JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY

KAREN CAMPUS
SCHOOOL OF LAW

LECTURER J.K.BOSEK

ADMINISTRATIVE LAW. YEAR II (2010)

GENERAL OVERVIEW.

The theory of a responsible government underscores what administrative law is all about.
Administrative law presupposes that the executive arm of government would implement the law
in the letter and spirit and be responsible and accountable to its citizens. An administrative act
by a public body or official should emanate from an authority of law and ought to be exercised
within the precinct of the enabling provisions of law. According to Black’s Law Dictionary
administrative law is the branch of law governing the organization and administrative agencies
(including executive and independent agencies) and the relations of administrative agencies
and the legislature, the executive, the executive and the public. In their book, Judicial Review of
Administrative Actions in Kenya, P.L.O Lumumba and Kaluma describe Administrative laws as
‘that sphere of public law which concerns itself with the structure, powers, procedures and
control of administrative organs with public officials, and which specifies the procedure’. They
quote Dicey who in his book, Law of the Constitutions, 329-333 8th edition defines
Administrative Law as:
“ the law denoting the portion of a nation’s legal system which determines the legal
status and liabilities of all states officials, which defines rights and liabilities of private
individuals in their dealings with public officials, and which specifies the procedure by
which those rights and liabilities are enforced.”

Another writer, Sir Ivor Jennings in, The Law and the Constitution, 217 5th edition describes
administrative law in the following words:

‘Administrative law is the law relating to the administration. It determines

the organization, powers and duties of administrative authorities’.

And other writers, Wade and Phillips in their book Constitutional law, 1971, p 583
define administrative law as a branch of public law which is concerned with the
composition, powers, duties, rights and liabilities of various organs of government
which are engaged in administration.’

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In the article, Judicial Review in Kenya (Law Africa, 2006) PLO Lumumba described
Administrative Law as the law relating…. To the decisions of officers or organs of Central
Government or Public Authorities which may affect the rights or liberties of citizens and which
are enforceable in or recognized by courts of law’.

The above dictionary defines administration in the context of administrative law to be ;

(i) the management or performance of the executive duties of a government,
institution or business;
(ii) (ii) in public law, the practical management and direction of the executive
department and its agencies;
(iii) (iii) a judicial action in which a court undertakes the management and
distribution of property.

Montesquieu in L Espirit des Lois (1748), following attempts by Aristotle and Locke divided
powers of government into: (i) the legislative power; (ii) the executive power in matters
pertaining to law of the nations, and (iii) the power of judging ie legislative , executive and
judicial powers.

Administrative law is divided into three parts: (i) the statutes endowing agencies with powers
and establishing rules of substantive law relating to those powers; (ii) the body of agency-
made law, consisting of administrative rules, regulations, reports, opinions containing findings
of fact, and orders; and (iii) the legal principles governing the acts of public agencies.

What specially distinguishes administrative authorities from private individuals is the extent of
their powers. Access to court for judicial review of administrative acts is a significant aspect of
Administrative Law. An important aspect of administrative law is the control exercised by courts
or tribunals over those powers, especially the rights of citizens. The remedy of the citizen may
be left to the jurisdiction of the ordinary courts or the matter may be regulated by special rules
and adjudicated by special courts or administrative tribunals. A system of administrative courts
or tribunals is essential in administrative law. Courts in particular, continue to play a pivotal role
in shaping and inspiring the development of this field of law. The underlying principle of judicial
review is embodied on the doctrine of the Rule of Law. The pre eminent English jurist, Dicey
described the Rule of Law to include the principle that...not only….. no man is above the law

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but that is a different (thing) is that every man, whatever his rank or condition, is subject to the
ordinary tribunals.’

Administrative law underscores the principle that the Rule of Law do apply equally to
government officials. The central tenet is the idea that citizens should have effective access to
independent courts to ensure that administrative acts comply with legal obligations. The term
Rule of Law refers to the system of basic legal values, fundamental principles and assumption
guiding legal thinking in the jurisprudence of the courts and legal science.1

Access to courts for judicial review and other forms of litigation enables citizens to have their
rights protected through courts decisions. Litigations or the mere threat of it is potentially
powerful instrument in promoting the protection of rights. It can compel a violator to alter the
damaging behaviour and achieve the desired results sooner than latter. In advancing litigation
as an important component in promotion of human rights, Gutto argues that that there is
something that could be called ‘the radiating effects of the courts’ or ‘the centrifugal view of the
courts’. He explains this in the following words:
………By this is meant that, whether consciously or
unconsciously, court decisions have effects in the society that go well
beyond what we lawyers regard as “precedent”. In making judgement,
assuming that maximum publicity is given, the courts do impact on the
general public’s legal mentality and consciousness. The effect of a well
publicized judicial decision affects not only the immediate litigants but
also the wider society.2

In Kenya, the provisions of section 10 of the Judicature Act (CAP 8) empower the High Court to
exercise the jurisdiction over subordinate courts and administrative organs such as tribunals,
commission, councils etc of:
(i) Quashing their decisions ( Certiorari);
(ii) Stopping an unlawful act (Prohibition);
(iii) Requiring the performance of an act (Mandamus);

