ADMINISTRATIVE LAW

NOTES

Lesson Two: Fundamental Principles of Administrative Law

i. Rule of Law

In the Kenyan context, the fundamental principles of administrative law, including the rule of
law, are crucial for ensuring accountability, transparency, and fairness in the exercise of
governmental power. The rule of law requires that government actions are conducted within
the framework of the law, with respect for legal principles and procedural safeguards. This
principle is enshrined in the Constitution of Kenya and has been reinforced through various
statutes and case law. Let's explore how the rule of law is manifested in the Kenyan context
using relevant statutes and case law:

Constitutional Basis:
 The Constitution of Kenya, 2010, is the supreme law of the land and
establishes the framework for governance, including administrative law
principles. Article 10 of the Constitution sets out the national values and
principles of governance, which include the rule of law as a fundamental tenet.
Article 47 of the Constitution guarantees the right to administrative action that
is expeditious, efficient, lawful, reasonable, and procedurally fair.
Legal Certainty and Predictability:
 The rule of law requires that laws and administrative decisions be clear,
certain, and predictable. Administrative bodies must act in accordance
with clear legal rules and procedures, and their decisions should be
based on established legal principles. This ensures that individuals can
understand their rights and obligations and anticipate the
consequences of their actions.
Equality and Non-Discrimination:
 The rule of law requires that all individuals be treated equally before
the law, without discrimination based on race, ethnicity, religion,
gender, or other characteristics. Administrative decisions must be made
impartially and without favoritism or prejudice. The principle of equality
also extends to access to justice, ensuring that all individuals have
equal access to legal remedies and procedures.
Procedural Fairness and Natural Justice:
 Administrative bodies are required to follow fair and transparent
procedures when making decisions that affect the rights or interests of
individuals. This includes providing notice of the issues at stake, giving
affected parties an opportunity to be heard, and providing reasons for
decisions. The principles of natural justice, such as the right to a fair
hearing and the rule against bias, ensure that administrative decisions
are made fairly and without undue influence.
Accountability and Transparency:
  The rule of law requires that administrative bodies be accountable to
the public and operate transparently. Public authorities must act within
their powers and in the public interest, and their decisions must be
subject to scrutiny and review. Transparency in administrative processes
helps to prevent abuse of power and ensures public trust in
government institutions.

Administrative Procedures Act:

 The Administrative Procedures Act, 2015, provides a comprehensive
framework for administrative action and ensures adherence to the rule of law
in administrative processes. The Act outlines the principles of administrative
justice, including fairness, impartiality, transparency, and accountability. It
requires public authorities to act lawfully, reasonably, and in accordance with
relevant procedures when exercising administrative functions.
Judicial Review:
 The rule of law is reinforced through judicial review, which allows individuals
to challenge administrative actions or decisions that are contrary to law,
irrational, unreasonable, or procedurally unfair. The High Court has
jurisdiction to review administrative actions and ensure compliance with legal
requirements. Landmark cases such as Council of Civil Service Unions v.
Minister for the Civil Service [1985] AC 374 (known as the GCHQ case)
affirm the principle of legality and the importance of administrative actions
being authorized by law.
Public Participation:
 The Constitution of Kenya emphasizes public participation as a cornerstone of
democratic governance and the rule of law. Public participation in
administrative decision-making processes enhances transparency,
accountability, and legitimacy. The Public Participation Act, 2018, provides a
legal framework for public involvement in administrative processes, ensuring
that decisions are made in the public interest and reflect the needs and
concerns of affected stakeholders
Case Law:
 Kenyan courts have consistently emphasized the importance of the rule of law
in administrative law cases. In Republic v. Kenya Revenue Authority &
another ex parte Tata Chemicals Magadi Ltd [2016] eKLR, the court stressed
the need for administrative actions to be carried out in accordance with the law
and not arbitrarily or capriciously. Similarly, in Republic v. Kenya Revenue
Authority & another ex parte Devani's Supermarket Ltd & 4 others [2018]
eKLR, the court reiterated that administrative actions must be lawful,
reasonable, and procedurally fair.
ii. Separation of powers

