Administrative law Notes Kenya PDF

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This document covers administrative law of Kenya ...

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Administrative law, though law is different from other branches of law as some times it goes beyond the law to examine administrative circulars, policy statements, memoranda and resolution. It is a branch of pulblic law, it deals with the relationship between individuals and gvt. It deals with organisation and power of administrative and quasi administrative bodies with emphasis on the manner of exercise of the power. Administrative law is primarily concerned with official action. It relies greatly on the common law. It is cross-cutting and will arise wherever a person becomes a victim of arbitrary exercise of public power. HISTORICAL DVLPT OF AL AL as practiced in Kenya has its origin in the laws of England. As a modern concept in England, Al began to emerge in the second half of the 17th century. However a number of the principles like natural justice pre-date this time. In earlier times in England justices of peace served as all purpose administrative authorities. They were supervised by judges of assize who conveyed instructions from the crown during their circuits and also dealt with defaults and malpractices. This system was strengthened under the Tudor mornachy through the use of the privy council and the provincial councils in the north and in Wales which was a drift towards centralisation of power. Oversight by the privy council was exercised through the star chamber which punished those who disobeyed the justices of peaceand reprimanded the justices themselves. After abolishion of the star chamber in 1642, and the destruction of most of the privy council executive power a new situation arose. The old machinery of central political control had been broken down therefore the court of kings bench stepped in and this ushered in a new era of control of administrative authority through courts of law. The kings bench issued its writs of Mandamus, Certiorari and prohibition together with ordinary damages to anyone who wished to dispute the legality of administrative acts of justices or other public authorities. The courts extended the application of the principle of ultra-vires and judicial preview. Later the same rules were applied to the administrative state and it began to emerge to regulate the central government. In kenya, the constitution now guarantees the right to fair administrative action as part of rights and fundamental freedoms under the bill of rights. Art 47 provides: a. Every person has the right to administartive action that is expenditious, efficient, lawful, reasonable and procedurally fair. b. If a right of fundamental freedom of a person has been or is likely to be adversely affected by administrative action the person has the right to be given written reasons for the action. c. Parliament shall enact legislation to give effect to the rights in cross 1 and the legislation shall: I. Review of admistrative action by a court of law or an independent tribunal II. Promote efficient administration In Kenya, the development of modern administrative law can be traced back to the advent of colonisation, Kenya was declared a British protectorate in 1895 and this was the start of deportation of British systems of governance including its systems of public administration.

THE RULE OF LAW It is a cardinal principle in the operation of AL. It provides that matters of governance should be based on the established laws and principles but not on the personal whims of the governors. It provides the starndards against which official action is accessed. It has its origin in the french phrase la principe de legalite. This refers to governance based on law and not of men. Lord Edward Coke is said to be the orinator in concept when he declared that the king must be under God and Law. The classic exposition of the principle of rule of law is to be found in the work of A.V Dicey the title ”introduction to the study of the law of the constitution”. Although the principle has different meaning, it is mainly understood to refer to 3 things in public administration that is: Legality Judicial independence Fairness. a) legality This aspect of the rule of law requires that everything must be done according to the law. In relation to administrative law every gvt authority which does some act that adversely affects the rights of a person must be able to justify that action as authorised by law. This authorisation could either be express or discretionary. Every gvt action must be legally sanctioned and any person aggrieved by such action must have the right to go to court and have such action or ommission invalidated if not in line with the laws. It requires gvt action to be conducted within a framework of recognised rules and principles and abhors(discourages) unlimited discretion. It would apply in cases where the legislature appears to have given overwhelming discretionary powers to a public authority. Rule of law seeks to strike a balance between the need of fair and efficient administration and the need to protect citizens from oppressive government. The principle of legality is also applicable to criminal procedure and imposes a number of obligations including the requirement that no one should be punished except for some legally defined crime and the prohibition gainst retrospective application of legislation. This principle prevents Government authorities or those in Government from acting ultra vires. b) Judicial independence Disputes about the legality of gvt actions are to be decided by judges who are independent of the executive. In the common law set up, dispute between citizens and the gvt are resolved by ordinary courts. c) Fairness The rule of law requires that the law should be even handed between the citizens and the government. It denies the government unnecessary privileges or excemptions from ordinary law.

Express references in the constitution as regard the rule of law. The constitution requires respect for the rule of law in numerous aspects in its preamble. It requires respect for rule of law in numerous aspects in its preamble it recognises the aspirations of all Kenyans for a government based on the rule of law:

Under Article 10 which provides for national values and principles which are supposed to bind all state officers, public officers and all persons also recognises the rule of law. In Article 91, an obligation is imposed on all political parties to promote the rule of law. Article 131(2)(e) requires the president to ensure the protection of the rule of law. Article 156(4)(a) and Art 156(6) requires the attorney general as the principle legal advisor to the government to promote, protect and uphold the rule of law. Article 238(2)(b) requires that national security be promoted and guaranteed in accordance with utmost respect for the rule of law. Article 259(1)(b) requires interpretation of the constitution to be in manner that promotes rule of law.