The High court also has jurisdiction generally:

(i) to declare legal position of litigants vis a vis their rights (declaration);
(ii) ordering monetary compensation;

1 Accessed at http:www.en.wikipedia.org/wiki/rUle of Law. Last visited 28th May 2009.

2 SBO Gutto

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 (iii) ordering maintenance of status qua (injunction)

B. Public / Governmental Power.

The executive or administrative function is the general and detailed carrying on of government
according to law. It includes the framing of policy and choice of the manner in which the law
may be made to render that policy possible. The constitutions of most countries, including
Kenya establishes power either directly or by making provisions that allows for enactment of
appropriate acts of parliament. The bulk of administrative actions are found in the acts of
parliament. Some provisions prescribe duties to be performed by the concerned authority in
certain and specific terms leaving nothing to the discretional judgment of the authority to which
power is donated. In other words, the authority concern acts in strict compliance with the law,
which imposes on it a definite duty. There are also provisions that give discretionary power to
the public bodies or officials. Use of discretion is particularly important to avoid rigidity in
decision making. The use of discretion allows the administrator (s) room to appreciate
circumstances of each particular case and to act appropriately. Unlike South Africa, Kenya
lacks a specific act of Parliament that provides comprehensive provisions essential in the
exercise of administrative functions. These are to be found in several sectoral acts of
parliament. According to section 6 of South Africa’s Administrative Justice Act, 1998, any
person may institute proceedings in a court or in a tribunal for judicial review of an
administrative action if-
(a) the administrator who took it-
(i) was not authorized to do so by the empowering provisions; or
(ii) acted under a delegation of power which was not authorized by the
empowering provisions; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provisions was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) an action was taken-
(i) for reason not authorized by the empowering provision;
(ii) for an ulterior purpose or motive;

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 (iii) because irrelevant considerations were taken into account or relevant
consideration were not considered;
(iv) because of the unauthorized or unwarranted dictate of another person or
body;
(v) in bad faith
(vi) arbitrarily or capriciously
(f) if the action itself-
(i)contravenes a law or is not authorized by the empowering provisions; or
(ii) is not rationally connected to-
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator;
(dd) the reasons given for it;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorized by the
empowering provision in pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable person could have
so exercised the power or perform the function; or
(i) the action is otherwise unconstitutional or unlawful.

Because of their attempt at protecting individual rights and freedoms, at times it is hard to
demarcate between administrative law from constitutional law. Bill of rights in most
constitutions guarantees fundamental rights and freedoms of individuals. Administrative law
provides the means in which such rights and freedoms are protected and promoted. Indeed a
convenient descriptive term for both constitutional law and administrative law is public law.
Many legal systems influenced by Roman law draw a clear distinction between public law and
private law. Under English law, the rights and remedies of parties may depend on whether a
claim raises a question of public law or private law.

JUDICIAL REVIEW.

Judicial Review is the law concerning judicial (court’s) control of the powers, functions and
procedures of administrative authorities. The steady growth of administrative powers and

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development in the fundamental rights and liberties of individual or citizens have increased the
relevance of judicial review. With this development, the state has likewise assumed more and
more positive role in matters which directly affects the citizens’ livelihood and general welfare.
An administrative law writer is right when he summarizes state functions particularly in a social
welfare system as follows:
…….the state today pervades every aspect of human life; it runs buses,
railways and postal services; it undertakes social-economic planning,
improves slums, plans urban and rural life, looks after health, societal
morals and education of the people, generates electricity, works mines
and operate key and important industries; act as an active instrument of
social economic policy, regulates individual life and freedom to a large
extent; benefits its citizens and imposes social controls and regulations
over private enterprise3

Even where the state is not actively involved in any of the aforementioned functions it actively
regulates them. This is done by issuance of permits and licences or through policing to ensure
adherence to the rules and regulations governing a particular business activity. Indeed we are
living at a time when the executive has become the all pervading feature of societal life.
Administrators’ actions and decisions virtually affect people `all the time in various ways,
circumstances and situations. These are manifests in several ways such as:
(i) High school students being affected by the decisions of head teachers and
Board of Governors;
(ii) Villagers being affected by the decisions of Chiefs and others officers within
provincial administrations eg District Officers (D.Os) and District
Commissioners (DCs);
(iii) Urban residents being affected by decisions of their respective local authority
eg city council or municipal councils;
(iv) University students being affected by the decisions and actions of the
University’s council, senate or committees and administrators such as Vice
Chancellor;
(v) Businessman being affected by trade officers who issue licences or local
authorities who issue permits etc;
(vi) Manufacturers who are affected by quality control measures formulated by the
Kenya Bureau of Standards (KBS);

3M P Jain and S Jain, Principles of Administrative Law, 4th Ed. 1989, NM Tripathi Private Ltd, Bombay. Quoted by
PLO Lumumba in Judicial Review of Administrative Actions in Kenya a p3

