Group 8 Admin LAW Assignment PDF

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UNIVERSITY OF NAIROBISCHOOL OF LAWGPR 213: ADMINISTRATIVE LAWGROUP EIGHT (8)August 2, 2019GROUP 8.NAME: REGISTRATIONNUMBER:SIGNATURE:MUNYAO PETER MWILU G34/83595/AJIGO REBEKAH IVY AKINYI G34/83468/MULATYA SERAHMWONGELIG34/83504/THANDI CYNTHIA NJERI G34/83451/GICHERU MARY NYAWIRA G34/83433/OWINO NICH...

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UNIVERSITY OF NAIROBI SCHOOL OF LAW

GPR 213: ADMINISTRATIVE LAW

GROUP EIGHT (8)

August 2, 2019

GROUP 8. NAME: MUNYAO PETER MWILU AJIGO REBEKAH IVY AKINYI MULATYA SERAH MWONGELI THANDI CYNTHIA NJERI GICHERU MARY NYAWIRA OWINO NICHOLAS OWINO MULI RAYMOND MUSYOKI MWENDA GRACE MWIHAKI NTHIWA M DAVID NDUMO DAVID MUIRURI NYADIMO ALFRED OTIENO KIMANI KELVIN KURIA

REGISTRATION NUMBER: G34/83595/2017

SIGNATURE:

G34/83468/2017 G34/83504/2017 G34/83451/2017 G34/83433/2017 G34/82313/2017 G34/83485/2017 G34/83524/2017 G34/83555/2017 G34/83571/2017 G34/83612/2017 G34/37345/2016

With reference to decided cases and Fair Administrative Action Act 2015, discuss ultra vires, jurisdictional error, error of fact and error of law as grounds for judicial review in Kenya 1.0 INTRODUCTION Judicial review is the means through which administrative bodies are prevented from exceeding powers and functions assigned to them by law thereby protecting the interests of individuals. On

application therefore, the high court is obligated to review the manner in which an administrator’s decision is made since judicial review is concerned with the decision making process rather than the merits of a decision. Judicial review is sought when the decisions or acts of the body are considered as going beyond their powers or where there is incorrect use of discretion granted to them. Judicial review acts as a law remedy that enables aggrieved parties are able to seek redress providing the remedies of certiorari, mandamus and prohibition. In Kenya, judicial review is enshrined in the constitution of Kenya 2010 which is seen in article 47 that states that every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.1 Parliament in effect to Article 47(3) of the constitution enacted the Fair Administrative Action Act 2015 expected to provide for review of administrative actions while promoting efficient. 2Section 7(1) of the Fair Administrative Action Act states that Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to a) A court in accordance with section 8 or b) A tribunal in exercise of its jurisdiction conferred in that regard under any written law The discussion in this paper will therefore focus mainly on four grounds of judicial review that may give a person a locus standi apply for judicial review, these are: Ultra vires, jurisdictional error, error of fact and error of law.

2.0 ULTRA VIRES AS A GROUND FOR JUDICIAL REVIEW Courts have developed certain principles and norms to control and ensure lawful exercise of power such as the doctrine of Ultra vires which is a concept in which entities go beyond their powers or deal with matters that lies outside powers conferred to them rendering their actions or acts invalid. The doctrines of ultra vires is sub-divided into two, substantive ultra vires and judicial ultra vires which are both discussed below.

1 Constitution of Kenya, 2010 2 Fair Administrative Act, 2015 S 7

According to the Fair Administrative Action Act of 2015, Section 9. (1) stipulates: Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. 3

This provides a channel for Judicial review to take place whenever the public is aggrieved by

