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Warning: TT: undefined function: 32 Warning: TT: undefined function: 32THE UNIVERSITY OF NAIROBISchool of Law####### TOPICWhat is Administrative Law Principle of? GPR 213: Administrative Law####### STUDENT:OTUNGE, Daniel Ochuoga G34/135418/####### MODULE II: 2. EVENING CLASS####### LECTURER:Dr Seth ...

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THE UNIVERSITY OF NAIROBI

School of Law

TOPIC What is Administrative Law Principle of? ________________________________________________________________________ GPR 213: Administrative Law

STUDENT: OTUNGE, Daniel Ochuoga G34/135418/2019 MODULE II: 2.1. EVENING CLASS

LECTURER: Dr Seth Wekesa

OCTOBER 2019

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Unlocking the Legal Doctrine of Legitimate Expectations By Ochuoga Otunge

1. Introduction This paper examines the principle of legitimate expectations and its significance as an administrative law doctrine. To properly peg the doctrine of legitimate expectations, the paper begins by defining administrative law, its legal foundations and principles before embarking on the principle under review. Administrative law is part of public law1 that governs the exercise of administrative functions, powers and duties by the three arms of government (legislature, judiciary and executive). Administrative law provides legal remedies available to persons whose rights are breached. Thus, it serves to regulate governmental power to entrench democracy, rule of law, constitutionalism and principles of natural justice.2 In Kenya, administrative law is mainly underpinned by common law (due to Kenya’s history of British colonial rule), the constitution, statutes and delegated legislation3. One of the key pillars of administrative law in Kenya is the Constitution. Article 47 outlines the standards of fair administrative action required of public administrators and other decision-makers whose actions affect legal rights of individuals directly or indirectly. Article 47(1), for example, provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.4 Administrative laws are diffused in many Kenyan statutes, regulations and bylaws. However, the main statute that codifies principles of administrative action in Kenya is The Fair Administrative Action Act, 2015. This piece of legislation gives effect to Article 47 of the Constitution.5 2. Principles of administrative law The legal functions, duties and powers entrusted to authorities are enormous and often discretionary hence prone to abuse. Thus, administrative law provides mechanisms for checking and holding administrators accountable for their actions or omissions. This is done through certain administrative law principles which can be judicially deployed to rein-in wayward authorities. Migai Akech6 has provided a succinct outline of the fundamental principles of administrative law. These include, the Right to participate/duty to consult; Legality; Reasonableness; Proportionality; Justification; Independence; Accountability, and Legitimate expectations. The following section examines in details the principle of legitimate expectation, which is the subject of this paper.

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David Foulkes, Foulkes’ Administrative Law, Butterworths, London, 1990, 7th Edition. Migai, Akech, Administrative Law, Strathmore Press, Nairobi, 2016. 3 Onyoyo, P. O., Administrative Law: Kenya Experience, Lambert Academic Publishing, Nairobi, 2019 2nd Ed. 4 Constitution of Kenya, 2010, Laws of Kenya 5 See Section 1 of The Fair Administrative Action Act, 2015 6 See Supra note 2 2