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 (vii) Investors in real estate and other forms of huge investments that are required
to abide by rules and regulations made and enforced by National
Environmental Authority (NEMA).
(viii) Voters and politicians are all affected by the decisions, practices and
procedures adopted by electoral body - the Interim Independent Electoral
Commission (IIEC) the successor of the disbanded Electoral Commission of
Kenya (ECK).
(ix) Employees eg teachers who are affected by decisions of the Teachers Service
Commission and Civil servants employed by the Public Service Commission.
(x) Athletes who are affected by decisions of the Ministry of Sport and the Athletic
Kenya (AK).
(xi) Advocates of the High Court of Kenya who must abide by the rules made by
the Law Society of Kenya in respect to renewing of practicing certificate and
matters related to the practice of law in the country etc.
(xii) Rules and regulation on tax remittance made by the Kenya Revenue Authority
(KRA);
(xiii) Regulations made by the Minister in charge of Finance or the Central Bank of
Kenya touching on banking services in the country.
(xiv)

The list can be quite long and probably in exhaustive. This only serve in making us understand
that administrative decisions and actions manifest in several ways. In their exercise of power,
administrative agencies some times acts against the spirit and the letter of the enabling law.
The words of the French scholar, Montesquieu remains true. In one of his masterpieces he
stated that, ‘power corrupts and absolute power corruptly. Where there is widespread
abuse of power, citizens suffer. It is therefore necessary to put in place appropriate judicial
measures that ensure that the sweeping powers vested on administrators can be controlled.
Wade correctly stated that public authorities must be prevented from running amok.
It has became increasingly necessary that executive arm of government do perform other
functions which traditionally belonged to other branches of government ie the legislature and
the judiciary. It exercises legislative power and originates a plethora of rules, bye laws, orders
and regulations. It is able to do these pursuant to delegated authority, normally contained in the
enabling Act. Such delegation gives it the power to come up with subsidiary or at times referred
to as subordinate legislation. At times the executive assumes adjudicative powers over

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disputes through tribunals, commissions and other quasi- judicial bodies. Tribunals are
diversified in structure, jurisdiction, procedures and powers and pronounce binding decisions
like ordinary courts. Examples of tribunals in Kenya today include and are not limited to the
following:
(i) Water Tribunals
(ii) Rent Tribunals
(iii) Co-operative Tribunals
(iv) Land Tribunals

Delegation emanates from the fact that the legislature lacks time, techniques and expertise to
handle the mass of legislative details required in the governance of state. What the national
legislature does is to lay down the broad and major policy areas leaving the finer details to the
administrative organs to deal with through subordinate `legislation.

As stated in the earlier class the High Court exercise jurisdiction and award a number of
remedies. In this discussion we shall focus only on three of such: Certiorari; Prohibition and
Mandamus. The court seek to ensure that administrative authorities do not act ultra vires i.e
exceed their powers. Of significant also is to ensure that even while acting intra vires they
exercise powers prudently, reasonably, fairly and in good faith. Executive actions are supposed
to be exercised with due consideration to relevant factors, prescribed procedures and
adherence to the rules of natural justice. Judicial review is a `special jurisdiction vested in the
court as` the ultimate guarantor of legality to scrutinize actions and decisions of administrative
officers, institutions, bodies and tribunals. It is a mechanism of ensuring that the powers
donated to them are exercised within the ordained legal bounds.

CERTIORARI

English courts began issuing the writs of certiorari way back in the 13 th century. It emanated as
a prerogative of the King. The King’s Bench was recognized as England highest court with
supervisory powers over other courts. During this tentative stage the writs did not issue to
litigants ex debito justitiae (as of right) but as a prerogative writ in the sense that the King,
acting through his judges, decided in each instance that certiorari should issue so as an
alleged injustice could be dealt with.

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The significance of this remedy lies in the prevention of abuse. Its purposes are to ensure that
the individual is given fair treatment by the authority to which he/she is subjected. When issued
the order of mandamus brings up to the court the challenged decision of an inferior court,
tribunal or a public authority to be quashed. The court issues an order of certiorari when it is
convinced that the decision or administrative action under attack was reached without or in
excess of jurisdiction or in breach of the rules of natural justice or contrary to the law. This
remedy can only be made to challenge a past act. It is a challenge to the manner in which a
decision or an administrative action has been arrived at. The court stated the following in the
case of Captain Geoffrey Kujoga Murungi v. A G:
“Certiorari deals with decisions already made- so that when issued
an order of certiorari brings up into this court a decision of an inferior
court, tribunal or a public authority to be quashed. Such an order
(certiorari) can only be issued where the court considers that the
decision under attack was reached without or in excess of
jurisdiction or breach of the rules of natural justice; or contrary to
law. Thus an order of certiorari is not a restraining order.”

When issued, the order restores the status qua (situation that existed before the decision was
made). This position was underscored by the Court of Appeal in the case of Central
Organisation of Trade Unions v. Benjamin Nzioka and 5 others:
“The quashing of Registrar’s decision simply meant as we have already
stated that the status qua that existed before the bad decision of the
Registrar was made on 5th July, 1993 is revived and if there is any
formal act that is required on the part of the Registrar to bring this about,
he should have done so at once, if he has not, then he must do so now
or risk the censure of this court for contemptuous behaviour.