any decision made in Ultra vires. 2.1 Substantive Ultra vires This happens when an administrative body given a mandate to formulate its own laws then the subordinate legislation made goes beyond the required standard issued to that organization or it squabbles the parent Act, suggesting that any organ stipulated with a duty to make rules has no substantive power under the parent act to come up with laws at hand4. The rule making bodies thereby have a duty to formulate laws which are in accordance with the enabling act and also to ensure that the laws they make do not infringe human rights. Simply put, substantive ultra vires is where administrative bodies act outside the terms of their statutory power. If the laws made are unreasonable then an organization or any member of the public who feels oppressed by the laws in place can go to court to oppose that section of subsidiary legislation. This implies that the courts are capable of intervening the matter at hand to prevent abuse of power by those public authorities since at times laws can be created for the wrong purpose or in a disobliging manner. While the petition is in court, it is the duty of the judge to elucidate the content of the parent act so as to determine whether the law was made ultra vires and if it is found to have been made beyond the required powers it is stated to be void and if some part of it is seen to be valid and another invalid the valid one will be functional until proven otherwise and incase the valid one and the invalid are found to be inseparable then the whole section is dealt away with5. This is 3 Fair Administrative Action Act 2015 4 'The Doctrine of Substantive Ultra Vires' (Lawteacher.net, 2018) accessed 30 July 2019. 5 'Substantive Ultra Vires - Google Search' ( Google.com) accessed 30 July 2019.

demonstrated in the case of R v Cabinet secretary for transport and Infrastructure and 5 others Ex parte Kenya country Bus owners Association (Through Paul G. Muthumbi- chairman, Samuel Njuguna – secretary Joseph Kimiri Treasurer) and 8 others [2014] eKLR6 which was a case dealing with concerns on legal notice No. 219 of 2013, National Transport and safety authority Act No.33 of 2012 and Traffic Cap 403 of Laws of Kenya. The applicants were issued with licenses to conduct travels both day and night as they had met the required standards but due to increase in the number of accidents by public service vehicles during night time the respondents revoked their licenses for 12 hours banning night travel without issuing of notice or being heard which was against the provision of natural justice which states that no one should be castigated without being heard. The respondents formulated legal Notice 219 of 2013 which contained regulations on public service vehicles and issued orders to the applicants to do away with night travel which was against Section 61(1) of the National Transport an Authority Act No. 33 of 2012. The respondents’ action made the applicants not to invoke S 34(2) of the Act making the Legal notice 219 of 2013 to be deemed ultra vires since it was against the provisions of Article 47(1) of the constitution. It was held that the provisions do not do away with night travels but instead has regulations which ought to be followed to ensure safety of those using public means of transport since consumers have their own rights under Article 46(1) of the constitution hence the minor errors had to be amended instead of doing away with the whole enactment so as not to deprive the members of the public some benefits in the provisions of the act thereby making Regulation 16 of National Transport and Safety Authority Regulations 2013 to be considered ultra vires to regulations of S24(5) of the statutory instrument Act No. 33 of 2012 hence declared null and void. Regulation 5(1) (f) of the National Transport and Safety Authority 2013 was found uncooperative and ultra vires to S 23 (3) of the Statutory Instrument Act No. 33 of 2012 and the respondents were ordered to initiate reasonable negotiations with the applicants and the members of the public.

2.2 Procedural Ultra vires 6 'Judicial Review Case No. 2 Of 2014 - Kenya Law' (Kenyalaw.org) accessed 31 July 2019.

When a statute gives a government entity powers to deal with certain tasks, in most instances this comes with a well stipulated procedure for the body to follow. Where the indicated procedure is not followed the action becomes illegal, this is what is referred to as procedural ultra vires. Where there is no procedure prescribed the common law rules of natural justice and fairness must be applied in decision making. The demands of sound administration entail the need to act reasonably, in good faith and on relevant considerations.7 Procedural ultra vires is clearly evidenced in the case of Miguna Miguna v Fred Matiang’i, Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 8 others [2018] EKLR.8In February 2018 Miguna Miguna was deported to Canada under order of certain government officials who claimed that he had denounced Kenyan citizenship. The spokesman of the ministry of Interior Security said that Miguna had done this some years back and even acquired Canadian citizenship and never reclaimed Kenyan citizenship in the legally prescribed manner and neither did he come out to state he had Canadian citizenship. It was not clear what law the government used to eject him from the country nor the procedure followed in doing so. Justice Chacha Mwita ruled that Miguna’s birthright cannot be affected despite having a Canadian passport adding that his rights were infringed and violated when he was deported. The court then ordered for a compensation of seven million be awarded to the injured party. The Cabinet Secretary in this case acted in Ultra vires having gone against the laws on the land. The courts came in to review this decision by Cabinet Secretary Matiang’i as it was unconstitutional and against the natural laws of justice and fairness In Republic v Public Procurement Administrative Review Board & 2 others [2019] Eklr, the ex parte applicant which is a public university had developed an Annual Procurement Plan for the year 2017/2019 for the purposes of developing the Curriculum for Bachelor of Laws. Pending for determination, one of the issues that was clearly set out in this case was whether there was procedural impropriety in coming up with the decision. The Respondent’s action was described to be ultra vires and that it violated the rules of Natural Justice (namely, nemo judex in causa sua-rule against bias; and audi alteram partem which is right to be heard fairly) when the ex parte applicant was deemed unheard. 7 PLO Lumumba and Peter Kaluma, Judicial Review in Kenya Law & Procedure.

