Title: Fair Administrative Action Act (2015) in Kenya

Slide 1: Introduction
⦁ Definition of Administrative Law: The body of law governing the activities
of administrative agencies of government, ensuring accountability,
transparency, and fairness.
⦁ Introduction to Fair Administrative Action: A fundamental statute ensuring
lawful, reasonable, and procedurally fair administrative actions in Kenya.
⦁ Enacted under Article 47 of the Constitution of Kenya (2010), which
explicitly grants the right to fair administrative action.
⦁ Why It Matters: Ensures protection of individuals from arbitrary
administrative decisions (not restrained or limited in the exercise of
power : ruling by absolute authority. an arbitrary government. b. : marked
by or resulting from the unrestrained and often tyrannical exercise of
power.) that could negatively impact their rights, duties, or legitimate
expectations.
Slide 2: Background and Enactment
Constitutional Foundation:
⦁ The Fair Administrative Action Act (2015) is derived from Article 47
of the Constitution of Kenya, 2010, which guarantees the right to
fair administrative action.
⦁ Article 47 mandates that every person has the right to
administrative action that is expeditious, efficient, lawful,
reasonable, and procedurally fair.
⦁ This provision was introduced to curb excessive administrative
discretion, ensuring decisions are made transparently and with
justifiable reasons.
Need for the Act:
⦁ Before the enactment of the Constitution of Kenya, 2010,
administrative decisions were mainly governed by common law
principles of natural justice.
⦁ Administrative authorities had broad discretion with minimal
statutory oversight, leading to instances of unfair treatment, abuse
of power, and lack of accountability.
⦁ There was no clear statutory framework requiring government
agencies to provide written reasons for their decisions, leading to

1
 arbitrary decision-making.
⦁ The promulgation of the 2010 Constitution necessitated a
structured legal framework to enforce administrative fairness,
leading to the enactment of the Fair Administrative Action Act in
2015.
International Influence:
⦁ The Act aligns with Kenya’s international human rights
obligations under:
⦁ Universal Declaration of Human Rights (UDHR) –
particularly Article 10, which provides for the right to a fair
and public hearing.
⦁ International Covenant on Civil and Political Rights
(ICCPR) – particularly Article 14, which guarantees fair
hearings before tribunals and other decision-making bodies.
⦁ African Charter on Human and Peoples’ Rights
(ACHPR) – which emphasizes the right to be heard and
procedural fairness in administrative matters.
⦁ Comparative legal systems, such as South Africa’s Promotion of
Administrative Justice Act (PAJA) of 2000, provided guidance in
structuring Kenya’s Fair Administrative Action Act.
Enactment of the Act (2015):
⦁ The Fair Administrative Action Act was enacted in June 2015 to
operationalize Article 47 of the Constitution.
⦁ The Act provides a statutory framework that:

⦁ Standardizes administrative decision-making processes.

⦁ Ensures compliance with constitutional principles.

⦁ Protects individuals and businesses from unfair

administrative practices.
⦁ Establishes judicial mechanisms for challenging unfair,
unlawful, or unreasonable administrative actions.
Slide 3: Objectives of the Act
⦁ Promote Good Governance: Ensures transparency and accountability in
administrative decision-making.

2
 ⦁ Protect Fundamental Rights: Guarantees fair procedures, preventing
abuse of power.
⦁ Ensure Compliance with the Rule of Law: Administrative actions must
align with the principles of legality, fairness, and justice.
⦁ Standardize Administrative Processes: Creates uniformity in
administrative procedures across government agencies.
Exemplary Case: Kenneth Stanley Njindo Matiba vs The Honourable
Attorney General (1998) eKLR
⦁ The appellant, a politician, authored and distributed a book titled Kenya
Return to Reason.
⦁ The government banned the book without prior notice or an opportunity
for the appellant to be heard.
⦁ The court ruled that failure to accord the appellant a fair hearing before
banning the book violated rules of natural justice and Article 47 of the
Constitution.
⦁ The case reinforced the right to be heard before any adverse
administrative action is taken.

Slide 4: Key Provisions of the Act

⦁ Section 3: The Act applies to public and private entities performing
administrative functions.
⦁ Section 4:

⦁ Right to fair administrative action.

⦁ Decision-making must be lawful, reasonable, and procedurally fair.