In the case of Robert Musili Mwenzwa V. Minister of Land and Settlement and Another4 the
court quashed the decision of the Minister made pursuant to the provisions of the Land
Adjudication Act, Cap 284. Section 29 (1) of the said legislation provides…and the Minister
shall determine the appeal and make such order thereon as he thinks just and the order
shall be final.” The court held that:
…….the District Commissioner, sitting as Minister’s appeal tribunal
from the Land Adjudication Officer’s Objection tribunal, needed to
consider all the grounds of appeal filed by the appealing party in
reaching his decision. That would mean as I understand it, that this
court will interfere with a finding of the District Commissioner who

4 Unreported Machakos High Court Civil Case No 183 of 2004

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 failed to consider such grounds of appeal by way of the order of
certiorari, despite the fact that such a finding is said to be final. In
fact in RE Marles Application (1958) E.A 153, it was held that the
fact that such a finding is said to be final does not preclude this
court the issuing of certiorari, for alleged excesses or want of
jurisdiction
……….in this case before me, the District Commissioner of Mwingi,
sitting as the Minister’s Land Tribunal, not only failed to consider
several grounds of appeal filed by the appellant (Ex parte
Applicant), but also failed to give the said applicant a right to be
heard when the Tribunal visited the piece of land in dispute in his
absence. The said appellant has approached this court seeking a
remedy of Certiorari to rectify the situation. There is no doubt that
the Ex parte Applicant has no other recourse as the decision of the
Minister through the District Commissioner is said to be final. In my
understanding, this court is the custodian of the rights of those
under its jurisdiction. The court must therefore in my view, ensure
that justice is done to those who come before it regardless of
whether or not that interferes with the management of the executive
arm of government. That would be the only remedy open to the
applicant herein and others like him, especially on the face of a
provision of law that express finality such as section 29 (1) of the
Land Adjudication Act and other similar provisions. That is the only
way left by such a provision for justice to be done and be seen to be
done.
……. For this reasons this court is persuaded to allow this
application. The decision of the Minister made by the District
Commissioner, Mwingi in Ministers Land Appeal No 173 of 2001
between Robert Musili Mwenzwa and Maluli Mwenzwa, made
and dated 14th July 2004 is hereby recalled to this court and is
hereby quashed. Further orders are that the said Minister’s
Appeal shall be heard afresh by Mwingi District Commissioner,
who nevertheless shall not be the same person who heard the
appeal on 14th July 2004’

The court’s order inter alia, underscored the order certiorari as an appropriate remedy in a
situation where injustice had been occasioned. The aggrieved party’s position is helpless in the
face of an administrator whose action ignored due processes and the clear principles of natural
justice. Court was alive to the hardship arising from the injustices occasioned by an
administrator whose decision had glaring procedural faults.

The court allowed itself to be guided by the court of Appeal decision wherein Hancox JA stated
at page 565 in reference to the District Commissioner sitting as Minister’s appeal tribunal:
‘ …Even if he was not a court (as he expressed himself to be), he was still
amenable to an order of Certiorari in his appellate capacity, as he was obliged to

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 reach a decision after considering the grounds of appeal and the proceedings before
the adjudication officer’

The provisions of the Judicature Act, CAP 8 laws of Kenya stipulate that the decision being
challenged must be presented to the High Court within 6 months from the date made.
Provisions of Order 53 echo the said position. A litigant seeking an order of certiorari must
attach a copy of the document evidencing a decision or state reasons where such a document
can not be presented.

PROHIBITION

Unlike certiorari this remedy is prospective. Certiorari is retrospective in application. Prohibition

developed the same time as certiorari. Its effectiveness lies in restraining inferior tribunal from
assuming jurisdiction where it has none or doing what it is not empowered to do.

The order of prohibition is characterized in Halsbury’s Laws of England as follows:….. it is an

order from the High Court directed to an inferior tribunal or body which forbids that tribunal or
body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws
of the land. It lies not only for excess of jurisdiction or absence of it for also for a departure from
the rules of natural justice. It does not, however, lie to correct thee course, practice or
procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.

Prohibition is neither a means of reviewing errors that have already occurred nor a means of
enquiring into past irregularities. It looks into the future and is meant to stop an event and is
totally unavailable to a decision already made. This position was emphasized by the court of
Appeal in Kenya National Examination Council. V. Republic Ex parte Geoffrey Gathenji Njoroge
and Nine Others.5
Where a decision has been made, whether in excess or lack of jurisdiction or
whether in violation of the rules of natural justice, an order of prohibition would not
be efficacious against the decision so made. Prohibition can not quash decision
which has already been made; it can only prevent the making of a contemplated
decision

5 Civil Application No. 266 of 1996 (unreported)

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MANDAMUS

The term mandamus comes from the Latin word mandare which literally means “we command”.
The order is normally a command from the High Court to an inferior court or tribunal or
executive official directing that it/he/she performs a duty imposed by the law. Halsbury’s Laws
of England provides the following definition:

The order of mandamus is of most extensive remedial nature and is in the form of a
command issuing from the High Court of Justice directed to any person,
corporation or inferior tribunal requiring him or them to do some particular thing
therein specified which appertains to his or their office and is of the nature of a
public duty. Its purpose is to remedy the defects of justice and accordingly it will
issue to the end that justice may be done, in all cases where there is a specific
legal right, and it may issue in cases where although there is an alternative
remedy, yet mode of redress is not convenient, beneficial and effectual.