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3. The Principle of legitimate expectation As various scholars have noted, the principle of Legitimate expectations is one of the legal tools court’s use to control the exercise of public powers as provided by administrative law. The past practices and conduct of administrators, coupled with promises made by authorities through laws, rules, policies, procedures and statements, normally create expectations among members of the public on how such powers would be exercised.7 Any deviance or breach of such promises would, therefore, raise eyebrows and trigger some reactions from the public.8 This is because people often rely on and benefit from standard public policies and they would therefore be disappointed in case of unilateral abrogation. The principle of legitimate expectation guards against such disappointments by providing legal remedies. According to Migai Akech, the principle “states that where a public authority has represented…that it will conduct itself in a particular way, the person to whom the representation was made may have a legitimate expectation that the public authority will act as it has represented.” Thus, the general rule is that courts will stop a decision-maker from making a particular decision or will quash a decision if it is found to be contrary to legitimate expectations of the public or an individual. Historically, the relatively novel principle of legitimate expectations owes its legacy to English common law. It was fashioned by judges to facilitate effective judicial review of administrative action to ensure fairness. It is firmly rooted in two major case laws. First, the famous Lord Denning introduced the principle in the groundbreaking case of Schimdt v Secretary of Home Affairs 9 wherein it was held that “the holder of an entry permit had legitimate expectation that he would be able to enter and remain in the country according to the terms of the permit, and that this expectation could not be defeated without granting him a chance to put his views against a possible adverse decision.” Second, in the GCHQ case, Lord Diplock and others, held that the trade union that had been customarily consulted on matters affecting the workplace had legitimate expectation to be similarly consulted on such matters in the absence of exceptional circumstances.10 In Kenya the principle was applied in David Oloo Onyango case.11 The appellant, who had been convicted of sedition, was entitled to a remission due to good behaviour pursuant to The Prisons Act12. Contrary to the appellant’s expectations, the commissioner of prisons arbitrarily wrote to the officer-in-charge of the prison directing that he be denied his right to the remission. The appellant appealed and won because the court noted that ‘where citizens reasonably expect public decision makers to act fairly, these

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See Supra note 2, p. 42 Moules R, Actions Against Public Officials: Legitimate Expectations, Misstatement and misconduct, Sweet & Maxwell, London, 2009. 9 Schmidt and Another v Secretary of State for Home Affairs [1969]1 AC. 904 10 Council of Civil Service Unions v Minister for the Civil Service [1985] AC. 374(HL 401). Also called the GCHQ case. 11 David Oloo Onyango v Attorney-General [1986] Civil Appeal No 152 12 The Prisons Act, Cap 90, Laws of Kenya 8

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decision-makers cannot then act unfairly.’ There are two broad categories of legitimate expectation: procedural and substantive. Procedural legitimate expectation arises where a public authority’s past decisions have induced in the plaintiff a reasonable expectation that he or she will be granted a hearing or that certain procedure would be followed ‘before a decision depriving him of some benefit or advantage is taken’.13 Where there is breach or failure of procedural expectations, the affected party has a right to seek court protection. And courts have extended such protection to aggrieved parties where appropriate.14 Substantive legitimate expectation arises where a public authority has induced rational expectation in an individual that he or she will be granted or retain some substantive benefit. Any breach of such promise would be considered unlawful, especially where the individual had relied on the promise. As established in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (CA), failure on the part of the public authority to act in accordance with the expectation is considered to be unfair and amounts to abuse of power. The brief facts of this case are as follows. Coughlan and other patients were initially being cared for in Newcourt Hospital. They were persuaded to shift to Mordon House by express promises by the Health Authority that they could live there “for as long as they choose” and that Mordon House was better suited to their needs. The authorities decided to close down Mordon House and relocate the patients to other hospitals without considering the promise it had made to the residents and weighing all options available to it. Coughlan challenged this decision as it was in breach of the promise made to her and won. It is notable that courts are reluctant to apply substantive legitimate expectation doctrine for fear of interfering with the doctrine of separation of powers. Thus, courts mainly do so where it is necessary to ‘protect those who would otherwise go unprotected’15 yet they have received and acted on a representation by an authority.16 This case established the abuse of power test that has been adopted by many common law jurisdictions as it gave a much larger scope for application for violation of substantive legitimate expectation to succeed compared to the test under the Wednesbury case.17 In Kenya, the principle of legitimate expectation has both constitutional and statutory foundations. Public trust is essential for smooth running of government affairs. Where there is a crisis of confidence in government, there is likely to be some disquiet that could lead to unrest. For decades, the various arms of government (judiciary, executive and legislature) have acted in ways that have resulted in erosion of public trust. For example, lack of trust in the judiciary contributed significantly to the 2007 post13

Clayton R, Legitimate Expectations, Policy, and the Principle of Consistency (CLJ,2003) See GCHQ case 15 Reynolds P, ‘Legitimate Expectations and the Protection of Trust in Public Officials’ Public Law, 2011, 330 16 See R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 17 Associated provincial Picture Houses Ltd v Wednesbury Corporation [1948] 14