⦁ The affected party must be given an opportunity to be heard before

an adverse decision is made.
⦁ Section 5: Right to written reasons:

⦁ Any administrative action affecting an individual must be

communicated in writing with clear justification.
⦁ Prevents arbitrary decision-making and promotes transparency.

⦁ Section 6: Limitations on Providing Reasons:

3
 ⦁ Circumstances where reasons may not be disclosed (e.g., national
security, public interest concerns, classified information).
⦁ Section 7: Judicial review of administrative actions:

⦁ Courts have the power to review and overturn administrative

decisions that do not comply with the Act.
⦁ Grounds for judicial review include illegality, procedural impropriety,
unreasonableness, and bias.
Slide 5: Comparison with Common Law Principles
⦁ Common Law Doctrine of Natural Justice:

⦁ Audi alteram partem (Right to be heard): Individuals should be

given an opportunity to present their case before an administrative
decision is made.
⦁ Nemo judex in causa sua (Rule against bias): Decision-makers
must be impartial and free from personal or financial interest in the
matter.
⦁ Key Differences Between Common Law and the Act:

⦁ The Act codifies these principles into statutory law, ensuring they
are legally binding.
⦁ Unlike common law, the Act mandates that administrative bodies
provide written reasons for their decisions.
⦁ Expands procedural fairness by requiring timelines for decision-
making and appeals.
Slide 6: Relevant Case Law
⦁ Geoffrey Muthinja & Another v Samuel Muguna Henry & Others (Civil
Appeal No. 10 of 2015):
⦁ Reinforced the principle of exhaustion of alternative remedies before
seeking judicial intervention.
⦁ Held that litigants must first utilize available internal mechanisms (such
as mediation or administrative appeals) before approaching the courts.
⦁ Emphasized that judicial review should be a last resort unless the
alternative remedy is inadequate or ineffective.
⦁ Kenya Human Rights Commission v Non-Governmental Organizations

4
 Coordination Board (2016):
Significance of the Case
⦁ Reinforced the protection of NGOs and civil society from arbitrary
government actions.
⦁ Strengthened the application of the Fair Administrative Action Act,
2015, ensuring that government agencies adhere to due process.
⦁ Set a precedent for judicial review of administrative actions that
violate constitutional rights.
This case is crucial in the interpretation of fair administrative action in Kenya. It
underscores the duty of public bodies to act within the law and follow
procedural fairness when making decisions that affect individuals and
organizations.

Slide 7: Impact and Challenges

⦁ Positive Impact:

⦁ Strengthens constitutionalism and rule of law.

⦁ Enhances public trust in government institutions.

⦁ Promotes judicial oversight and prevents arbitrary decision-making.

⦁ Protects individuals and businesses from unfair administrative

actions. i.employment such as dismissals.
Challenges:
⦁ Compliance Issues: Many public institutions fail to adhere to the
Act.
⦁ Judicial Backlog: Increased cases of judicial review leading to
delays in justice.
⦁ Limited Awareness: Many Kenyans are unaware of their rights
under the Act.
⦁ Balancing Public Interest and Fairness: Some decisions (e.g., on
national security) may override individual rights, leading to
tensions.
Slide 8: Conclusion
⦁ The Fair Administrative Action Act (2015) is a crucial component of
5
 administrative justice in Kenya.
⦁ It ensures that administrative decisions are lawful, reasonable, and
procedurally fair, promoting good governance.
⦁ The Act codifies and strengthens common law principles while aligning
with constitutional and international human rights norms.
⦁ For effective implementation, there is a need for capacity-building, public
awareness, and strict enforcement.
Slide 9: References
⦁ Constitution of Kenya, 2010.

⦁ Fair Administrative Action Act, 2015.

⦁ Universal Declaration of Human Rights (UDHR).

⦁ International Covenant on Civil and Political Rights (ICCPR).

⦁ Judicial decisions and scholarly articles on administrative law.

