Admin Law Notes PDF

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Administrative Law course summary notes...

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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

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Power

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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.

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History 

Why did it develop? o Administrative Law developed in order to

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What value does it add?

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Abishua o The value administrative law adds is that

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What purpose?

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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

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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.

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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

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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

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Those in power are not above the law and are limited by it

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Article 10

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Preamble

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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.

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John Locke

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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

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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

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How do you determine a public body? o Statute 

State Corporations

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KSLA

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CBKA

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If it performs a function which is derived from statute

o Constitution 

Executive 

Chapter 9 of the Constitution, Article 129, 130

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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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Public Service o Attorney General 

The office of the Attorney General is established under Article 156

o Director of Public Prosecution  

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Legislative 

Chapter 8, Art 94

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National Assembly

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Senate

Judicial 

Chapter 10, Art. 165

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Tribunals

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County Governments

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Commissions and Independent Offices 

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Established under Article 157

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.

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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

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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

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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

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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.

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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 2

Hear the other side 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.

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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

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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

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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

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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

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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

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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

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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

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It is not always essential, but whether it is depends on the circumstances

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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

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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

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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

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The denial of the right to legal representation in proceedings is the denial of the right to natural justice

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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. 

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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

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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

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Irrelevant information or information that is not material to the case need not be disclosed

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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.

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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.

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A body that fails to give reasons and explain its decisions exposes itself to being condemned unreasonable

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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

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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

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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

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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

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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.

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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

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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

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There is a strong presumption against delegated decisions, but in some instances it is permissible

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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.

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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.

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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

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The High Court also upheld this rule in the case of R v Staff Disciplinary Committee of Maseno Univer...