lords set aside a decree in a case where a judge had an interest in the case even when they
later came to affirm the case on its benefits.
 Bias is a state of mind which prevents the judge from making an objective determination of
the issues that he has to resolve. Thus, an essential element of natural justice in the judicial
process is that a judge has to be impartial and neutral in order to apply their mind objectively.
 Bias ordinarily takes the following 3 forms:-
 Pecuniary bias
 These are instances where the decision making body or authority has a pecuniary
interest in the outcome of the case
 A direct pecuniary interest in a case, however small or insignificant, automatically
disqualifies a judge, magistrate, tribunal or other decision making authority or
body from proceeding with the case
 London & NW Railway v. Lindsay
 Personal bias
 This is where the decision making body or authority may be inclined to favor a
party as against the other due to relationship, or friendship to a party or witness or
due to some passion extraneous to the issues in dispute
 Personal bias may arise in various circumstances such as through personal
friendship or relationship between the judge and one of the parties.
i. Tumaini v R
 It could also be through some hostility or animosity against a party
i. R v Inner West London Coroner
 It could also occur where a judge participated in proceedings leading to the
hearing so that the judge can be regarded as both the accuser and the judge or by
their expression of views prior, which gives hints to bias
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 In the case of Kamlesh Pattni and Goldenberg International v R, where a judge

was said to be biased against a party based on his conduct toward him in other
unrelated proceedings prior to the case
 Similarly, in the Court of Appeal case of Galaxy Paints Co Ltd v Falcon Guards
Ltd, the court upheld that a judge should not preside over a case where they have
personal bias due to a relationship and the like or where they may be personally
hostile to a party as a result of events happening either before or during trial
 The relationship alleged must be material and not so remote. If it is a mere
allegation of friendship and nothing more, then it is not sufficient grounds for
disqualification as established in the CoA case of AG v Revolving Tower
Restaurant.
 The case of Musiara Ltd v William ole Ntimama sets important precedent on
disclosure. Here, a judge who had a previous professional relationship with one of
the parties presided over a case. The judge had however disclosed this
information and asked both parties whether they had objection to his presiding
over the case and both parties had agreed. The case was not set aside.
 This decision is to be contrasted with the decision in Trust Bank Ltd v Midco
International Ltd, where the judge did not disclose information about his previous
professional relationship with the party and so the court set aside the decision on
account of bias and conflict of interest on the part of the judge
 Bias as to the subject matter
 Bias as to the subject matter arises from prejudices or circumstances which may
predispose a judge towards or against a particular view of the evidence or issues
before them
 A court, tribunal and judge should disqualify themselves on the ground of
strongly held beliefs, feelings or intimate connection, which they fear might affect
their judgment in determining the case
 In PUC v Pollak, the presiding judge removed himself from the case on the
grounds of close intimate connection between himself and the issue at hand.
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 Black v Black, illustrates both personal bias and bias to the matter where the
decision by a magistrates court on custody was quashed on account of the
magistrate’s apparent bias against the husband
 The connection between the judge and the dispute must be strong otherwise there
is no grounds for disqualification as in the case of R v Mwalulu,

Test of Bias
 The test in determining bias is usually difficult and has been divided between actual and
apparent bias
 Actual Bias
o This occurs where a judge is proved that a judge or decision-making body has been
influenced by partiality or prejudice in reaching a decision or where prejudice is
proven
o These are cases where in the absence of the real likelihood of bias and in the absence
of pecuniary and other interests, and in the absence of the real danger of partiality,
bias does actually occur and in this situation the test is whether there was actual bias.
o Proving actual bias is often difficult as it is difficult to explore the state of mind of a
particular authority
 Apparent Bias
o This is where circumstances exist which give rise to reasonable apprehension or
suspicion that the judge must have been biased
o Due to the difficulty in determining actual bias, the common approach is to consider
the material circumstances and apparent bias.
 Various tests have been developed to denote the moral culpability of decision-making bodies
on charges of apparent bias; they include:-
i. Reasonable Suspicion and Apprehension of Bias
1. The reasonable apprehension or suspicion of bias test was enunciated by the case
of R v Sussex Justices, where the fact that a clerk, who was linked to one of the
parties to a case, retired with the justices and gave an appearance of the possibility
of bias, which was held to be enough to lead the quashing of the verdict.
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2. It places emphasis on matters of the appearance of impartiality and based on the

premise that public confidence in the administration of justice is more likely to be
maintained if courts adopt a test that reflects the reaction of the reasonable
member of the public to the allegation in question
3. The reference to phrases like “reasonable person/man” indicate that it is the
court’s view of the public which should determine things
4. Since this test gave rise to an avalanche of cases with remote suspicion and no
material suspicion of bias, the court came up with another test
ii. Real Likelihood and Danger of Bias
1. The real likelihood of bias test imposes a greater obligation on the person alleging
bias on the part of a judge to strictly prove the allegations
2. Circumstances in which the court will conclude that there was a real likelihood of
bias include cases where the decision maker has an interest in the matter under
consideration. Interest may be pecuniary, interest may also be adverse (adverse
interest suffices).
3. In R v Camborne Justices ex parte Pearce, the court applied the real likelihood of
bias test and found that on the full facts, there was no real likelihood of bias
4. Circumstances in which the court will conclude that there was a real likelihood of
bias include cases where the decision maker has an interest in the matter under
consideration. Interest may be pecuniary, interest may also be adverse (adverse
interest suffices).
iii. Real Danger of Bias
1. This is another of the tests that the court will apply in determining the presence or
absence of bias. The consideration is whether there is a real danger that a public
official or body participating in a decision will be influenced by a personal
interest in the outcome of a case. The question to ask is how significant the
interest is and how closely or remotely related to the issue it is.
2. In the real danger test the consideration is whether there is a real danger that an
official participating in a decision will be influenced by a pecuniary interest and
how close is it to the matter decided or how remote.
3. R V. Gough [1993] A.C. 646
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Bias and the Independence of the Judiciary

Effect of failure of Natural Justice
 A decision reached by a tribunal wholly outside their jurisdiction and in complete defiance of
natural justice is void ab initio but if no one challenges it they may be affected by it beside it
being void.

Conclusion
Discretion [Readings: Lumumba Chapter 4 (49-69)]
 Introduction
o Discretion is a right to act in certain circumstances and within given limits and
principles on the basis of one’s judgment and conscience
o An element of discretion under the law that is essential to the lawful exercise of
discretion and indeed all powers is that it should be exercised by the authority upon
whom it is conferred and by no one else.
o However, the proper authority may share its power with someone else or may allow
someone else to dictate to it their wishes or instructions.
 Although, if exercised by the wrong authority, the resulting decision is ultra
vires and void
 Discretion is a right to act in certain circumstances and within given limits and principles
on the basis of one’s judgement and conscience.
 An element which is essential to the lawful exercise of discretion, and indeed all powers,
judicial or administrative, is that it should be exercised by the authority upon whom it is
conferred, and by no one else.
o The effect then is that if the discretion conferred by Parliament is exercised by the
wrong authority, the resulting decision is ultra vires and void.

JUDICIAL DISCRETION
 Judicial discretion is the power of the judiciary to make some legal decisions according
to their discretion. Under the doctrine of the separation of powers, the ability
of judges to exercise discretion is an aspect of judicial independence. Where
appropriate, judicial discretion allows a judge to decide a legal case or matter within a
range of possible decisions.
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 The remedies, for instance, that are available in natural justice cases – certiorari,
prohibition, mandamus – are discretionary. Th4e court has power to withhold them as it
thinks fit. In normal cases the remedy accompanies the right. But the fact that a person
aggrieved is entitled to a remedy ex debito justitiae (as a matter of right) does not alter
the fact that the court has power to exercise it discretion against him.
 The leading principle on the exercise of the Court’s discretion is that the discretion is
intended to be exercised to avoid injustice or hardship resulting from accident,
inadvertence, or excusable mistake or error, but is not designed to assist a person who has
deliberately sought, whether by evasion or otherwise, to obstruct the course of justice.
 One of the leading authorities on the exercise of judicial discretion is the celebrated case
of Mbogo & another v Shah. Respondent was knocked down and injured by a vehicle
which was owned by the first appellant and driven by the second appellant. The
respondent notified the insurance company of the vehicle that he intended to hold that
company liable to compensate him, and he served it with a notice under the insurance
(Motor Vehicles Third Party Risks) Act, Section 10(2) (a). The company in
correspondence denied liability.
 The company’s advocate, however, refused to accept service of the proceedings filed by
the respondent against the appellants and service was effected by advertisement. No
appearance was entered and no defense was filed and the respondent obtained ex parte
judgement against the appellants, which the insurance company then applied to set aside.
Its application was refused by the High Court and it appealed. The CoA dismissed the
appeal saying, inter alia that in the circumstances, the judge exercised his discretion
properly to refuse the application to set aside the judgement
 Judicial discretion nevertheless is not limited to acts of judicial officers. Parliament may
enact a law that requires the administrative authority concerned to act judicially in giving
its decision. (Re An Application by Evans Maina) Customs Guy

EXECUTIVE DISCRETION
 Most of the things that administrative authorities are empowered to do involve the
exercise of discretion; decisions have to be made in the public interest, based on policy.
The rules about judicial control of discretion fall into two classes;
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o First, the discretion given by Parliament must be protected. It must be exercised

by the proper authority only and not by some agent or delegate.
o Secondly, the discretion must not be abused. E.g. a minister may not act for
wrong motives or on irrelevant considerations or arbitrarily or unreasonably.
 Courts intervene not only to prevent powers being exceeded but also to prevent them
being abused. The justification for this is that the exercise of a discretion for an improper
purpose or without taking into account all relevant considerations is regarded as a failure
to exercise the discretion lawfully.
 It would appear that the test courts use to determine the propriety of an executive or
administrative exercise of discretionary powers is whether the complainant has some
interest or right, or as lord denning stated:
o Some legitimate expectation, of which it would be unfair to deprive him without
hearing what he has to say.