Natural justice require that . Its logic is that as government powers and actions become more drastic and invasive, fair procedure would make them more tolerable. In origin and character, rules of natural justice are largely common law, though continually embraced by legislation. Courts play a critical role in ensuring that rules of justice do not run amok . Decisions made without bias are not only more acceptable but also of better quality because they are consultative and avoid further friction in their enforcement

There are 2 fundamental rules of justice; A man may not be a judge in their own case. (nemo judex in resua) A man’s defense must always be fairly heard. (audi altarem parte) These principles not only apply to judicial authority but to all administrative authorities and in some instances private contracts. Natural justice is a conner stone of administrative law and the most litigated area of law. Principles of natural justice are so fundamental that not even the parliament can halt their application. The 2010 COK makes various references to the principle of natural justice: Art 47 Art 50(1)-every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or another independent and impartial tribunal.

No man can be a judge in his own case nemo judex in resua

The court declared invalid a decision in the college of physicians to impose a fine and imprison doctor bonham for practising in London without permit from the college. The college was a judge in its own case because half the fine paid went to the college.

A decision by a judge was nullified for affirming decrees in favour of a company in which he was a significant shareholder.

A solicitor was acting for a client against a motorist for damage caused in a road accident. The solicitor also served as a clerk to judges before whom the same motorist was convicted of dangerous driving. He had retired with the judges when they were considering their decision. Justice should not only be done but should manifestily and undoubtedly be seen to be done.

The court of appeal concluded that there was a real danger that a lay observer with knowledge of the facts would not have excluded the possibility of a bias.

A man’s defense must always be fairly heard-audi altarem parte. This principle is broad enough and would cover even the first principle because fair hearing must be an unbias hearing.

Lord parker “private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is from the agreement of the parties concerned”

Legitimate expectation This doctrine of legitimate expectation has developed to require application of natural justice in cases where though not expressly required there is a legitimate expectation of consultation based on a promise or an established practice of consultation.

The question whether there is a legitimate expectation is one of fact and the expectation be subject to the law.

It could be acceptable where the adjudicating authority has no discretion

Lord Wright stated; if the principles of natural justice are violated, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of natural justice.

Following boardroom wrangles between rival directors of CMCH, the capital market auhtority suspended trading in the shares of the company. Prior to intervention by the capital markets authority, the company had instructed Prime Waterhaul Coopers to carry out a forensic audit covering particular areas of the company business. The CMA separately commissioned Webber Wentzel to conduct forensic investigation into certain aspects of the financial operation of the company and its subsidiaries. Webber Wentzel was also required to review the PWC report and comment on the chronology and the conclusions drawn in the report. The CMA send the petitioner a copy of the Webber report and informed him that the board had appointed an ad hoc commnittee to cunduct investigation. The petitioner was requested to appear before the committee. The petitioner declined the invitation arguing that his appearance before the committee would occassion grave prejudice to him and to court proceedings over the same matter. The committee conducted its investigations and handed over its report to the CMA. The CMA subsequently announced through a press statement that they had taken enforcement actions against the petitioner and that the petitioner had been disqualified from any appointment as director of any listed company. The court held that the authority had breached the petitioners right to fair administrative action by failing to accord him a fair opportunity to respond to the findings of the committee before taking action against him.

The high court considered the difference btn Art 47 and 50 of the 2010 COK and noted that Art 47 and 50(1) protect separate and distinct rights which should not be conflated, that although the two rights embody and give effect to the general rules of natural justice they apply to different circumstances. Art 50(1) applies to a court, tribunal, or a body established to resolve a dispute while Art 47 applies to administrative action generally.

Lord Morris stated: there are in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case.

The court stated: the right of a man to be given a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that parliament intended that a failure of service should render null and void any decision reached in breach of any of these requirements. See; Nancy Baraza’s case. Republic vs public procurement administrative and review board. Nyongesa and others Vs Egerton University.