8 'Constitutional Petition 51 Of 2018 - Kenya Law' (Kenyalaw.org, 2019) accessed 12 July 2019.

The decision therefore was described to be unjust and unfair and that if it was to be adhered to, it would lead to utter disrespect to the rule of law. Due to the lack of a hearing notice served to the ex parte applicant, the decision was said to be contrary to the cardinal rules of natural justice because the ex parte applicant was not allowed to be heard. This made the decision to be in violation to Article 47 & 50 of the Constitution 2010 and the Right to a Fair Administrative Action Act. The Court of Appeal cited the case of Judicial Service Commission v Gladys Boss Shollei & Another9 where the Court stated that the right to a fair hearing as set out in Article 50(1) of the Constitution alluded to the fact that one had to be informed of the case against him or her and be presented with an opportunity to challenge the case or present his side. One of the reasons forming the ground for judicial review according to section 7(2) of the Fair Administration Action Act included procedural impropriety. Proof of procedural impropriety necessitated the reason to quash any decision. Section 4 of the Fair Administrative Act imposes an obligation to the administrator to ensure that the administrative action is procedurally fair. Procedural impropriety as described by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service included any procedural error made in contemplation to any decision made by any public authority. Lord Diplock noted that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice,"

10

could result to procedural ultra vires. Procedural ultra vires involved the mere

overlook or absolute failure by the decision-maker to follow the statutory imposed procedural requirements.11

3.0 ERROR OF LAW AS A GROUND FOR JUDICIAL REVIEW.

9 Kenya Lawaccessed on 31st July, 2019. 10 Kenya Law accessed on 31st July, 2019. 11 Kenya Lawaccessed on 31st July, 2019.

The principle of legality12 spells out that as a matter of law, all legal flaws make a decision, not entirely void as it has been over time, but rather voidable.13 On matters judicial review, courts have the power to review decisions made by inferior tribunals or courts or administrative decisions14 on the grounds of error of law. This notion was affirmed in an English case in 195115 where a clerk had been laid off in 1949 and demanded that in his statutory compensation, both his work with the hospital and with the earlier local authority be included but the compensation tribunal dismissed the same. The order herein, contained an error of law and was rendered null and void by the House of Lords and legally ineffective. In the judgement, Lord Denning said, “We have here a simple case of error of law by a tribunal, an error which they frankly acknowledge. It is an error which deprives Mr. Shaw of the compensation to which he is by law entitled. So long as the erroneous decision stands, the compensating authority can dare not pay Mr. Shaw the money to which he is entitled lest the auditor should surcharge them. It would be quite intolerable if in such a case there were no means of correcting the error. The authorities to which I have referred amply show that the King's Bench can correct it by certiorari.” An error of law in most occasions, need not be one that needs lengthy examinations and investigations to be determined, it need not even be proven by evidence but is perceptible on the face of the record.16 In description therefore, an error of law is an ignorant deviation from the law and can occur on several instances and in which judicial review on grounds of error of fact blatant on the face of the record is applicable; 1. Where an administrative body or tribunal fails to ascertain what the law says about a particular matter. Such instances occur where the court or tribunal or administrative body is ignorant of the law as was the case of R v Inspector General of Police David Kimaiyo ex parte Aketch Okelo (2014) the respondent had ordered that all vehicles, public and private alike should get rid of tinted windows. This order was dismissed however, as the existing law 17 provided that a person shall 12 It states that every act of government undertaken must be justified by existing law for instance an act that is likely to infringe in the rights of the people ought to be supported by law. 13 David Feldman, ERROR OF LAW AND FLAWED ADMINISTRATIVE ACTS 14 The Fair Administrative Actions Act 2013 S7 provides for the circumstances upon which judicial review is applicable on administrative decisions. 15 R v. Northumberland Compensation Appeal Tribunal ex p Shaw, 16 PLO Lumumba, Peter Kaluma Judicial Review in Kenya (2ndEdn Law Africa Publishing (K) Ltd 2006). 17 Traffic Act Cap 403 S54 A 1&2