DELEGATION OF AUTHORITY
 The most fundamental essential power lawfully bestowed upon a person or a body is that
it should be exercised by the person or the body upon whom it is bestowed.
 Therefore the improper composition of a body will negate its decision as will the
purported exercise of authority by an improper person or body. (Lane v Norman)
 Delegation of authority is acceptable as long as the enabling Statute permits such
delegation. Once authority has been delegated the delegate should not delegate. This is
the essence of the principle of delegatus non potest delegare.
 The legal effect of improper delegation is to render a decision of the delegate invalid.
This was judicially recognized in the case of Allingham v Minister for Agriculture,
Fisheries and Food…farmer ordered under wartime legislation to plant..but by executive
officer and not local committee.
 The import of the judicial position is that when a Statute confers power upon a body, then
unless there is an express provision legitimizing delegation, any purported delegation will
be improper ab initio and any decision by the improperly appointed delegate will be null
and void.
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IMPROPER EXERCISE OF DISCRETION

 An administrative body has the authority to exercise discretion whenever the limits of his
statutory authority leaves him to decide between two or more causes of action or inaction.
 Whenever circumstances give rise to the exercise of discretion:
1. Discretion must be exercised properly;
2. Discretion must be exercised reasonably;
3. Discretion must be exercised by the proper authority only and not by a delegate;
4. Discretion must be exercised without restraint;
 Certain circumstances will give rise to improper exercise of discretion which includes:
1. Exercising discretion for improper motive;
2. Where power to exercise discretion is delegated to a person who is not charged with
the responsibility in question;
3. Where discretion is exercised so as to serve self-interest.
 In the case of Fernandes V. Kericho Liquor Licensing Court [1968] E.A. 640, authority to
grant licenses was granted and the defendants decided they were only going to give liquor
licences to Africans. The Court ruled that they had exercised their discretion improperly by
deciding to issue licences only to Africans.

Judicial Review
Introduction to Judicial Review
 Judicial Review is the law concerning the control of the powers, functions and procedures of
administrative authorities and bodies discharging public functions by the courts
 This is ‘the jurisdiction of the superior courts to review the acts, decisions and omissions of
public authorities in order to establish whether they have exceeded or abused their powers’.3
(Chief Constable of North Water Police V. Evans [1982] 1 WLR 1155.)
 It is also where the High Court exercises its supervisory jurisdiction over the proceedings and
decisions of subordinate courts, tribunals and other bodies that perform public functions
 Judicial Review is a control aspect of administrative law that deals with control through the
court process
3
Michael Allen & Brian Thompson, Cases and materials on constitutional and administrative law, (9 Edn: Oxford
University Press) (2006)540
20 | P a g e Abishua

 Overtime, the courts have thus developed guiding principles on how to determine the
excesses and abuses of these powers. These are the grounds for judicial review.
 These principles have in recent decades increased and new grounds for seeking judicial
review have emerged. This has widened the scope of JR to institutions that were previously
thought to have been beyond the reach of JR
 While courts exercise their JR jurisdiction, they ensure that executive authorities do not
exceed their lawful jurisdiction or authority and that even within this jurisdiction, that public
powers are exercised prudently reasonably, fairly, in good faith, and in full accord with the
legitimate expectations of those affected

Meaning and Foundation of Judicial Review (JR)

 The process of judicial review is essential for any constitutional democracy and is founded
upon the rule of law.4 Every administrative authority making decisions of a public nature
must be held accountable for their decisions. Judicial review can thus be termed as a judicial
process of accountability by public authorities. It is meant to protect an individual against
abuse of power by a wide range of public authorities: judicial, quasi – judicial, and
administrative bodies. 5It does not take away the powers of these bodies to make such
decisions but only ensures that such bodies exercises their powers in a proper manner.6
 The method of seeking a review is through a claim for judicial review is provided for under
the Civil Procedure Act: to be looked at in detail later. In the Claim for judicial review the
court may grant one or more of the following remedies:
1. A quashing order (Certiorari): quashes an unlawful decision of a public authority
2. A prohibiting order (Prohibition): prohibits an unlawful act which a public authority
is proposing to perform
3. A mandatory order (order of mandamus): compels a public authority to perform a
public duty

4
A W Bradley & KD Ewing, Constitutional and Administrative Law (5 edn), (2011) 669
5
Chief Constable of North wales Police v Evans (1982) 1 WLR 1155, House of Lords per Lord Hailsham
6
As above
21 | P a g e Abishua

Ultra Vires Doctrine

It has been argued that the ultra vires doctrine is the basis of judicial review and that the function
of the courts in the exercise of their JR jurisdiction, is simply to police the exercise of power to
ensure it accords with the intention of Parliament as the donor of powers.

In light of this, proponents of this belief then argue that all other grounds of judicial review are
mere instances and components of the ultra vires doctrine. Thus, the assertion is that power is
ultra vires when it is exercised in a manner that abuses power, that is based on irrelevant
considerations, that is made in bad faith, that is unreasonable, that is unfair or that is contrary to
the legitimate expectations of the subject because Parliament did not intend for the power to be
exercised in such a manner. Therefore its derogation from the Legislative intent is ultra vires.

This assertion has been supported in several cases such as Kruse v Johnson, where the court held
that unjust and oppressive exercise of power is ultra vires.

In addition to this, the ultra vires doctrine is said to regard the rules of natural justice as implied
mandatory requirements to be applied in the application of any legislation. Therefore, any
contravention of the rules of natural justice would then be ultra vires. The same was upheld in
the case of Rita Biwot v CLE
22 | P a g e Abishua

Common Law School

Rule of Law & JR

Supremacy of Law

Equality before the Law

Formal Justice

Rule of Law as the Basis of JR

Ministerial and Discretionary Functions

Judicial Review, Review and Appeal Distinguished

Judicial Review v Appeals

 Whereas an appeal is concerned with a decision, (it is concerned with whether a decision was
right or wrong) judicial review is concerned with the decision making process.
 According to Order 44 of the Civil procedure Rules, the difference is as follows:-
o Appeals involve appellate jurisdiction with the matter being taken to a tribunal that
is higher in hierarchy for determination.
o The court is meant to decide whether the decision being appealed against (by an
administrative body) was right or wrong.
o If it determines the decision to be wrong, the court sitting on appeal can substitute
its decision for that of the public authority.
 The following case illustrates the difference between an appeal and review
o In the case of Mirugi Kariuki v. Attorney General the Appellant was charged with
Treason. He petitioned the Attorney General to grant leave to an English Barrister to
lead his defence. In the exercise of his absolute discretion to consider such a request
conferred by Section 11 of the Advocates Act, the Attorney General wrote a letter to
the Appellant saying that leave would not be granted because the Appellant’s trial
was straight forward and would not require the assistance of a foreign advocate. In an
23 | P a g e Abishua

application for Certiorari to quash the Attorney General’s decision, the court found
that the grounds on which the Attorney General’s grounds were founded were
suspicious. The Court removed the offending letter to the High Court quashed it and
directed the Attorney General to reconsider Mr. Kariuki’s request in a manner more
respectful to the norms of sound administration.
 Here point is that even if the law was not followed in the first place, the court
can order that body to reconsider the matter through a review.
 With Appeals, if there is a right of appeal and an appeal succeeds, the Appellate Court will
substitute its own decision for that of the inferior tribunal and dispose of the case
accordingly.
 Another attribute of appeal is that it is granted by statute.
o Unless a statute expressly allows appeal, an aggrieved party cannot lodge an
appeal against a decision. In cases where appeals are allowed against administrative
decisions or actions, the relevant law will expressly state that Appeal is allowed.
 On the other hand in judicial review, the court exercises inherent powers which gives it
authority to review unlawful decisions. In other words, there need not be express statutory
provisions authorizing the High Court to exercise judicial review over an administrative
decision, or an administrative action.
 Thus, even if a statute specifically excludes appeal to a Higher Court, this does not bar the
High Court from exercising powers of judicial review. The same was upheld in the case of
Kenya Airways Limited v. Kenya Airways Pilots Association

Judicial Review v Reviews

 Judicial review is a review of an act or a decision of an administrative body.
 Reviews are a re-consideration of a decision with the possibility of amending.
 Normally, review involves the same court or tribunal that made the decision to revisit its
own decision. Ordinary Review is a review of judgment or order of a court of law.
 Order 45 provides as follows:
1. [Order 45, rule 1.] Application for review of decree or order.
1) Any person considering himself aggrieved…by a decree or order…and who from the
discovery of new and important matter or evidence which, after the exercise of due
24 | P a g e Abishua

diligence, was not within his knowledge or could not be produced by him at the time
when the decree was passed or the order made, or on account of some mistake or
error apparent on the face of the record, or for any other sufficient reason, desires to
obtain a review of the decree or order, may apply for a review of judgment to the
court which passed the decree or made the order without unreasonable delay.
2) A party who is not appealing from a decree or order may apply for a review of
judgment notwithstanding the pendency of an appeal by some other party except
where the ground of such appeal is common to the applicant and the appellant, or
when, being respondent, he can present to the appellate court the case on which he
applies for the review.
2. [Order 45, rule 2.] To whom applications for review may be made.
1) An application for review of a decree or order of a court, upon some ground other
than the discovery of such new and important matter or evidence as is referred to in
rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the
face of the decree, shall be made only to the judge who passed the decree, or made
the order sought to be reviewed.
2) If the judge who passed the decree or made the order is no longer attached to the
court, the application may be heard by any other judge who is attached to that court at
the time the application comes for hearing.
3) If the judge who passed the decree or made the order is still attached to the court but
is precluded by absence or other cause for a period of 3 months next after the
application for review is lodged, the application may be heard by such other judge as
the Chief Justice may designate.
3. [Order 45, rule 3.] When court may grant or reject application.
 Where it appears to the court that there is not sufficient ground for a review, it shall
dismiss the application.
 Where the court is of opinion that the application for review should be granted, it
shall grant the same:
• Provided that no such application shall be granted on the ground of
discovery of new matter or evidence which the applicant alleges was not
25 | P a g e Abishua

within his knowledge, or could not be adduced by him when the decree or
order was passed or made without strict proof of such allegation.
 Thus, a review cannot be done on the merits of a case but upon discovery of new evidence
not within the knowledge of the applicant at the time the decision was made unless such
an applicant is based on ‘a patent error’7. As pointed above, the merits of a case are re-
consideration on an appellate jurisdiction. The courts therefore, have to exercise some
discretion in deciding whether to take up a matter for review or not.
 Judicial review is supervisory in nature and the courts are meant to ensure that the applicant
is given fair treatment by the authority to which s/he has been subjected.
 It does not seek to substitute the opinion of the court for that of the public authority.
 The court ensures that the lawful authority bestowed unto these public authorities is not
abused. It does not extend to attempting itself the task entrusted to these authorities by law.8
 In similar breadth, Lord Brightman upheld the observations of Lord Evershed9 thus:10
o I do observe again that it is not the decision as such which is liable to review; it is
only the circumstances in which the decision was reached, and particularly in such a
case as the present, the need for giving the party dismissed an opportunity for putting
his case.