OMBUDSMAN The office of an ombudsman is an aspect of non-legal remedies which may be involved against irregular government action. It is a recognition that court procedure is too formal, expensive and slow and may not be appropriate for all complains. It provides a regular feedback mechanism based on impartial assessment and committment to remedy any complaint. The concept of an ombudsman is also known as a parliamentary commissioner for administratrion. Since the introduction of the concept, it has gained massive popularity and its application has been extended to other areas like the management of professional affairs. Ombudsman is a scandinavian word that means an officer or commissioner with the duty to investigate and report to parliament on citizens’ complains against the government. All an ombudsman requires is the power to investigate. He is not a court of appeal and cannot alter or reverse government action. His powers reside in his capacity to focus public and parliamentary attention upon the grievancies of citizens. Once the ombudsman makes its report public, government departments become apprehensive about parliamentary intervention and focus by the media. Once an ombudsman receives a complaint he should access the relevant department, speak to the officials, read the files and find out exactly who did what and why. In the UK, the office of the ombudsman was established in 1967. It is a commissioner and reports its findings to the parliament. In Kenya this office was first established in 2007 through gazette notice number 5826 of 29th June 2007. It was established under sec 23 of the replaced COK that gave the president the full executive authority. Originally when introduced in Kenya this office was known as standing committee on public complains. The estabishment of the office of the ombudsman in 2007 followed long agitation and the fact he was to report to the president was a compromise. The question of creating this office had been variously discussed earlier. It was recommended by the Ndegwa Commission in 1971. It was mentioned in the sessional paper in 1974. Again it was recommended in the Waruhiw commission of 1980. It was discussed in parliament in 1985 & again in 1995. The government opposed the creation of this office on account of a misunderstanding about the work of an ombudsman and it argued that creating the office would lead to duplicity within administrative rounds. The AG opposed a motion in 1995 to create the office saying that the proposed office had too much powers beyond what is envisaged in other countries. To the same motion an assistant minister in the office of the president responded that “Mr. Temporary speaker sir, this request for the office of an ombudsman is not a very recent thing. It is basically a brain child of a certain school of thought in the university of Nairobi. I have attended a very bright lecture in administrative law that touches on this question of ombudsman and i have always liked to treat it as an academic subject. Why should we create an office that performs the duty which is performed by other offices in this country, there is absolutely no reason to duplicate functionaries that are going to undertake the same purposes” Hansard November 8th 1995. The 2010 COK establishes this office in Art 59. That article is implemented by the commission on administrative justice Act of 2011. It establishes a commission on administrative justice. The

commission is established as a successor to the public complaints standing committee. The commission is similar to other commissions created under art 59 of the 2010 COK and has powers to: Conduct investigation on its own initiative or upon a complaint, Powers necessary for reconciliation, mediation and Power to recruit its own staff. Power to perform any function assigned by legislation The commission is headquatered in Nairobi but may create other branches. Function of the commission  To investigate any conduct in state affairs both at the national government level and the county government level.  To investigate complains of abuse of power and other malpractices within public administration  To report by-annually to the national assembly on complains investigated and action taken thereon.  To enquire into allegations of mal-administration, delay and other administrative injustices.  To facilitate the setting up of and to build complaint handling capacity in the public sector.  To recommend compensation or other appropriate remedies against persons or bodies to which the Act applies.  To promote ADR methods in the resolution of complaints on public administration.  To provide advisory opinions and proposals on how to improve public administration.  To promote and protect human rights and to perform any other functions required by the constitution or any other writen law. The commission is made up of 3 commissioners and 1 secretary. The tenure of office for the commisioners is a one 6 year term non-renewable. Complains to the commission may be made by anybody and they may be made orally or in writen form. JURISDICTION OF THE COMMISSION It may be triggered upon a complaint or on its own volition. The matter complained against must be administrative and must involve a public office or a state corporation or any other body or agency of the state. According to sec 2 of the Act, an administrative action is one that relates to administration and includes:    

A decision made or an act carried out in the public service. A failure to act in discharge of public duty. The making of a recommendation to a cabinet sectretary. An action taken pursuant to a recommendation made to a cabinet secretary.

The jurisdiction of the commission is limited in the following instances:    

Proceedings or a decision of the cabinet or a committee of the cabinet A criminal offense A matter pending before any court or judicial tribunal. The commencement of the conduct of criminal or civil proceedings before any court or tribunal  The grant of any onus or awards by the president.

 A matter relating to the countries foreign policy.  Anything in respect of which there is a right of appeal or any other legal remedy unless the appeal or legal remedy is not available to the complainant.  Any matter pending under investigation by anybody or commisssion established by the COK or any other writen law. The commission may investigate administrative action despite a provision in writen law providing that the action is final or cannot be appealed challenged reviewed or called to question. The commission may decline to investigate a complaint but such a decision must be communicated to the complainant and the reasons therefore provided. Hearings of the commission must be public unless considered inappropriate. Upon completing its inquiry, the commisssion may take the following action: Where the investigations reveal a criminal offense, refer the matter to the director of public prosecutions for action. It may recommend to the complainant any other form of judicial redress. It may recommend to the complainant and the relevant governmental agency other appropriate methods of settling th...