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election violence in Kenya when the opposition coalition refused to challenge the disputed presidential election results in court. This is one of the reasons why the 2010 Constitution entrenched the principle of that public authority must be held and exercised in trust.18 Article 73(1)(a), for example, explicitly states that authority assigned to a state officer is a public trust to be exercised in a manner that, among other things, is consistent with purposes and objects of the constitution and demonstrates respect for the people. This forms the basis for constitutional protection of legitimate expectations in the country. The rule of law and the need for protection of public trust, which are central pillars of the Kenyan constitution, also underpins the principle of legitimate expectations. The main statutory pillar of legitimate expectations is the Fair Administrative Action Act, 2015. Section 7 (2)(m) of the Act provides that “A court or tribunal under subsection (1) may review an administrative action or decision, if the administrative action or decision violates the legitimate expectations of the person to whom it relates.” In terms of significance, the principle is important because it keeps authorities on their toes to ensure public officials’ endeavor to build public trust through their actions. Maintenance of public trust is vital because it reassures people that they can rely on the promises made and assurances given by public authorities. Thus, the centrality of legitimate expectations in ensuring the much-needed predictability and clarity of administrative actions and laws needs no emphasis.19 In addition, the test in the Coughlan case gave courts more room to acknowledge legitimate expectations as being a sufficient locus standi for a judicial review even if the administrative action is intra vires. In Kenya, such additional tools are necessary in ensuring courts are able to effectively protect people’s rights to enjoy fruits of the robust Bill of Rights provided in Chapter Four of the Constitution. Beginning from the David Oloo Onyango case, legitimate expectations’ jurisprudence has rapidly expanded in Kenya, thanks to the promulgation of the transformative 2010 Constitution.20 Under the new law, the principle of legitimate expectation ceased to be an issue of the common law merely owing its relevance to the ‘reception clause’ in our Judicature Act.21 In the Juliet Angufa case, 22 justice Korir set the standard test for the principle. In an election petition-related case,23 Justice Mwicigi held that a promise made by a public authority may give rise to legitimate expectations in a recipient who acts on the basis of the promise. In the Keroche Industries Limited v Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240, the court held that legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects 18

See Artiles 1, 10, 47, 73, 94, 129, 159 and 174(c) among others. They generally state that all sovereign power belongs to the people and are held in trust to the various organs of government 19 See Supra note 15 20 Franceschi G. L and PLO Lumumba, The Constitution of Kenya: A Commentary. Strathmore University Press. Nairobi, 2nd Ed, 2019 21 S.3(1)(c) Chapter 8 Laws of Kenya (Cap 8) 22 R v Pharmacy and Poisons Board and 2 Ors ex Parte Julliet Lihemo Angufa [2014] 23 Joel Nyabuto Omwenga & 2 Others V IEBC & another [2013] eKLR

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that he will be treated in one way and the public body wishes to treat him or her in a different way.’ And in the Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR, it was ruled that ‘judicial review orders may be granted where the impugned decision goes against the legitimate expectations of the applicant’. In a more recent case of R v The Principal Secretary of Mining (ex-parter Airbus Helicopters Southern Africa (PTY)Ltd [2017]eKLR, Justice Odunga gave an order of mandamus compelling the respondent to inform the applicant regarding the tender because the applicant has legitimate expectation and the respondent ‘is clearly under duty’ to do so. 4. Summary Being able to circumscribe the exercise of discretion is one of the major contributions of legitimate expectation. However, courts have done well to limit itself in application of the doctrine as this would lead them dangerously deep into the territory of the other arms of government thereby threatening the much-cherished liberal democratic principle of separation of powers. Obviously, there must be limits to judicial activism. Some delicate balance must be maintained between upholding individual rights and protecting public interest as was rightly established in the Begbie24 case. Even so, the replacement of the test of Wednesbury’s unreasonableness with test of abuse of power under the Coughlan case serves the interest of justice, rule of law and democracy in a much wide sense as envisaged under Kenya’s transformative Constitution which gives wide powers to courts for judicial review.25

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R v Secretary for Education and Employment ex-parte Begbie [2001] 1 WLR 1115. Articles 23, 47, 159 and 165

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