Judicial Review Orders

 The court’s JR jurisdiction may be invoked for various reasons including:-
o Certiorari – An application for JR to have a decision of a public body quashed
o Mandamus – An application for JR to secure the performance of a public duty
o Order of Prohibition – An application to restrain the performance or continuance of
an unlawful action
 In Kenya, only the orders of mandamus, certiorari and prohibition are available to an
applicant for judicial review.
o Actions for damages, declarations and injunctions though available for JR
proceedings in England are not available to applicants for JR in Kenya

7
An error that is apparent on the face of the record. This is an obvious error, self-evident and need no elaborate
argument to establish it
8
Chief Constable of North wales Police v Evans (1982) 1 WLR 1155, House of Lords per Lord Hailsham
9
Ridge v. Baldwing (1964) AC 40 at 96
10
Chief Constable of North wales Police v Evans (1982) 1 WLR 1155, House of Lords per Lord Brightman
26 | P a g e Abishua

Certiorari
 An order of certiorari is designed to prevent the abuse of power and its purpose is to ensure
that an individual is treated fairly by the authority to which they are subjected
 Certiorari is concerned with the decision making process by authorities and is issued by the
court when the decision was reached without or in excess of jurisdiction, in breach of the
rules of natural justice or contrary to law (Cpt. Geoffrey Murungi v AG)
 It primarily involves the review of decisions by decision making bodies and authorities
 Certiorari quashes a past decision or action. Therefore, an order of certiorari is issued only
when the matter in question has been concluded or disposed of and a decision rendered.
 An application for certiorari is therefore a challenge to the manner in which the decision
was arrived at
 The case of Captain Geoffrey Murungi v AG, summarized the nature of JR:-
o Certiorari deals with decisions already made and is issued when the court decides
that the decision under attack was reached without or in excess of jurisdiction, in
breach of the rules of natural justice or contrary to law
 The effect of an order of certiorari is to restore status quo and the situation that existed
before the quashed decision was made
 In the case of Majid Cockar V. Director of Pensions the pensions department made a mistake
in their calculations of the CJ’s pension. The former Chief Justice went to court and upon
application for Judicial Review the court issued the order of certiorari to quash the decision
awarding the former CJ an amount of money as pension.
 For Certiorari to be issued, as well as any one of the 3 orders to be issued, a person must be
having Locus Standi which is crucial as you must have the capacity to sue.
o You have capacity to sue by having a sufficient interest in the matter.. You have a
sufficient interest in the matter if you will be directly affected by the matter. If you
don’t have sufficient interest in the matter, the court will not grant you any of the
orders

Prohibition
 An order of prohibition restrains authorities or bodies from assuming jurisdiction where there
is none or from doing what they are not authorized to do
27 | P a g e Abishua

 It does not lie to correct the practice or procedure of an inferior tribunal or a wrong decision
or the merits of the proceedings
o It is neither a means of reviewing errors nor a way of inquiring into past irregularities
 Prohibition is an order issued by the High Court which prohibits a body (administrative
bodies) from continuing proceedings; it will also prohibit a body from continuing to carry out
decisions wrongly or wrongfully made.
 An order of prohibition looks to the future and is meant to contain or stop the anticipated
event
 It is completely unavailable for a decision already made
 In KNEC V R ex parte Geoffrey Njoroge, the court asserted that an order of prohibition
cannot quash a decision already made, it can only prevent the making of a(n)
contemplated/anticipated decision
 It can be issued to:-
o Stop a public body from continuing proceedings that are ultra vires.
o Stop an administrative body from continuing to do something in excess of jurisdiction
o Stop an administrative body from abusing their powers.
 In the case of R v Electricity Commissioners Ex parte Electricity Joint Committee, Lord
Denning stated that an rder of prohibition is available to prohibit administrative authorities
from exceeding their powers or misusing them.
o This illustrates the point that prohibition will lie to restrain an administrative body
from doing something wrongly or misusing its power, (abuse of power etc.)
 In Kenya, the order of prohibition has been of great utility in safeguarding fundamental rights
and freedoms including the right to fair hearing and fair administrative action
 Similarly, in R v Chief Magistrates Court ex parte Amtrak Singh, prohibition was granted
where the criminal proceedings complained of did not disclose a criminal offence

Mandamus
 An order of mandamus is an order of the court under JR which compels a public body to act
according to their mandate
 The word mandamus comes from the Latin word mandare which means “we command”
28 | P a g e Abishua

 The order is thus a command issued by the High Court or other superior court, which has the
requisite jurisdiction, to an administrative authority or subordinate tribunal directing it to
perform a peremptory duty imposed upon it by law
 The order can be issued when a body omits to decide a matter it is bound to decide, when a
body denies itself jurisdiction which it has in law or where an authority vested with power
improperly, unreasonably or unfairly refuses to exercise it.
 An order of mandamus is also issued against any kind of authority to enforce a duty whose
performance is imperative and not optional or discretional
 When an authority fails in its legal duty to implement an order of a tribunal, an order of
mandamus can also be issued compelling it to do so
 The duty to be compelled by the order need not be statutory; it only need be mandatory and
may arise from, et al, legitimate expectation in due performance of the task in question.
 An applicant must satisfy the court that they have the right to compel the public authority to
perform the duty in question, without which the order of mandamus cannot be granted
 An applicant can invoke the jurisdiction of the High Court to command performance after the
affected person has demanded performance, which demand has been met with refusal, failure
and neglect.
 The demand for performance is not a matter of form but a matter of substance.
o This means that the demand to act would not be issued if it is clear that the authority
would not comply with it and would make the order an idle formality
 The order of mandamus is not meant to control the exercise discretion
o Where a duty is imposed but the mode of performance is subject to discretion,
mandamus cannot compel the authority to carry out the duty in question in a
particular way or in a specific manner
 Mandamus operates in persona not in rem
o This means that it commands no more than the party against whom the application is
made and commands the performance of only the duty the party is bound to perform

GROUNDS FOR JUDICIAL REVIEW

 By looking at the grounds of judicial review, we will be studying the circumstances in which
an aggrieved person may petition the High Court for Judicial Review.
29 | P a g e Abishua

 Courts of law will review actions of admin bodies in light of one or more of the following
circumstances:-
1. When a body acts Ultra Vires
2. Legitimate Expectation
3. When there is an Abuse of Power
4. When there is an Error Of Law
5. When there is Unreasonableness or Irrationality
6. Relevant & Irrelevant Considerations
7. Bad Faith
8. Proportionality
9. Fairness
10. Breach of Principles of Natural Justice
 In actual practice any one of the grounds will entitle an aggrieved party to apply for judicial
review and circumstances occasioning judicial review will involve one or more of those
grounds.
 We don’t have to have all the 12 circumstances to apply for judicial review any one of the
grounds will suffice
 The list is not exhaustive and further developments on a case by case basis may add more
grounds.

Ultra Vires
Introduction
 Ultra Vires means to go beyond the scope of power, jurisdiction or authority granted or
permitted by law.11 In administrative law an authority is said to be acting ultra vires in two
instances.
o Firstly, in substantive ultra vires where an authority has done or decided to do an act
it lacks legal capacity or lawful jurisdiction to do. In such an incident the authority
has acted outside or in excess or their lawful jurisdiction.
o Secondly, in procedural ultra vires where an authority is doing something it has
legitimate power to do, but fails to meet some requirements attached to the lawful

11
The Legal Gazette, Volume 3 (King and Baird, 1871) 119.
30 | P a g e Abishua

exercise of the power. This is in the sense where an administrative body does not
follow the strict procedures in that act that it has legitimate power.12
 Simply put, if ultra vires is the basis in which courts will interfere or intervene on matters of
public administration then the point is that court will intervene on matters of public admin if
the admin bodies have acted beyond the powers that have been conferred on them.
 The exercise of powers by administrative bodies often affects the rights of citizens and for
this reason it is necessary that these powers be exercised only with accordance with the
statute granting the power so that people do not suffer.
o Limits are placed by statutes to ensure that powers conferred to admin bodies do not
end up causing suffering to citizens.
 The term ultra vires covers a wide range of actions undertaken in excess of the law or in
excess of the powers granted, including:-
o Where an authority does an act which it has no authority to do.
o Where an administrative body in the process of exercising the powers it abuses those
powers, which amounts to acting ultra vires. There are also cases
o Where bodies act ultra vires because in the cause of exercising those things that are
authorised, they have failed to follow prescribed procedure.

Substantive Ultra Vires

 The law requires that authorities act within the confines of their legal capacity and lawful
jurisdiction.13 As a result, actions taken by an authority in excess of its power or jurisdiction
are said to be ultra vires and particularly substantive ultra vires.14
o As a result they will be null and void and quashed by the courts.
 Substantive ultra vires is acting in excess of powers with regard to matters of substance.
o This includes acting beyond what is authorised.
 What is authorised is a matter of substance.
 The service that is authorised is a matter of substance.