This remedy is available when the executive agencies fail to carry on a decision or perform
certain positive duty imposed on it by the law. The duty need not necessary be a statutory one.
It may arise from legitimate public expectations in due performance of the task in questions.

The court will issue an order of mandamus once it is satisfied that the applicant has a right to
expect the duty to be performed and has suffered detriment as a consequence.

LEGAL BASIS OF PREROGATIVE ORDERS /JUDICIAL REVIEW

Law Reform Act

Civil Procedure Act
Constitution

GROUNDS OF JUDICIAL REVIEW

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By looking at the grounds of judicial review, we will be studying the circumstances which an
aggrieved person may petition the High Court for Judicial Review. We will be looking at cases
of failure to conform to one or more of the requirements known in law

The High Court will intervene in public administration if one or more of the following
circumstances i.e. courts of law will review actions of admin bodies in one or more of the
following circumstances

When a body acts ultra vires

When there is jurisdictional error
When there is an error of law
When there is an error of fact
When there is abuse o power
When irrelevant considerations governing the making of decision are considered
and relevant ones are not considered
When there is unfair hearing
When there is procedural flaw
When there is irrationality/ absurdity
When a public official or body acts in bad faith
When there is breach of principles of natural justice
There are overlaps in these grounds e.g. what amounts to procedural flaw may act at the
same time amount to ultra vires. In actual practice any one of the grounds will entitle an
aggrieved party to apply for judicial review and in actual practice circumstances
accessioning judicial review will involve one or more of those grounds. We don’t have to
have all the 12 circumstances to apply for judicial review any one of the grounds will suffice
plus the list is not exhaustive. Further developments on a case by case may add more
grounds

1. DOCTRINE OF ULTRA VIRES

The doctrine of ultra vires is a legal doctrine.

In English Legal System control of administrative agencies is based on the doctrine of ultra
vires. This may mean a number of things but surely it does mean in the English legal

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system the basic doctrine governing judicial intervention in administrative function is the
doctrine of ultra vires. It means simply that this is the doctrine on the basis of which the
courts will interfere or intervene in matters of public administration. Ordinarily courts would
not interfere.

WHAT IS ULTRA VIRES

It simply means beyond powers so that if ultra vires is the basis in which courts will
interfere or intervene on matters of public administration when administrative bodies have
acted beyond the powers that have been conferred on them by the legislature.

The essence of this doctrine is that administrative bodies must act within the
powers granted them by statutes.
They must also act within the requirements of common law

Administrative bodies must act only within the powers that they have been given by the
statutes. They must also recognize the limits imposed on them by the statutes. The
exercise of powers by administrative bodies often affects the rights of citizens and for this
reason it is necessary that these powers be exercised only with accordance with the
statute granting the power so that the people do not suffer. Limits are placed by statutes to
ensure that powers conferred to administrative bodies do not end up causing suffering to
citizens.

For these reasons any act of a public administrative body that is outside the limit of law has
no legal validity because it is ultra vires, When we refer to law we mean firstly common law,
statute law and beyond that we have the Constitution and they would have to act within all
these and within any other regulations that have been put in place.

The term ultra vires can cover a wide range of actions undertaken in excess of the law or in
excess of the powers granted. For example a body acts ultra vires if that body does
something that it does not have authority to do.

Once case is where an administrative body does something that is not authorized to do.
The second example is where an administrative body in the process of exercising the

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powers it abuses those powers, which amounts to acting ultra vires. There are also cases
where bodies act ultra vires because in the cause of exercising those duties that are
authorized, they have failed to follow prescribed procedure. If you consider these
instances, a person in the process of doing the authorized things abuses the powers, or
where they are exercising the conferred powers but they fail to observe procedure. One is
substantive ultra vires and procedural ultra vires.

Substantive ultra vires

Substantive ultra vires is acting in excess of powers with regard to matters of substance.
This would include for example acting beyond what is authorized. What is authorized is a
matter of substance. The service that is authorized is a matter of substance. Substantive
ultra vires includes the following cases.
Exercising power in excess of statutory limits
Acting in excess of jurisdiction
Breach of the principles of natural justice, in this case failure to give notice of
hearing to a concerned party for example would amount to breach of principles of
natural justice and that falls under substantive ultra vires.

Procedural Ultra Vires

In addition to substantive ultra vires there are cases where administrative bodies may go
beyond their powers on matters of procedures. This is what is described as procedural
ultra vires. This is where administrative bodies fail to follow prescribed procedure. They
include cases where an error occurs in the following procedure.