In the Kenyan context, the concept of separation of powers in administrative law refers to the
division of governmental authority among three distinct branches: the executive, the
legislature, and the judiciary. This principle is enshrined in the Constitution of Kenya, 2010,
and plays a crucial role in ensuring accountability, checks and balances, and the protection of
individual rights. Here's how the concept of separation of powers operates within
administrative law in Kenya:
Constitutional Framework:
 The Constitution of Kenya, 2010, establishes a clear separation of powers
among the three branches of government: the executive, the legislature, and
the judiciary. Article 1 of the Constitution vests sovereign power in the people
of Kenya, who exercise it through their elected representatives and through
direct participation in governance.
Executive Branch:
 The executive branch is responsible for implementing and enforcing
laws, as well as administering government policies and programs. It is
headed by the President, who is both the head of state and the head of
government. The President exercises executive authority with the
assistance of Cabinet Secretaries and other appointed officials. The
executive branch is primarily responsible for the day-to-day
administration of government affairs, including the implementation of
laws enacted by the legislature.
Legislative Branch:
 The legislative branch is responsible for making laws and overseeing
the actions of the executive branch. It consists of the bicameral
Parliament, which includes the National Assembly and the Senate.
Members of Parliament are elected by the people of Kenya to represent
their interests and to enact legislation. Parliament exercises its
legislative authority through the introduction, debate, and enactment
of laws, as well as through its oversight function, which includes
reviewing government policies and expenditures.
Judicial Branch:
 The judicial branch is responsible for interpreting and applying laws, as
well as resolving disputes. It is headed by the Chief Justice and
comprises various courts, including the Supreme Court, the Court of
Appeal, the High Court, and subordinate courts. The judiciary acts as a
check on the other branches of government by ensuring that their
actions comply with the Constitution and the rule of law. It also
protects individual rights through judicial review and constitutional
interpretation.
Separation of Functions:
 In addition to the separation of powers among the three branches of
government, there is also a separation of functions within each branch
to prevent the concentration of power. For example, within the
executive branch, different ministries and agencies are responsible for
specific functions, such as health, education, finance, and security. This
division of labor helps to ensure efficiency, accountability, and
transparency in the administration of government affairs.
Checks and Balances:
 The separation of powers in administrative law is further reinforced by a
system of checks and balances, where each branch of government has
some measure of influence over the others. For example, the President
can veto legislation passed by Parliament, but Parliament can override
the veto with a two-thirds majority. Similarly, the judiciary can declare
executive actions or legislation unconstitutional through judicial review.
Independent Institutions:
 The Constitution of Kenya also establishes independent institutions,
such as the Independent Electoral and Boundaries Commission (IEBC),
the Ethics and Anti-Corruption Commission (EACC), and the Office of
the Auditor General, which play a crucial role in promoting
accountability, transparency, and good governance. These institutions
operate independently of the executive, legislature, and judiciary,
further enhancing the separation of powers.
Case Laws:
Supreme Court Advisory Opinion No. 2 of 2013 (The National Land
Commission Act, 2012):
 The Supreme Court of Kenya, in this advisory opinion, underscored the
importance of respecting the separation of powers between the
executive and independent commissions established under the
Constitution. The court held that the National Land Commission (NLC),
as an independent constitutional body tasked with managing public
land, must operate autonomously and without interference from the
executive branch. The opinion affirmed the judiciary's role in
safeguarding the independence of administrative bodies and ensuring
they perform their functions free from external influence.
Council of Governors v. Controller of Budget & 3 Others (2013):
 In this case, the High Court addressed the separation of powers
between the executive and other constitutional bodies, particularly the
Controller of Budget. The court held that the Controller of Budget,
while appointed by the executive, must exercise independent oversight
over public finances and ensure compliance with budgetary laws. The
decision emphasized the importance of maintaining the autonomy and
integrity of administrative bodies in fulfilling their statutory mandates.

iii. Natural Justice

In the Kenyan context, the fundamental principles of administrative law, particularly
the principles of natural justice, are rooted in the Constitution of Kenya, statutes, case
law, and common law principles. Natural justice, also known as procedural fairness, is
a foundational concept that ensures fairness, impartiality, and transparency in
administrative decision-making processes. Here's how the principles of natural justice
are applied in Kenya:
1. Constitutional Protection:
 The Constitution of Kenya, particularly Chapter Four on the Bill of
Rights, guarantees the right to fair administrative action. Article 47 of
the Constitution provides that every person has the right to
administrative action that is expeditious, efficient, lawful, reasonable,
and procedurally fair. This constitutional provision forms the basis for
the application of natural justice principles in administrative law.
2. Audi Alteram Partem (Right to be Heard):
 The principle of audi alteram partem, or the right to be heard, requires
that parties affected by administrative decisions be given an
opportunity to present their case before a decision is made. In Kenya,
this principle is applied in various administrative processes, including
disciplinary proceedings, licensing decisions, and regulatory actions.
Administrative bodies are required to provide notice to affected parties,
disclose relevant information, and allow them to make representations
or submissions.
3. Impartial Decision-Makers:
 Another aspect of natural justice is the requirement for decision-
makers to be impartial and unbiased. Administrative bodies and
officials must act fairly and without bias in making decisions that affect
individuals' rights, interests, or obligations. This principle ensures that
decisions are made based on the merits of the case and not influenced
by personal or external factors.
4. Reasons for Decisions:
 Administrative bodies are generally required to provide reasons for
their decisions, particularly when those decisions adversely affect
individuals' rights or interests. The requirement for reasons ensures
transparency and accountability in administrative decision-making
processes. It allows affected parties to understand the basis for the
decision, assess its legality and fairness, and seek redress if necessary.
5. Right to Appeal or Review:
 Natural justice principles also encompass the right to appeal or seek
review of administrative decisions. Individuals affected by
administrative decisions have the right to challenge those decisions
through appropriate mechanisms, such as internal appeals,
administrative reviews, or judicial review. These mechanisms provide a
safeguard against arbitrary or unjust administrative actions and ensure
accountability of administrative bodies.
6. Judicial Review:
 In Kenya, the courts play a crucial role in upholding the principles of
natural justice through the process of judicial review. The High Court
has jurisdiction to review administrative actions, decisions, or omissions
to ensure compliance with the principles of legality, procedural fairness,
reasonableness, and non-arbitrariness. Judicial review acts as a check
on the exercise of administrative power and ensures that administrative
bodies act within their lawful authority and in accordance with the
principles of natural justice.