12
Publiclawforeveryonecom, '' (Publiclawforeveryonecom, ) http://publiclawforeveryone.com/tag/ultra-vires-
doctrine/ accessed 15 October 2015
13
Lawteachernet, '' (Lawteachernet, ) http://www.lawteacher.net/free-law-essays/administrative-law/doctrine-of-
substantive-ultra-vires-constitutional-law-essay.php accessed 15 October 2015.
14
Blogspotcoke, '' (Blogspotcoke, ) http://shaimao.blogspot.co.ke/2013/08/judicial-review-in-respect-to-kenya.html
accessed 15 October 2015.
31 | P a g e Abishua

 Substantive ultra vires includes the following cases:

o Exercising power in excess of statutory limits;
o Acting in excess of jurisdiction;
o Breach of the principles of natural justice
 E.g. failure to give notice of hearing to a concerned party would amount to
breach of principles of natural justice and that falls under substantive ultra
vires;
 Interpretation of the law or instrument granting the power in question is what will determine
whether the authority was acting within the scope of its power or not. This interpretation is
the work of the courts and in doing this the court must examine the entirety of the relevant
law or instrument and proceed to determine the precise area over which the powers granted
are exercisable by the authority.15
 The English case of AG v Fulham Corporation illustrates substantive ultra vires.
o In this case, Fulham Corporation had statutory authority to provide certain services
for free and, consequently, while purporting to act under their power they begun a
new scheme of service and charged a fee. The court held that the Corporation was
acting ultra vires.
 In addition to this, subsidiary legislation may also be held to be ultra vires if it is repugnant
to or inconsistent with the parent legislation.16 This is illustrates by Powell v May where a
county council made a bylaw forbidding an act which was permitted by 2 other Acts. Here it
was held that they bylaw was invalid and ultra vires. Similarly, in Koinange Mbiu v R when
a Governor was vested with powers by statute to make rules and regulations regarding the
growing of coffee in particular areas and he subsequently went on to make rules restricting
Africans from growing the coffee in particular areas. Due to this, Mbui Koinange was
charged for violating this regulation and on appeal it was held that the rule was ultra vires
and null and void the Governor’s regulation went beyond the purpose it was meant for under
the parent statute. The Koinange Mbiu v R case is also important because in this decision, the
court emphasized that rules and bylaws made under statutory powers must not be

15
Lawmentorcouk, '' (Lawmentorcouk,) <http://www.lawmentor.co.uk/resources/essays/delegated-legislation-
controlled-parliament-itself-and-judges-explain-judicial-controls-delegated-legislation/> accessed 15 October 2015.
16
Kaluma. P. O. , Judicial review: law procedure and practice (LawAfrica Pub., 2009) 136.
32 | P a g e Abishua

unreasonable, they must not be in excess of statutory power and they must not be repugnant
to the statute or to general principles of law.
 Similarly, in regard to judicial and quasi-judicial power, a court acts ultra vires when it
decides a case outside its jurisdiction and any resultant decision is ultra vires and will be
quashed. However, if these courts or tribunals decide a matter erroneously or by coming to a
wrong conclusion, they do not lose their jurisdiction just because of their error. Furthermore,
when a statute or bylaw contains a provision that is ultra vires it is possible for the particular
provision to be struck out as null and void
 In conclusion, despite all of the above, the doctrine of substantive ultra vires ought to be
interpreted and applied reasonably so that if an act may be said to be incidental to or a
consequence of that which it has been authorized to do, then it should not be held to be ultra
vires unless expressly prohibited.

Procedural Ultra Vires

 In addition to substantive ultra vires, where admin bodies may go beyond their powers on
matters of substance, there are also cases of procedural ultra vires. These are cases where
admin bodies fail to follow prescribed procedure. They also include cases where an error
occurs in following procedure.
 “Procedure is the hand maiden of substance” this is one of the truths or maxims of law.17
o Substantive exercise of power requires strict compliance with the prescribed or
implied procedures.18
 If a body has done something that amounts to procedural ultra vires, the court will be
prepared to apply the doctrine of ultra vires to invalidate, or make it null and void.
 When a statute authorizes a body to undertake a certain task, it is very likely that it will
stipulate the procedure to be followed in executing the task.19
o Thus, if the prescribed procedure is not followed, then the execution of the task
will be null and void.20

17
Franklin D. Strier, Reconstructing Justice: An Agenda for Trial Reform (Greenwood Publishing Group, 1994)
273.
18
Peter Opondo Kaluma, Judicial review: law procedure and practice (LawAfrica Pub., 2009) 136.
19
Ibid.
20
Ibid.
33 | P a g e Abishua

 There are matters of procedure that are not in the statutes but they are applicable under
common law and this is where we find the procedural requirements that fall under the
principles of natural justice.
 Additionally, even when no procedure is explicitly prescribed, the rules of natural justice,
the demands of due process, good faith and fairness and the peremptory need to comply with
the principles of good administration will ordinarily be implied and applied in decision
making.21
 In considering the effect of procedural irregularities, courts usually draw a distinction
between mandatory procedural requirements and directory procedural requirements.22
Mandatory Procedural Requirements
 Mandatory procedural requirements must be strictly adhered to by the authority in question
and failure to comply with this requirement renders the resultant act or decision invalid and
amenable to being quashed by courts.23 In line with this, the case of Wing v Epson illustrates
this point where a statute provided that an order requiring a road to be repaired be signed by
two judges, but the order was signed by one judge instead of two judges. The court held that
this requirement was mandatory and that, since it had been dispensed with, the resultant order
was invalid.
 Similarly, in Maina V Nairobi Liquor Licensing Court, where the Liquor Licensing Act
(Chapter 121) required the chairman of the Liquor Licensing Court to give a 30 days’ notice
to a licensee accused of misconduct summoning him to attend a meeting at which his conduct
was to be looked into; here, on the day of the meeting, the withdrawal of the appellant’s
liquor license was ordered. The appellant appealed on the primary ground that he had been
denied 30 days’ notice of the meeting which he was entitled to under the Act and moved the
court to find that the fortnight notice was unlawful. The court emphasize the mandatory
nature of this requirement and ruled that the notice was unlawful.
Directory Procedural Requirements
 Merely serves as a guide, the non-observance of which does not render the resultant decision
invalid. In the case of Ronald Muge Cherogony v Chief of General Staff of the Armed Forces

21
Ibid.
22
Ibid.
23
Patrick L. O. Lumumba, Peter Opondo Kaluma, Judicial review of administrative actions in Kenya (Jomo
Kenyatta Foundation, 2007) 100.
34 | P a g e Abishua

of Kenya & Others (1999) the applicant who was a military officer applied to the High Court
to review a decision by the respondents to subject him to the jurisdiction of the Court martial
on the grounds inter alia that the respondents had made the decision against the provisions of
the Armed Forces Standing Orders which required that certain steps be undertaken before a
decision to a court martial the applicant could be made and that the decision was therefore
premature.
 The high court found that the procedure specified for bringing the applicant before the court
martial had not been followed and that this procedural breach was fatal. It is at times difficult
to decide whether a procedural requirement is mandatory or merely directory. More so when
this is not decipherable from the literal wording of the statute in question. It was held in the
Irungu Kangata case that where an act affects the rights of a person and that effect is penal in
nature, statutory conditions and procedure should be scrupulously adhered to.
 As an administrative law norm, ultra vires is rationalized by the argument that where
Parliament vests power in an authority, the authority can only exercise the powers confided
in it: and no more.24 All actions by an authority that go beyond the legislative intent
undermine the supremacy of Parliament, are ultra vires and null and void ab initio.25

Legitimate Expectation
 Legitimate expectation has developed as a control mechanism against maladministration and
takes shape as an aspect of the fairness principle.
 Legitimate expectation is a norm of judicial control and is derived from the need to secure
certainty and predictability in executive actions.
o As such, the principle seeks to enforce promises or representations given by or on
behalf of an authority to an individual to the end that lawful bargains are not let down
 A claim for legitimate expectation may arise from:-
o An express promise given by a public authority
o From the existence of a regular practice or policy approach which the claimant can
reasonably expect to continue
 Even where there is no express promise or practice, legitimate expectation might arise
where:-

24
M. J. C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 1998) 66.
25
Peter Opondo Kaluma, Judicial review: law procedure and practice (LawAfrica Pub., 2009) 136.
35 | P a g e Abishua

o When applicant has been given some benefit in the past, which is sought to be
withdrawn
o General policy statements
o Individual undertakings
 A claim for legitimate expectation arises where there is an express or implied promise ( by
existence of regular policies or practice that can reasonably be relied upon and expected to
continue) by a public authority that is broken.
 Legitimate expectation functions to :-
 Secure certainty and predictability in executive actions.it seeks to enforce a promise
made by an administrative body to an individual so lawful bargains are not thwarted.
 It ensures that the power given to administrative bodies to make and alter policy is
not abused so it unfairly frustrates an individual’s legitimate/ reasonable expectation.
 To ensure stated or established policy is not misused by administrative agencies.
 The evolvement of the doctrine of Legitimate Expectation from Common law can been
3
traced to an obiter dictum of Lord Denning M. R in Sehmidt v. Secretary of Home Affairs .
Lord Denning observed in Sehmidt:
 "The speeches in Ridge v Baldwin show that an administrative body may, in a proper
case, be bound to give a person who is affected by their decision an opportunity of
making representations. It all depends on whether he has some right or interest or I
would add, some legitimate expectation, of which it would not be fair to deprive him
without hearing what he has to say ...."
 R v North and East Devon Health Authority ex parte Coughlan26
 Ms Coughlan was severely disabled was a resident of the Mardon nursing home.
 It was promised that it would be her home for life when she moved there.
 However due to changes in community law that stated that nursing care provisions
had been transferred to the social service department, the health authority believed
they had no jurisdiction/obligation to Deal with long term nursing care thus broke the
promise.
 They failed to get her alternative housing.

26
[2001]QB 213
36 | P a g e Abishua

 Held: in order for them to break the promise lawfully there needed to be an overriding
public interest and from the facts of the case, their actions were lacking thus it was
unlawful to break it.
 R v Judicial Commission of Inquiry into the Goldenberg Affair and others ex parte George
Saitoti27
 President appointed a judicial commission of enquiry under the provisions of the
Commissions of Inquiry Act.
 They were to investigate allegations of irregular payments of export compensation by
the ministry of finance to Goldenberg international and payments made by the Central
Bank of Kenya to the Exchange Bank.
 The commission listed 14 people it found criminally responsible for the acts and
omissions leading to the fraud, one being George Saitoti.
 He filed for a certiorari to;
 Remove into the High Court the report of the commission
 Quash the findings, remarks and decisions related to him
 An order of prohibition to stop the attorney general from taking action against
him.
 Application was based on;
 Commission had committed errors of fact and law
 Had violated the doctrine of proportionality
 His legitimate expectations had acted in bad faith thus would be unfair to be
implemented as they related to him.
 The commission had stated it would act as a judicial commission of inquiry
thus would function under principles governing judicial proceedings and
decision making.
 This leads to a legitimate expectation arising for them to act in such a manner.
 He claimed they failed to do so by acting on errors of fact, acting in a discriminatory
manner, used their discretion unlawfully, ignored evidence, thus violating the
legitimate expectation.