Whereas we do have procedure prescribed in statutes, there are also maters of procedure
that are not in the statutes but they are applicable under common law and this is where we
find the procedural requirements that fall under the principles of natural justice. Person has
to be given notice of a hearing of their case; this is one of principles of natural justice. This
is in order that the person be made aware of what is going on and be given an opportunity
to raise any objection that he/she may have. It is important that one gets a chance to
defend himself/herself.

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Courts are enjoined to use or apply ultra vires doctrine in administrative cases to invalidate
actions of public bodies. Thus if a body has done something that amounts to procedural
vires, the court will be prepared to apply the doctrine of ultra vires to invalidate that action.

The effect of finding that an act or decision is ultra vires is that it is invalidated. It means
that the court will declare that act or decision null and void. The net effect of such an order
is to render an administrative decision to be of no consequences. It would make it appear
as if it had never been made in the first place. A number of decided cases helps in
illustrating this point.

White and Collins vs. Minister of Health (1939) 2 KB 838

This English case concerns the exercise of power of compulsory purchase of land. In this
case a housing authority was granted power under the Housing Act of 1936 to acquire land
compulsory for housing ‘provided that land did not form part of any park, garden or
pleasure ground.’ The Housing Authority went a head and acquires land or purported to
acquire land that was a park. After it acquired this land, it sought and obtained confirmation
of its acquisition from the Minister of Health (the one responsible for giving confirmation of
such services). The parties brought a suit seeking to have the purchase order invalidated
on the grounds that the order to purchase this land was ultra vires. The purchase itself was
also said to be ultra vires because the land was a park and there was a statutory restriction
on the purchase of any land that was a park. The court quashed the order for purchase as
well as the purchase declaring it null and void. (The court order that quashes is certiorari).

Sheikh Brothers Ltd vs. Hotels Authority (1940) KLR 23

The Hotels Authority, the defendant in this case was empowered by regulation to fix or vary
the percentage of accommodation rates should be available to monthly hotel residents as it
consider reasonable. At a time when the percentage for monthly residents had been 85%
the Authority fixed the percentage at 100%. In other words the Authority fixed the
percentage at 100% instead of the previous 85%. The Hotel owners sought to have the
decision set a side by certiorari. The court held that the authority had clearly exceeded its
powers. The wording in the regulations the court said, in allowing a portion of

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accommodation rates fixed for monthly residents and other residents. The fixing of the
percentage at 100% did away with the element of proportion (Substantive ultra vires).

Note that in some cases courts will interpret the relevant statues to find out if the particular
act complained of is provided for.

2. UNREASONABLENESS

One of the things the court considered, in determining unreasonableness is whether a

public body has considered or taken into account any matter that it ought not to take into
account. Another thing that the court will consider is whether a public body has disregarded
any matter that it ought to take into account.

RV Ealing London Borough Council Exparte Times Newspapers Ltd (1986) LGR 316
(Local Government Reports)

In this case the council was held to be unreasonable in refusing to provide certain
Newspapers in their libraries because the council did not agree with the Newspapers
proprietors on political grounds. The court held that the council was unreasonable in
refusing to provide their libraries with certain Newspapers

An example of matter that amounts to unreasonableness

Associates Provincial Picture Houses Ltd v. Wednesbury Corporation (1948)1 K.B

223

The Sunday Entertainment Act of 1932 empowered local authorities to grant licenses for
cinematograph performances and to allow and license a place to be opened and used for
cinematograph performances subject to such conditions as the authority thinks fit to
impose. The local authority granted the plaintiff licences for Sunday performance subject
to one condition than no children under 15 years of age should be permitted to Sunday
Performance with or without an adult.

17
The condition was attacked as being void for unreasonableness. The court of Appeal held
that it was valid.

The court held in an action for declaration that this condition was reasonable, that the local
authority had not acted unreasonably. In imposing their condition, the licensing authority
had not acted ultra vires. The court then went on to state “what a court would be looking at
when faced unreasonableness is whether.

Matters that need to be taken into account have been taken into account;
Omitted matters that ought to be considered have been considered.

3. JURISDICTIONAL ERROR

Scope or area in which a body is allowed to act, includes territorial limits. Where there is
error it means;
That an administrative agency has acted without jurisdiction. They have
acted over matters which they have no authority to act.
They have a body within jurisdiction but have gone beyond or exceeded
this can happen.
When a body erroneously exercises power or authority over a
matter that is outside of
its territorial limits
Where a body legislates over a matter that falls outside of the
matters it is authorized to legislate over.
Where an administrative body declines to exercise jurisdiction
to hear and decide a case or to legislate over a matter over which it
has jurisdiction to hear or decide or legislate over; (Authority to do
something but decline to do it)
It may also arise when a body fails to administer a function or
to carry out a duty that it has the statutory authority to administer or
to carry out.

18
In case any one of these things occurs and person is aggrieved, as a result the person can
apply to the High Court for Judicial Review on the ground that a public body has committed
jurisdictional error.