not operate a public service vehicle that is fitted with tinted windows translating to the law applying only to public transport vehicles and not private. The court over ruled the order by the inspector general on grounds that the order had been given to apply on the general public inclusive of groups that it was not meant for. 2. An administrative body or tribunal may misconstrue what the law says about the matter at hand. In the appeal case of Judicial Service Commission v Mbalu Mutava & Another {2015} eKLR the court allowed the appeal, the appellant had faulted the high court decision on the grounds that the high court had misconstrued the role of the JSC by purporting to confer to it, the role of a tribunal going against provisions of article 164(4)18 and that JSC mandates were subject to provisions of article 47 on fair administrative action. 3. where there is misdirection by a higher authority on what the law is This instance would occur where an administrative body seeks authority on what the law is for instance, where the head of TSC seeks direction from the office of the AG on what the law dictates on a particular matter and in the process is given misleading information. 4. where there is a total disregard of the law These are instances where a tribunal or court or an administrative body ignorantly fails to give determination on what the existing law dictates as it reaches a decision.19 In the case of R v Public/Private Partnerships Petition Committee & 3 Others Ex parte APM Terminals where the Kenya Ports Authority invited proposals from twelve shortlisted entities to operate Phase 1 of the second container terminal. APM Terminal were among the invited entities. The deadline for submission of the proposals was 26th June, 2015. Through a letter dated 16th July 2015 KPA wrote to the ex parte applicant informing it that its bid had failed at stage 1. the applicant sought that its application for judicial review should be allowed since the petition committee’s decision was tainted with illegality. According to the applicant the interpretation of the law and the constitution by the petition committee was founded on several errors of law, including:

18 The JSC shall consider the petition and if satisfied that the petition discloses grounds for removal, send it to the head of state. 19 Katana Fondo Birya v Krystalline Salt Ltd & 2 others [2018] eKLR

a) erroneously concluding that article 50(1) of the constitution does not create a right to fair hearing within the context of the petition; b) erroneously concluding that the applicant had sought to rely on the provisions of article 50(2) of the constitution which relate to criminal proceedings; c) erroneously finding that article 227(1) of the constitution in providing among other things, that procurement process should be equitable and fair does not apply to the disclosure of evaluation criteria applied in procurement process; d) erroneously concluding that the petition committee does not have powers in law to order production of documents in proceedings before it for use of parties. 4.0 JURISDICTIONAL ERROR AS A GROUND FOR JUDICIAL REVIEW. Any grant of jurisdiction will necessarily include limits to the jurisdiction granted and any granted power remains subject to conditions.20 When the legislature grants authority to an administrative decision maker, the authority will perforce be limited;21 The decision maker must act within the jurisdiction it has been granted: jurisdictional facts were to be distinguished from facts on which findings were conclusive only by the legislature’s having marked them out as condition forming facts; that is statutory language must show that these facts had actually to exist before the tribunal whose powers were being defined could have conditional jurisdiction.22 It is emphasized that only those errors that undermine the jurisdiction of a public body should be reviewable and that errors within jurisdiction are only challengeable on appeal where the statutes provide for one or pursuant to leave of court. Such errors that go to the jurisdiction include taking into account extraneous deliberations, irrationality, malice or bad faith, failure to act in consonance with the rules of national justice and such like other grounds.23 Therefore jurisdictional error in a nutshell arises when an error of law meets the threshold of materiality (which is determined by consideration of the relevant statute under which a decision maker is purporting to act).24

20 Union des employes de service, local 298 v Bibeault [1988] 2 SCR 1048 at 1086, per Beetz J 21 R v Schoreditch Assessment Committee, ex parte Morgan [1910] 2KB 859 at 880, per Farewell LJ 22 DM Gordon, ‘Conditional or Contingen...