27
[2006] eKLR, http://www.kenyalaw.org
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 Held: if the commission stated they would act in this manner they must expected to
represent this.

PRINCIPLES IN DETERMINING LEGITIMACY OR

REASONABLENESS OF EXPECTATIONS
 Nature of the representations.
o Reasonable expectations only arise where the representations in question are clear,
unambiguous and obvious.
 There are no strict rules.
o May arise from an express promise, words, documents or conduct which establishes
existence of regular practice
 Specificity and explicitly
o The specific and explicit the source of representation, the easier it is to establish
the representation in question and to determine its legitimacy or reasonableness.
 Foreseeability
o An expectation will not be regarded as reasonable or legitimate if the applicant
could have for seen that the subject matter of the representation was likely to alter,
or that it would not be respected by the relevant authority.
 Relevant Authority
o Where representation is required to be made in a particular form or by a particular
authority, it has to be made.
o A claim for expectation arising from representation other than in the prescribed
form will fail.
 Detrimental Reliance
o Provides a strong foundation for preventing an authority from going back on a
representation.
o Detrimental reliance is not required when it comes to discrimination. Consistency and
equality of treatment should be protected whether or not an individual has suffered
detriment.
 7. Illegality
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o An expectation will not be easily be regarded as reasonable or legitimate where it

would confer improper and bizarre benefits which offend against considerations of
fairness and justice.
 8. Disclosure
o An expectation will not be regarded as reasonable or legitimate if the beneficiary has
engaged in deliberate acts of concealment, non-disclosure and distortion of relevant
matters.
 9. Proportionality
o Interests of the claimant must be weighed to that of the public and the common good.
 The High Court of Kenya has summarized the justification underlying the application of the
principle of legitimate expectation to executive decision in Keroche Industries Ltd v Kenya
Revenue Authority and others that:
 Legitimate expectation is based on a higher public interest beneficial to all which is the value
of the need of holding authorities to promises and practices they have made and acted on and
by doing so upholding responsible public administration.
 This in turn enables people affected to plan their lives with a sense of certainty, trust,
reasonableness and reasonable expectation.
 Legitimate expectation arises where a member of public as a result of the promise expects
that he will be treated in pre way and the public body wishes to treat him/ her in a different
way. Public authorities must be held to their practices and promises by the courts and the
only exception is where a public authority has a sufficient overriding interes to justify a
departure from what has been previously promised.
 In R v Kenyatta University and others ex parte Elena Doudoladova Korir 28 the High
Court quashed a decision by the respondent university denying the applicant the opportunity
to graduate stating that the applicant reasonably expected to be awarded the degree of study
upon successful completion under the university Statutes and post graduate study rules. The
Court emphasized that it was 'fair' the appellant be rewarded the degree on the circumstance
of the case.
 The test for legitimate expectation is objective.

28
Misc. Civil Application No. 1285 of 2007
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 It must be reasonable for the applicant to have relied upon the expectation raised by the
authority.
 Subjective belief on the part of either the applicant or the authority will not suffice.

Abuse of Power
Abuse of power includes cases where the power and authority given public bodies have
(a) Where power has been put to a wrong or improper use;
(b) Where power has been used so as to injure or to damage;
(c) Where power has been misused;
(d) Where power has been used corruptly.
If the court finds that an administrative body has abused its power or his power, any act done or
decision made will be invalidated.
 When a statute applies words which ex facie appears to confer absolute or unfettered
discretion on an administration authority, the discretion can never be regarded beyond the
pale of judicial fetters.
 The exercise of power is subject to limitations the most fundamental of which is that power
must be abused.
 Where power is conferred upon a particular public body by parliament or other lawful
authority and the power is exercised properly, it is beyond the power of any court to interfere.
 Parliament or authority granting power cannot be supposed to have intended that powers
granted by it be open to any kind of abuse.
 It is from this presumption that courts derive their warrant to impose legal bounds on even
the most extensive of discretion.
 In the case of Mayor Westminster Corporation v London and North West Railway Co, lord
Halsbury stated that where the legislature has confided power in a particular body, with
discretion.
 Abuse of power encompasses unreasonable exercise of power, taking into account irrelevant
considerations or ignoring relevant factors while exercising power or applying the power in
bad faith, or any such like malversions.
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Failure to exercise power

 An authority fails to exercise power either by delegating it to another body or fettering itself
in its free exercise.
Unauthorized delegation
 The exercise of power to be lawful requires that it be by exercised by authority upon which it
is conferred, and by no one else.
 This principle is strictly applied, even where it causes administrative inconveniences, except
in cases where it is expressly permitted or may be reasonably be inferred that the power was
intended to be capable of delegation.
o In Ellis v Dubowski, it was held that the committee having itself only delegated
powers had no power to delegate. Therefore a decision made by it is ineffective and
non-compliance.
Fettering Discretion
The process by which power vested in an authority is exercised by another authority is known as
fettering of discretion.
 The effect of fettering discretion is that the power conferred by parliament is exercised, at
least in part and in substance by the wrong authority. such decisions will be rendered ultra
vires, null and void.
 An authority abdicates its functions by leaving it to be exercised by the subordinates without
acting itself or when the authority relying on its subordinate acts mechanically on their
recommendations without exercising its mind.
 Fettered discretion arises when the authority does not consider the matter itself but exercises
its discretion under the dictation of another authority, whether superior in ranks or otherwise.
 In Fernandes v Kericho Liquor Licensing Court the appellant’s application for the renewal of
general retail liquor licence was refused by the Kericho liquor licensing court on the grounds
that preference was to be given to Kenyan citizens.
 the appeal was brought on the principle ground that the licensing court has the power to
refuse the renewal only if the applicant suffered from disqualifications set out in the liquor
licensing act, which did not include lack of citizenship.
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 In private law the principle has been extended to contracts and to the concept of estoppel. the
general rule is that an authority may not by contract fetter itself so as to disable itself from
exercising its lawful power.
 The doctrine of estoppels is used to prevent not only enlarging the power of public
authorities but also from curtailing the proper exercise of their discretion.
 The rule against fettering discretion out not to be expanded so wide as to prevent a
government department from consulting another or to hinder government agencies from
acting in consonance with government policy.

Abuse of Jurisdiction
 All administrative powers must be exercised fairly and in good faith for the purpose it is
given, therefore if powers are abused it is a ground of judicial review
Abuse of power may arise in the following situations
1. Malfeasance in office
 This is a tort doctrine imported into administration law. The Supreme Court in
Lucknow Development Authority v M.K. Gupta, it was held that where the
minister allotted petrol outlets from his discretionary quota in arbitrary, mala fide
and unjust manner, it is misfeasance in office subject to judicial review of the
Courts.
2. Errors apparent on the face of the record which may be a result of misinterpretation or
misapplication of law
3. Consideration of extraneous material
4. Non-consideration of relevant material.
5. Colorable exercise of power or misdirection in law. Administrative power cannot be
used for the purpose it was not given. Therefore, achieving an authorized purpose will
be a colorable exercise of power subject to judicial review.
6. Mala fide exercise of power or bad faith or malice.
 No public authority is expected to act in bad faith or from corrupt motives. If any authority
has acted out of malice it will be subject to the review jurisdiction of the court.
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Abuse of Discretion
 The rule of law does not demand that we eliminate judicial discretion but to control its
exercise.
 Discretion is an element of power as opposed to duty, so as that abuse of discretion could be
made to include most of administration law.
 In case of mixed considerations courts try to find out the dominant purpose which impelled
administrative action.
 The court use the principle of ultra-vires to ensure that statutory powers are exercised
reasonably, in good faith and on the correct grounds.
 The court usually assumes that parliament did not intend to authorize unreasonable action,
which is therefore ultra-vires and void.
 If the action in question is found to be intra vires the court has no power to interfere.

Improper purpose
 A statute may confer discretionary powers upon an administrative authority in order to arrive
at a particular decision.
 However, this discretion is not unlimited and is restricted to the purpose for which the
statute is enacted and the ultimate aim it aims to achieve. The courts can construe a purpose
from the provisions of the statute where no aim is mentioned expressly
 In the modern period of time, there has been a huge growth in the activities that fall under
administrative action..
 Some authorities are granted a discretion in their functioning which increased the scope of
functioning.
 However, courts can limit this seemingly unfettered power by checking the original intent of
the statute in vesting the discretionary power. The motive behind an administrative action
should be in line with the statutory objective.
 This was also seen in R.L. Arora v. State of Uttar Pradesh in this case, the land acquisition
act, 1894 allowed to the state government to give consent to acquisition of property for
industrial purpose if it proved useful to the public. The government here assented to
acquisition of property by textile factory.
43 | P a g e Abishua

 This was challenged on the grounds that the government could not interpret the words of the
statute and exercise discretion on the same as well. The court held that the purpose of the
statute was to allow acquisition when construction of work after acquisition would lead to
benefit of people. In this case, the benefit would arise only after the industry is functioning
and not during construction. Hence, the order of the government was struck down on the
grounds that it violated the mandate of the legislation.

No material
 All discretionary action that is taken must be based on sound material and facts. there should
be application of mind even when discretion is vested in the authorities. this was held in the
Rohtas matter and the Venkatraman case where the orders of the authorities were vitiated
owing to be based on lack of material.
 This is so as arriving at a decision on negligible grounds is an abuse of the discretion vested.
it stinks of arbitrariness and misuse of the authority given to an administrative body. This
was seen in the case of Raala Corp. v. Director of Enforcement which dealt with the
discretion vested in the directorate of enforcement to refer cases to Supreme Court where he
felt the punishment to be imposed was beyond his powers. This discretion was to be
exercised on the basis of sufficient material. However, in this case, the reference was made
even without holding any hearing and without reading any information. Hence, the Supreme
Court quashed the order.