Anisminic Ltd V Foreign Compensation Commission (1969) 2 AC147

The dispute in this case arose from the agreement between the Governments of Egypt and
the United Kingdom that a sum be paid by Egypt to provide compensation for those British
companies and persons whose property had been lost or damaged in the 1956 Suez
incident, and subsequent expropriations of distribution of compensation to the Foreign
Compensation Commission and section 4(4) of the Foreign Compensation Act provided
that “The determination by the Commission of any application made to them under this Act
shall not be called into question in any court of law.” The statutory instrument defining the
powers of the Commission in relation to application arising out of the Suez incident
contained complicated and obscure provisions as to the nationality of applicants for
compensation. The object was to ensure that only those of British Nationality received
compensation, be they the original owners of the property lost or damaged, or then sold to
an Egyptian organization. The Commission interpreted the statutory statement defining
proper applicants for compensation as excluding Anisminic because their successor in title
was of Egyptian nationality.

The House of Lords held that the Commission had misconstrued the instrument because
where the original owners of the property claimed he was British the nationality of his
successor in title was irrelevant. The Commission had considered a matter totally irrelevant
to the question which they had been granted jurisdiction to determine. They had embarked
on an enquiry beyond the limited inquiry directed by Parliament. Accordingly they had
exceeded their jurisdiction and their purported determination was invalid and not protected
by the provision preventing proper determination of the Commission being questioned in
courts.

4. ERROR OF LAW

An error of law is a condition or an act of ignorance, negligence or imprudent deviation or

departure from the law.

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Ignorant departure would include a situation where an administration officials is ignorant of
the law. If the minister of local government for local example has no idea that he cannot
sack an elected mayor, this is an act of ignorance. Negligence would be where an admin
body fails to do what the law provides and in this case they have failed to do what the law
provides.

This can result from a number of things

Failure to ascertain what the law is on a particular matter or what the laws say
about a particular matter
It may also occurs as a result of misconstruction of the laws
Misinterpretation of the law
Blatant disregard of the law
Misunderstanding of the law or
Misdirection on the law (this involves a situation where an admin body seeks
direction on the law) i.e. if the head of civil service seeks direction from the AG or
from the Chief Justice or Minister fir Justice and Constitutional Affairs and they
have given direction that are not correct we may say that this is a misdirection

In all these cases, it is usually said that there is an error of law on the face of the record. An
error of the law on face of the record is an error which may be ascertained by an
examination of the record of proceedings without recourse to any evidence. Just by looking
at the record of proceedings, one can tell that the law was not followed.
The results of error of law is that the decision made in error, all the acts done in error of law
are invalidated upon judicial review because they are illegal and therefore upon judicial
review are invalidated.

R v Northumberland Compensation Appeals Tribunal ex parte Shaw (1952) 1 KB 338

In this case a former employee of an administrative body claimed compensation on

termination of his employment. Under the applicable regulations the tribunal was required
to assess compensation payable by aggregating two periods of employment i.e. the law
was saying in computing compensation would have to aggregate two periods of
employment, they would take into account only the second period. Upon application for
judicial review this decision was quashed because of the error of law that had been

20
committed. The court found that this amounted to an error on the face of the record and the
decision was quashed. The court issued an order of certiorari. The main remedy where
there is an error of law or an error on the face of the record is certiorari. It involves removal
of proceedings to the High Court so they can be quashed.

Kenneth Matiba V The Attorney General High Court Misc. Civil App. 790 of 1993

In this case the court considered a decision made by the rules committee of the High Court
regarding application for leave to apply for judicial review. The rules committee of the High
Court is empowered to make rules for judicial review and these rules must be in conformity
with enabling statute which is the Law Reform Act 26. By Legal Notice No. 164 of 1992, the
committee purported to amend order 53 of the Civil procedure Rules by doing away with
the requirements of leave as a condition precedent to applying for judicial review. In doing
so they failed to adhere to section 8 and 9 of the Law reform Act. The court ruled that the
act of the rules committee was null and would to the extend that it was not in conformity
with the enabling statute.

5. ERROR OF FACT

Please note that the facts are integral to the making of decision. The validity of a decision
depends on the proper appreciation and interpretation of facts.

An error of fact occurs where there has been an act or condition of ignorance, negligence
or imprudent deviation from facts. This may occur from a number of facts
Where facts have not been properly appreciates
Where facts have not been properly interpreted
Where there is an incorrect finding of facts
Where irrational conclusion are made from facts
Where a decision is made without giving regard to the factual circumstances of
the case at hand
The effect of error of facts is that it renders a decision null and void. Where the existence or
non-existence of a fact is not certain, it will be left to the judgment and discretion of he
public body concerned

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6. ABUSE OF POWER

Abuse of power included cases where the power and authority given public bodies have
Where power has been put to a wrong or improper use
Where power has been used so as to injure or damage
Where power has been misused
Where power has been used corruptly

If the court finds that an administrative body has abused its power or his power, any act
done or decision made will be invalidated.

7. IMPROPER EXERCISE OF DISCRETION

An administrative body has the authority to exercise discretion whenever the limits of
his/her authority leave him to decide between two or more caused of action or inaction.
There will have to be a statutory authorization to do something but the statutory provisions
do not completely specify what one is authorized to do. The exercise of discretion is an
important aid to the exercise of statutory powers.