Case Summary: Kenya Human Rights Commission v Non-Governmental
Organisations Co-Ordination Board [2016] KEHC 5405 (KLR)
Background
The Kenya Human Rights Commission (KHRC), a registered Non-Governmental
Organization (NGO), filed a case against the Non-Governmental Organisations
Co-ordination Board (NGO Board) after the latter deregistered KHRC. The NGO
Board alleged non-compliance with statutory requirements, including failure to
file tax returns and improper registration. KHRC challenged the decision, arguing
that it was made arbitrarily and without due process.
Key Issues
⦁ Whether the NGO Board followed due process in deregistering
KHRC.
⦁ Whether the decision violated the right to fair administrative action
under Article 47 of the Constitution and the Fair Administrative
Action Act (2015).
⦁ Whether the NGO Board acted within its statutory mandate.
Court’s Decision
⦁ The High Court ruled in favor of KHRC, holding that the NGO Board’s
decision to deregister KHRC was unlawful and procedurally unfair.

6
 ⦁ The court emphasized that administrative bodies must adhere to
procedural fairness, including giving affected parties a fair hearing
before making adverse decisions.
⦁ It was found that the NGO Board did not provide KHRC with sufficient
notice or an opportunity to respond before taking action.
Key Legal Principles Established
⦁ Fair Administrative Action (Article 47, Constitution of Kenya & Fair
Administrative Action Act, 2015):
⦁ Administrative decisions must be lawful, reasonable, and
procedurally fair.
⦁ Affected parties have the right to be heard before an adverse
decision is made.
⦁ Right to Written Reasons (Section 4 of the Fair Administrative Action
Act, 2015):
⦁ Public bodies must provide clear, written reasons for their
decisions, ensuring transparency and accountability.
⦁ Judicial Oversight on Administrative Actions:

⦁ Courts have the power to review and overturn administrative

decisions that do not comply with principles of natural justice and
statutory requirements.
Significance of the Case
⦁ Reinforced the protection of NGOs and civil society from arbitrary
government actions.
⦁ Strengthened the application of the Fair Administrative Action Act,
2015, ensuring that government agencies adhere to due process.
⦁ Set a precedent for judicial review of administrative actions that violate
constitutional rights.
Application in Fair Administrative Law
This case is crucial in the interpretation of fair administrative action in Kenya. It
underscores the duty of public bodies to act within the law and follow
procedural fairness when making decisions that affect individuals and
organizations.

7
Case Summary: Geoffrey Muthinja & Another v Samuel Muguna Henry &
Others (Civil Appeal No. 10 of 2015)
Background
The case involved a dispute between members of a religious group regarding
leadership and management of church affairs. The appellants, Geoffrey Muthinja
and Robert Banda Ngombe, challenged the respondents over governance issues
within their religious organization. The dispute led to a case before the High
Court of Kenya at Meru, where the appellants sought judicial intervention.
High Court Decision
The High Court dismissed the appellants' case on the basis that they had failed
to exhaust internal dispute resolution mechanisms before seeking judicial
intervention. The court emphasized the principle of exhaustion, requiring
parties to first pursue available alternative remedies before resorting to litigation.
Appeal to the Court of Appeal
The appellants challenged the High Court’s ruling, arguing that their
constitutional rights had been violated and that internal mechanisms were
ineffective in resolving the dispute. They contended that the Fair Administrative
Action Act (2015) and Article 47 of the Constitution entitled them to fair
administrative action without unnecessary procedural obstacles.
Court of Appeal Ruling
The Court of Appeal upheld the High Court’s decision, reinforcing the doctrine
of exhaustion of alternative remedies before filing a case in court. It ruled that:
⦁ Exhaustion of Alternative Remedies – Litigants must first utilize
available internal mechanisms (such as mediation or administrative
appeals) before seeking court intervention.
⦁ Judicial Review as a Last Resort – Courts should only intervene when
alternative remedies are inadequate or ineffective.
⦁ Role of the Judiciary – The court should not unnecessarily interfere in
matters where internal dispute resolution frameworks exist unless
exceptional circumstances justify it.
Impact of the Decision
⦁ This case established a precedent reinforcing the principle that internal
remedies must be exhausted before litigation.
⦁ It emphasized the subsidiarity of judicial review, meaning that courts
should intervene only when no other effective remedy is available.

8
 ⦁ The ruling has influenced administrative and governance disputes,
requiring litigants to comply with dispute resolution procedures before
seeking court relief.
Conclusion
The appeal was dismissed, affirming that administrative justice and fair
procedures require parties to first exhaust internal dispute resolution
mechanisms before turning to the courts. The decision aligns with Kenya’s
constitutional principles on fair administrative action and good
governance.