Intentions imputed to parliament

 Whether the discretion is exercised prudently or imprudently, the authority’s word is to be
law and remedy is to be political only.
 Parliament cannot be supposed to have intended that the power should be open to serious
abuse. It must have assumed that the designated authority would act properly and
responsibly, with a view to doing what is best in the public interest and most consistent with
the policy of the statute.

Confusing terminology
 The terminologies used by the courts is often confusing and it may also be used
inconsistently.
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 A court will often say that a discretionary power has to be exercised reasonably and by this it
intends to refer compendiously to all the ways which that power might be abused.
 The decision maker is bound to decide according to the rule of reason and the law. The
decision maker should take into account all relevant considerations and exclude from
considerations all irrelevant considerations.
 Care and sensitivity to context is needed to avoid being confused by this terminologies.

The principle of proportionality

 Judicial controls have been formulated in order to keep a check on the exercise of
administrative discretion, this ensures that unfettered power is not given to authorities to
allow arbitrary decision-making.
 One of the major tools formulated has been the Wednesbury rule, the rule of proportionality
is another such tool which ensures that there is a nexus between the aim to be attained and
the means undertaken in order to do so, an application of this rule is in departmental hearings
where the punishment meted out to employees is grossly out of proportion considering the
wrong committed.
 In England, the proportionality tests have evolved to the control of strict scrutiny in order to
protect the rights and freedoms of citizens from infringement.
 This tool was applied in the case of Ranjit Thakur v. Union of India where an army official
was Court-martialled in response to a minor indiscretion committed by him.
 He challenged the order in the supreme court who quashed it stating that the rule of
proportionality demanded that the punishment given has a nexus with the act committed and
is proportional to the same. The court justified its interference on the ground that the decision
in question was grossly disproportionate.
 In case the order prejudiced fundamental freedoms or was discriminatory, the rule of
proportionality needed to be employed to see if the infringement was necessary in light of the
offence committed. In such an event, the court had the right of primary review to replace the
holding of the administrative authority with its own. This would be an exceptional case

Error Of Law
 An error of law is a condition or an act of ignorance, negligence or imprudent deviation or
departure from the law.
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 Error of law is one of the grounds for judicial review and a common ground for a statutory
appeal.
 It is a mistake in a court proceeding concerning a Matter of Law or fact, which might provide
a ground for a review of the judgment rendered in the proceeding.
 This can result from a number of things
1. Failure to ascertain what the law is on a particular matter or what the law says about a
particular matter;
2. It may also occur as a result of misconstruction of the law;
3. Misinterpretation of the law;
4. Blatant disregard of the law;
5. Misunderstanding of the law; or
6. Misdirection on the law (this involves a situation where an admin body seeks
direction on the law)
 i.e. if the head of civil service seeks direction from the AG or from the Chief
Justice or Minister for Justice and Constitutional Affairs and they have given
directions that are not correct we may say that this is a misdirection.
 Mistaken or erroneous application of law and the decision made in error will void or reverse
a judgment in the matter and all the acts done in error of law are invalidated upon judicial
review
 Errors or mistakes in facts, upon which a judge or jury relied in rendering a judgment or
verdict, may or may not warrant reversal, depending upon other factors involved in the error.
 (1952) 1 KB 338
 In R v. NCAT ex parte Shaw a former employee of an administrative body claimed
compensation on termination of his employment.
o Under the applicable regulations the tribunal was required to assess compensation
payable by aggregating two periods of employment
 i.e. the law was saying in computing compensation would have to
aggregate two periods of employment.
o In its decision the tribunal stated that of the two periods of employment, they
would take into account only the second period.
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o Upon application for judicial review this decision was quashed and issued an
order of certiorari because of the error of law that had been committed and found
that this amounted to an error on the face of the record.
 Error of law was also considered in the case of Kenneth Matiba v. A.G in which the court
ruled that the act of the rules committee was null and void to the extent that it was not in
conformity with the enabling statute.
 However, appellate decisions make a distinction not so much between fact and law, but
rather, between harmless error and reversible error in deciding whether to let stand or vitiate
a judgment or verdict.
o In litigation, a harmless error means that, despite its occurrence, the ultimate
outcome of the case is not affected or changed, and the mistake is not prejudicial
to the rights of the party who claimed that the error occurred.
 Most harmless errors are errors of fact, such as errors in dates, times, or inconsequential
details to a factual scenario.
 An error that is deemed harmful is one that biased the ultimate decision of a jury or judge,
constitutes reversible error, i.e., error that warrants reversal of a judgment (or modification,
or retrial).
 A reversible error usually refers to the mistaken application of a law by a court, as where, for
example, a court mistakenly assumes jurisdiction over a matter that another court has
exclusive jurisdiction over. A court may erroneously apply laws and rules to admit (or deny
the admission of) certain crucial evidence in a case, which may prove pivotal or dispositive
to the outcome of the trial and warrant reversal of the judgment.
 Occasionally, a court may charge the jury with an instruction that applies the wrong law, or
with an improper interpretation of the correct law. If the party claiming error can prove that
the error was prejudicial to the outcome of the case or to the party's rights, the error will most
likely be deemed reversible.
 Errors to the law occurs as a result of:-
o Misconstruction of the law, misinterpretation of law, blatant disregard of the law,
misunderstanding of the law, misdirection on the law.
 All errors in the course of making a decision or rule are to be regarded as errors of law. All
errors may be regarded as errors of law, which may make decisions void and without legal
47 | P a g e Abishua

effect. This allows courts to avoid adverse consequences, in the process making the law both
more complex and more sensible.
 In summary, an error of the law is an error which may be ascertain by an examination of
record proceedings without recourse to any evidence.
 In the case of Khawaja v Home Secretary [1984] 1 AC, in which the court held that it had to
be satisfied that the person concerned was an “illegal entrant”.

Error of Fact
 Facts are an integral to the making of a decision. The validity of a decision depends on the
proper appreciation and interpretation of facts.
 An error of fact occurs where there has been an act or a condition of ignorance, negligence or
imprudent deviation from facts. This may occur from a number of facts
1. Where facts have not been properly appreciated;
2. Where facts have not been properly interpreted;
3. Where there is an incorrect finding of facts;
4. Where irrational conclusions are made from facts;
5. Where a decision is made without giving due regard to the factual circumstances of
the case at hand.
 The effect of error of facts is that it renders a decision null and void. Where the existence or
non-existence of a fact is not certain, it will be left to the judgment and discretion of the
public body concerned.

Unreasonableness
 Where an action is so unreasonable that it, might almost or can only, be described as being
done in bad faith, it is quashed for administrative disability in exercising their discretion 29. It
should be distinguished from Irrationality, which means ‘devoid of reasons’ while
unreasonable means ‘devoid of satisfactory reasons’.The true question must always be
whether the statutory power has been abused. Landmark case for Identifying
unreasonableness is; Associated Provincial Picture Houses Ltd. v Wednesbury Corporation.

29
Kaluma, P. (n.d.). Grounds for judicial review. In Judicial review;law procedure and practice (2nd ed., p. 153).
Kampala: Law africa.
48 | P a g e Abishua

 In 1947 Associated Provincial Picture Houses was granted a licence by

the Wednesbury Corporation in Staffordshire to operate a cinema on condition that no
children under 15 were admitted on Sundays. They sought a declaration that such a condition
was unacceptable and outside the power of the Corporation to impose.
 Lord Greene’s defined Unreasonableness as; a person or administrative body entrusted with
discretion must call their attention to the matters which they are bound to consider. They
must exclude from their consideration matters which are irrelevant to what they are to
consider30.It may be something so absurd that no administrative sensible person or could ever
dream that it lay within the powers of the authority. (Short v Poole Corporation 1926)
 The court held that it could not intervene to overturn the decision of the defendant simply
because they disagreed with it. To have the right to intervene, the court would have to
conclude that:
o In making the decision, the defendant took into account factors that ought not to have
been taken into account,
o The defendant failed to take into account factors that ought to have been taken into
account,
o The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
 The court held that the decision did not fall into any of these categories and the claim failed.
 In Roberts v Hopwood [1925] Lord Wrenbury said:
o A person in whom is vested a discretion must exercise his discretion upon reasonable
grounds.
o Discretion does not empower a man to do what he likes merely because he is minded
to do so, he must in the exercise of his discretion do, not what he likes, but what he
ought.
 In other words, he must, by use of his reason, ascertain and follow the course
which right reason directs.
 Arbitrary and capricious

30
abid
49 | P a g e Abishua

o Are legal rulings where an appellate court determines that a previous ruling is invalid
because it was made on unreasonable grounds or without any proper consideration of
circumstances?
 Frivolous or vexatious
o When used to describe an action such as a complaint or a legal proceeding, is a term
used to deny (or attempt to deny) it’s being heard, or to dismiss or strike out any
ensuing judicial or non-judicial processes.
o The above is illustrated in;
 Council For Civil Service Union V Minister For Civil Service.(Gchq)
 Kruse V Johnson
 One of the things the court considers, in determining unreasonableness is whether a public
body has considered or taken into account any matter that it ought not to take into account.
Another thing that the court will consider is whether a public body has disregarded any
matter that it ought to take into account.
 R V. Ealing London Borough Council Ex parte Times Newspapers Ltd (1986) 85 L.G.R.
316 (Local Government Reports)
o In this case the council was held to be unreasonable in refusing to provide certain
Newspapers to their libraries because the council did not agree with the Newspapers
Proprietors on political grounds. The court held that the council was unreasonable in
refusing to provide their libraries with certain Newspapers.
 An example of a matter that amounts to unreasonableness.
 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 K.B 223
o The Sunday Entertainment Act of 1932 empowered local authorities to grant licences
for cinematograph performances and to allow and licence a place to be opened and
used for cinematograph performances subject to such conditions as the authority
thinks fit to impose. The local authority granted the Plaintiffs licences for Sunday
performance subject to one condition that no children under 15 yrs of age should be
permitted to Sunday performance with or without an adult.
o A local authority empowered to attach such conditions as it thought fit to the grant of
a permit for Sunday cinema opening, imposed a condition that no child under fifteen
50 | P a g e Abishua

should be admitted to a Sunday performance at all. The condition was attacked as

being void for unreasonableness. The Court of Appeal held that it was valid.
o The court held in an action for declaration that this condition was reasonable, the
court held that the local authority had not acted unreasonably. In imposing this
condition, the licensing authority had not acted ultra vires. The court then went on to
state “what a court would be looking at when faced with unreasonableness is
whether:-
 Matters that need to be taken into account have been taken into account;
 Omitted matters that ought to be considered have been considered.

Irrationality
 Irrationality is derived from the word irrational. This means that if a decision making body
or an administrative body acts irrationally, whatever that body does irrationally or whatever
decision it makes irrationally can be invalidated upon judicial review.
 Irrationally means conduct beyond the range of responses reasonably open to an
administrative body. In determining whether a particular act or decision is irrational, a
reviewing court will consider whether a public body has done something which a reasonable
body with the same function and confronted with the same circumstances could not do. This
is an objective test.
o Associated Provincial Picture Houses V. Wednesbury Corporation [1948] 1 KB 223
 R V. Ealing London Borough Council ex parte Times Newspaper Ltd (1986) 85 LGR
316
o In the Earling case, there was a clear case of abuse of power prompted by an
irrelevant consideration where some local authorities refused to provide certain
newspapers in their public libraries. Their reason for the ban was that they were
politically hostile to the newspapers’ proprietors, who had dismissed many of their
workers when they went on strike. The ulterior political object of the local authorities
was irrelevant to their statutory duty to provide ‘a comprehensive and efficient library
service.
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Irrelevant Considerations
 When exercising administrative power, relevant factors must be considered and irrelevant
factors must not be taken into consideration. There are three types of ‘considerations’:
o Relevant considerations/mandatory considerations
 These are the matters that the decision-maker is bound to take into account.
The mandatory considerations are derived from; the terms of the specific
statutory power, Implied from the subject matter, Scope or purpose of the
power31.
o Irrelevant considerations
 These are the matters which are not only ‘non-mandatory’ but which are in
fact prohibited from being considered, having regarded to; the subject matter,
scope or purpose of the power.32
o Permissible considerations
 Are an often wide range of matters which lie between mandatory and
prohibited considerations?33 They are factors which the decision-maker may
weigh or disregard without committing an error of law.
 Irrelevancy occurs in two situations that the courts will consider as amounting to
irrelevancy:-
 Where a decision making body considers a matter which it ought not to consider
in arriving at a decision;
 e.g. if on the basis of a gender a licence is denied.
 Where an administrative body disregards something, which it ought to consider in
making a decision.
 Secretary of State for Education and Science V. Tameside Metropolitan Borough
Council (1977) A .C. 1024
o In this case the court stated that in its decision in the process of review it is for a court
of law to establish whether in reaching the unfavourable decision complained of a
31
Cambridgeorg, '' (Cambridgeorg, ) <http://ebooks.cambridge.org/chapter.jsf?bid=CBO9781139168618> accessed
13 October 2015
32
Lindsaytaylorlawyerscomau, ' relevant and irrelevant considerations' (Lindsaytaylorlawyerscomau, no-date)
<http://www.lindsaytaylorlawyers.com.au/in_focus/index.php/2013/07/refresher-relevant-and-irrelevant-
considerations/> accessed 13 October 2015
33
ibid.
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public body has taken into consideration matters which upon the true construction of
the act at issue ought not to have been considered and excluded from consideration
matters that were relevant to what had to be considered.
 Wenesdbury Case
 In statute: Where a statute has spelt out relevant factors then it’s the courts mandate to
ascertain whether or not a consideration not in the act has been applied34, if the statute does
not spell out the specific considerations then the courts look at the purpose of the parent
statute.
 In Chaganlal and others v Kericho Urban District; A by-law provided for the compulsory
acquisition of a citizens land without compensation. Compensation was catered for in the
parent statute the bylaw was hence held to be ultra vires .This is because the enabling statute
was derogated and also because the decision itself was unreasonable.

Bad Faith (Mala Fides)

 If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather
hard to define bad faith but it covers a wide range of circumstances including malice,
corruption, fraud, hatred and similar things. It also includes cases of vindictiveness.
 Also known as mala fides is a term that is normally used in relation to exercise of statutory
authority.35 It is normally connoted with elements of vindictiveness, animosity, spite and
vengeance. However, other grounds are preferred to it.
 All powers exercised vested in any public authority must be exercised in good faith. A
decision that results from an exercise of power in bad faith is unfair and lends itself to be
quashed by certiorari.36
 Burden of proof lies with the person alleging the bad faith because of the presumption that
37
administrative bodies act in the good of the general public. The standard of proof is
normally high and must go beyond mere assertions. There must be something specific, direct,
precise and tangible to sustain a claim of bad faith. For that reason bad faith demands proof
of the highest degree of credibility and cogency.38

34
Lawteachernet, '' (Lawteachernet, ) <http://www.lawteacher.net/oscola-referencing/> accessed 13 October 2015
35
PLO Lumumba, ‘An Outline of Judicial Review in Kenya’ (ISBN:9966703470 2nd Ed. LawAfrica 2006)
36
Peter Kaluma, ‘ Judicial Review: Law Procedure and Practice’ (ISBN:996673841X 2009 LawAfrica Publishers)
37
Ibid.
38
Ibid.
53 | P a g e Abishua

 Therefore proof of bad faith is, in the main circumstantial and takes into account the course
of events, public utterances, of the authority concerned, statements in pleading and affidavits
filed by the authority and the conduct of a party.39
 Bad faith seldom has an independent existence as a ground for judicial control of
administrative actions.40 Wherever it features, it’s characteristically an adjunct of
unreasonableness, extraneous consideration or improper motive.41 This can be illustrated in
what was mentioned by Lord Greene in passing in the Associated Provincial Picture Houses
Ltd. V Wednesbury Corporation42
 Warrington LJ in Short v Poole Corporation, gave the example of the red-haired teacher,
dismissed because she had red hair. This is unreasonable in one sense. In another it is taking
into consideration extraneous matters. It is so unreasonable that it might almost be described
as being done in bad faith; and, in fact, all these things run into one another.43
 Therefore bad faith seems to be present on the other grounds of judicial review. For instance
in the case of Roncarelli v Duplessis44, where a liquor license was denied for political
reasons, and the minister was found to have departed from acting in good faith. Rand J
further stated that the act was malicious and therefore actionable under the law of Quebec.
 In Republic vs. Institute of Certified Public Accountants of Kenya ex parte Vipichandra
Bhatt T/A J V Bhatt & Company Nairobi HCMA No. 285 of 2006, it was held that in the
absence of a rational explanation, one must conclude that the decision challenged can only be
termed irrational within the meaning of the Wednesbury unreasonableness, was in bad faith
and constitutes a serious abuse of statutory power since no statute can ever allow anyone on
whom it confers a power to exercise such power arbitrarily and capriciously or in bad faith

Proportionality
 The Committee of Minister of the Council of Europe set up in 1980 described the
principle of proportionality as follows:-

39
Ibid.
40
Ibid.
41
Ibid.
42
[1948] 1 KB 223 at 229
43
H W R Wade & C F Forsyth, ‘Administrative Law’ (ISBN 978-0-19-921973 (pbk) 10th Ed. OUP Y*) 303
44
(1959) 6 DLR (2d) 689 at 707
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o “An appropriate balance must be maintained between the adverse effects which an
administrative authority’s decision may have on the right, liberties or interest of the
person concerned and the purpose which the authority is seeking to pursue.”
 As was held by Warsame, J (as he then was) in Re: Kisumu Muslim Association Kisumu
HCMISC. Application No. 280 of 2003, where an officer is exercising statutory power he
must direct himself properly in law and procedure and must consider all matters which are
relevant and avoid extraneous matters. The learned Judge further held that the High Court
has powers to keep the administrative excess on check and supervise public bodies through
the control and restrain abuse of powers.
 Therefore where an action is taken to achieve lawful objectives in a situation where it will
restrict a fundamental right, the effect of the right must not be disproportionate to the public
purpose sought to be achieved.45E.g. the freedom of expression or freedom of the press,
which are subject to restrictions that are prescribed by law and are deemed necessary in a
democratic society.
 In the case of R (Daly) v Home Secretary, where a prison policy barred a prisoner in a closed
prison from being present while his cell was being searched, even when letters between him
and his solicitor were examined, the House of Lords held the act as unlawful even under
common law. This infringed on his right of correspondence to a greater extent than was
necessary.46
 As a control mechanism proportionality seeks to strike and maintain a balance between the
adverse effects which a decision or an action by an authority may have on the rights, liberties
or interests of the concerned individual and the purpose which the authority is seeking to
47
pursue. In so doing, a fair balance should be struck between the general public interest in
the action in question and the need to protect the fundamental rights of the applicant.48

45
A W Bradely & K D Dewing, ‘ Constitutional and Administrative Law’ ( ISBN 978-1-4058-7350-5 15th Ed.
Pearson Education Limited 2011)
46
Article 8 ECHR (1) everyone has the right to respect for his private and family life, his home and his
correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or
for the protection of the rights and freedoms of others
47
Peter Kaluma, ‘ Judicial Review: Law Procedure and Practice’ (ISBN:996673841X 2009 LawAfrica Publishers)
48
Ibid.
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 Where greater public demand outweighs the need to safeguard the specific individual
interest, the concerned public authority should not be restrained by judicial review.
The following questions offer the ‘structured test’:
o Whether the legislative objective is sufficiently important to justify the limiting of
a fundamental right
o Whether the measures designed to meet the legislative objective are rationally
connected to it?
o Whether the means used to impair the right or freedom are no more that in is
necessary to accomplish the objective. ( The necessity question)
o Whether a fair balance has been struck between the rights of the individual and
the interests of the community 49

DEFERENCE
 This occurs where courts offer the decision maker a ‘discretionary area of judgement.’ That
is, an area into which the courts will not intrude in the application of the test of
proportionality.
The justifications
The Democratic Principle:
 That is, the decisions made by an elected decision maker or a decision maker accountable to
elected representatives, are said to be entitle based on this principle.
Institutional Competence
 Where the matter raised is one that the courts are institutionally incompetent to decide
Examples of Deference:
 R. (Farrakhan) v Home Secretary50 – where the secretary of state refused the admission of an
American citizen who was the leader of the ‘Nation of Islam’ who wished to meet his
followers in Britain, who had caused some public disorder. His violent anti-Semitic speeches
were considered to cause strained community relations and would not be for the public good.
On appeal the court stated that the Home Secretary must be allowed that margin of discretion
since:

49
H W R Wade & C F Forsyth, ‘Administrative Law’ (ISBN 978-0-19-921973 (pbk) 10th Ed. OUP Y*) 303
50
[2002] 3 WLR 481
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1. It was an immigration case, an area where Strasbourg jurisprudence is favourable and

for the good of the public order
2. It was the Home Secretary’s personal and informed decision
3. The Home Secretary is far better placed to reach an informed decision than the court
4. The H.S. is democratically accountable for this decision, there being no appeal on the
‘public good’ ground.
 The decision was legitimate since the H.S. was within the statutory power. And that they had
further assed the situation in the Middle East in addition to other information that the courts
did not have.

Fairness
 In R (Bibi) vs. Newham London Borough Council 2001 EWCA CIV 607, it was held:
o “Unless there are reasons recognised by law for not giving effect to those legitimate
expectations then effect should be given to them. In circumstances as the present
where the conduct of the Authority has given rise to a legitimate expectation then
fairness requires that, if the Authority decides not to give effect to that expectation,
the Authority articulates its reasons so that their propriety may be tested by the court
if that is what the disappointed person requires.”
 In of itself, it stands as a justification and underpinning of for review. More than any other
element that gives raise to judicial review, it goes hand in hand with legitimate
expectation.51Generally there has been no attempt to clarify as to what amounts to “fair” or
“unfair”.52 Thus the ubiquity of this element.
 The idea of fairness is all encapsulating in that, it overlaps into the various elements that give
raise judicial review. Thus it is no easy task to observe fairness, on its own, since it is implied
in the other elements

Breach of Natural Justice

See discussion on Natural Justice above.0Principle of Natural Justice < Press Control + Click
to follow link)

51
Nicholas Banforth, ‘ Fairness and Legitimate Expectation in Judicial Review’ (1996) 56 The Cambridge Law
Journal 1
52
Ibid.
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Process of Judicial Review

Procedure For Application for Judicial Review
Application for leave is by way of Chamber Summons under Civil Procedure Rules Order LIII.
This application is made ex parte in sub section 3 it requires that notice be given for application
for leave. The notice is to be given to the registrar of the High Court.
Time limitation is crucial. Order 53 provides for time limits within which a person can apply for
leave. The law is very strict where it comes to certiorari, you have to file your application for
leave within 6 months of the date your application e.g. when a liquor licensing was denied. If
you do not file within 6 months the court cannot grant an extension.
Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the
application within a reasonable time. Reasonable time means that you may serve 3 months after
the licence was denied and be denied leave or for 8 months and they grant leave. But with
certiorari it has to be 6 months and it cannot be extended.
Order 53 (4) – Grant of leave to make the application can operate as a stay of proceedings. It
can be a stay of the proceedings that you are complaining about.
The grant of leave will operate as a stay of proceedings where you are seeking to quash whatever
has taken place under certiorari. Stay will only apply in case of certiorari and prohibition and not
Mandamus.
APPLICATION FOR JUDICIAL REVIEW
Under section 3(1) after you have been granted leave, you make your application by way of
Notice of Motion which will include a statement. Within 21 days of the grant of leave, you must
make your application. If personal allegations have been made, you must serve the party that
allegations have been made against.
You must serve the other party, e.g. officials of liquor licensing court etc. within 8 clear days of
hearing;
You file an Affidavit of Service stating some things usually a court process server will swear an
Affidavit stating how they effected Service.
File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court
registry and the affidavit must be in the file on the day of hearing.
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Hearing: This is when your application for Judicial Review is done. The administrative body or
tribunal will enter appearance which is done in a prescribed format. After the court listens to
your allegations, the court makes a ruling and the court may rule in your favour or against.
When asking for certiorari, you must categorically indicate that in your pleadings etc.

REMEDIES:
 There are only three remedies that the courts can grant for judicial review:-
1. Certiorari
2. Prohibition;
3. Mandamus
Whether the courts will grant one of these rules depends on the circumstances.

Introduction
 The procedure and practice of judicial review is governed by the provisions of order 53 of the
civil procedure rules. The two stages of application for JR are:-
o Aggrieved party to apply to the High Court for leave to institute the application
for JR
o Following the grant of leave, the applicant may proceed to institute the
application for JR within the specified time period
 review order issue in the name of the republic
 the aggrieved party is the applicant while the ag is the representative on behalf of the public
body
 S 81 - rules committee
o process for approaching the courts
 S 1A Civil Procedure Act- the overiding obejective is to facilitate just, expeditious...
 S 53 - the 2 stage application

Application for Leave

 Applications for JR require the permission of the High Court before being commenced
 An application for leave is the first step in applying for JR. It is where the party who intends
to bring judicial review proceedings makes an application to a judge for leave to apply for JR
59 | P a g e Abishua

 Leave is the permission or authority of the court

o chamber summons and verifying affidavit and statement
o failure to file the affidavit renders the application defective/incompetent for lack of
evidence
 The application is made through chamber summons and is to be accompanied by a statement
setting out:-
o Name and description of applicant
o Relief sought
o Grounds on which the relief is sought
o Facts and evidence relied upon, supported by affidavits
 All evidential facts should be in the affidavits
 Without affidavits the application is rendered incompetent for lack of
evidence
 In the application, you must put the enabling statutes
 Before, Notice to the Registrar was a requirement
o Magret Ndungu v Grace Muthoni
o R v Isaac Theuri Githae
 whatever the object of the provision we are unable to hold it as mandatory
 Now the law entitles parties to apply straight for leave without giving prior notice to the
Registrar

Test for Leave

 Three principal matters to be considered in determining whether or not to grant leave:-
a. The court has to ascertain whether the application discloses a prima facie case
meriting the filing of an action for JR:-
i. A prima facie case is one with a possibility of success
b. Locus standi to institute court proceedings
c. Time bar considerations
 Prima facie case
o In determining whether there is a prima facie case, the court goes through the
application to establish whether the facts and circumstances on the face of it have
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the potential of violating the applicant's legal rights or reveal a possibility of

abuse of power or breach of natural justice
o In the case of Samuel Muchiri v minister of agriculture the court opined that the
test for leave is whether without in-depth examination, there is an arguable case
that reliefs sought might be granted on the hearing
o The onus is on the applicant to show that they have arguable grounds for
challenging the decision or action complained of and that the case has real issues
for the court's determination without extensive submissions
 Locus standi
o This is the second thing that a person instituting an application of JR has to satisfy
the court of
 The judge must be satisfied that the applicant has sufficient interest in the
matter
o The definition of sufficient interest is not defined by statute. Therefore, courts
have been left to interpret what constitutes sufficient interest depending on the
circumstances of each case
 In determining this, the court has to guard their time by avoiding frivolous
and unfounded complaints
 Time Bared
o The third thing to confirm in an application for leave is that the application is not
time barred
o Section 9 (2) of the Law Reform Act provides that rules may prescribe that
applications for mandamus, prohibition and certiorari should be made within 6
months or such shorter period as might be prescribed.
o Section 9 (3) of the LRA and Order 53, Rule 2 of the CPR provide a tight time
limit in respect of certiorari by providing that an application for an order of
certiorari to remove any judgment, order, decree or other proceeding for being
quashed has to be made within 6 months from the date the cause of action arose or
such shorter period as may be prescribed by any Act.
 The cause of action is taken to arise on the day of the judgment, decree or
proceeding
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o This requirement is limited to formal judgments, orders or decrees and does not
apply to informal decisions which may commence after the 6 months
o the rule that applications for certiorari must be made within 6 months was upheld
in the Gathunguri case
o so far, no rules have been made to limit the time for applying for the orders of
mandamus and prohibition
o The position of the courts on whether applications for the orders of mandamus
and prohibition are to be made within six months is also not clear
 In some cases, courts have held that applications for the orders of
mandamus and prohibition are to be made within the 6 months
 In the case of Raila v Nairobi City Council, an objection was
raised after an application for an order of prohibition was instituted
after a lapse of 14 months
 In other cases, courts have asserted that applications for mandamus
and prohibition can be made at any time so long as the actions or
omissions sought to be restrained
 The supported legal position has been that an application may be brought
at any time provided that the actions sought to be prohibited or compelled
continue
o However, JR orders are discretionary remedies and the court may deny relief for
unreasonable delay in applying for JR
 Leave of the court must be obtained before an application for JR is made. This requirement is
mandatory
 Previously, it was a requirement that proceedings for leave were to be made and heard ex
parte without being separated or inter partes hearing. The position changed with new rules
which now grant the court discretion to direct that the application for leave be heard inter
partes before granting said leave
o This allows the court to clarify the issues in dispute and give a just determination
where clarification is not coming from the proceedings
o Order 53 1 (4) - Application for leave operates as a stay
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o the court may decide that a matter requires an inter partes hearing, especially with
the question on stay -
 Significance of leave
o Filter out frivolous suits
o minimise cost to the applicant and at no cost to the respondent
 Heywood v Hull Prison Board of Visitors
 Dr. Sylverster Nganga v Malindi Municipal
 leave prevents public bodies from vexatious proceedings
o Inland Revenue Commissioners v National Federation od Self Employed and
Small business lit
 protection from abuse of legal process,from busybodies
 *Practice directions are made by the office of the CJ and rules by the committee

Conditional Leave
 A judge in granting leave may impose certain conditions such as is necessary based on the
circumstances of the case
 Here the courts consider the nature of the case, the clarity of the matters in issue, the
noticeable motive underlying the case, the ability of the applicant to raise security, the
general public interest in the matter and the wider interests of justice