Whenever circumstances give rise to the exercise of discretion:

Discretion must be exercised properly
Discretion must be exercised reasonably
Discretion must be exercised by the proper authority only and not by a
delegate
Discretion must be exercised without restraint.

Certain circumstances will give rise to improper exercise of discretion which included
Exercising discretion for improper motive
Where power to exercise discretion is delegated to a person who is not
charged with the responsibility in question
Where discretion is exercised so as to serve self-interest.

Fernandes V, Kericho Liquor Licensing Court (1968) E.A 640

22
The case concerns the authority given to Kericho Liquor Licensing Court to grant licenses.
In this case they decided that they were only going to give liquor licenses to Africans. The
court ruled that that the administrative body had exercised their discretion improperly by
deciding to issue licenses only to Africans

8. IRRELEVANCY

Irrelevancy is one of the grounds of judicial review. What is irrelevancy?

Irrelevancy occurs in two situations:
Where a decision making body considered a matter which it ought not to
consider in arriving at a decision e.g. if on the basis of a gender or race a license is
denied.
Where an administrative body disregards something, which ought to consider
in making a decision

Secretary of State for Education and Science V. Tameside Metropolitan Borough

Council (1977) A.C. 1024

In this case the court stated that in its decision in the process of review it is for a court of
law to establish whether in reaching the unfavorable decision complained of a public body
has taken into consideration matters which upon the true construction of the act at issue
ought not to have been considered and excluded from consideration matters that were
relevant to what had be considered.

Wenesdbury Case

9. BIAS

It is a predictable tendency to favour one outcome, one outlook or one person against
another. It involves acting particularly i.e. acting favourably to one side. Whenever an
allegation of bias is made, a reviewing court will investigate and evaluate whether there is a
tendency of one side to favour on person.

There are certain principles that will guide the court in determining the presence of bias

23
a) The real likelihood of bias

Circumstances in which the court will conclude that there was a real likelihood of bias
include cases where the decision maker has an interest in the matter under consideration.
Interest may be pecuniary, interest may also be adverse (adverse interest suffices)

b) The Real Danger Test

This is another of the tests that the court will apply in determining the presence or absence
of bias. The consideration is whether there is a real danger that a public official or body
participation in a decision will be influenced by a personal interest in the outcome of a
case. The question to ask is how significant the interest is and how closely or remotely
related to the issue it is. In the real danger test the consideration is whether there is a real
danger that an official participating in a decision will be influenced by a pecuniary interest
and how close is it to the matter decided or how remote.

RV Gough (1993) A.C 646

c) Actual Bias
There are cases where in the absence of the real likelihood of bias and in the absence of
pecuniary and other interest, and in the absence of the real danger of partiality, bias does
actually occur and in this situation the test is whether there was actual bias. In cases where
there is a likelihood of bias, for example in cases where members of the decision making
body have a pecuniary interest in the matter to be considered, they must disqualify
themselves from taking part in making that decision. If they do not, this will rise to bias and
the decision made can be invalidated upon review. Invalidation is by quashing the decision.

10. UNFAIR HEARING

Administrative bodies are bound to give a fair and proper hearing to those who come to
them. Often the statutes will prescribe the procedure for hearing, indicating how concerned

24
parties are to be heard. In such statutory provisions the duty to grant a fair and proper
hearing may be implied. In the absence of statutory provisions setting forth procedure for
hearing common law rules regarding fair and proper hearing will apply.

Where a public body makes a decision without due regard to prescribed procedure or
without due regard to common law principles of fair hearing, an aggrieved party will be
entitled to petition the court for review.

Neil V. North Antrim Magistrate’s Court (1992) WLB 1220

This case suggests that even if a right decision is arrived at a party may still petition the
court if some procedural flaw occurred occasioning damage. This means that if a party had
a case and even if he argues that case as cogently as he could, failure to grant a fair
hearing will bring the court to invalidate that decision no matter how bad the case was. A
person must have a chance to be heard.

Failure to give a fair hearing will result in a decision being declared null and void.

11. IRRATIONALITY

Irrationality is derived from the word irrational. This means that if s decision making body
or an administrative body acts irrationally, whatever that body acts irrationally or whether
decision it makes irrationally can be invalidated upon judicial review, Irrationally means
conduct beyond the range of response reasonably open to an administrative body. In
determining whether a particular act or decision is irrational, a reviewing court will consider
whether a public body has done something which a reasonable body with the same
function and confronted with the same circumstances could not do. This is an objective
test.

Associated provincial picture Houses V. Wednesbury Corporation (1948) 1 KB 223

RV. Earling London Borough Council ex parte Times Newspapers Ltd (1986) 85 LGR
316

25
In the Earling case, there was a clear case of abuse of power prompted by an irrelevant
consideration where some local authorities refused to provide certain newspapers in their
public libraries, Their reasons for the ban was that they were politically hostile to the
newspapers; proprietors, who had dismissed many of their workers when they went on
strike, The court held that the ulterior political object of the local authorities was irrelevant
to their statutory duty to provide a comprehensive and efficient library service.

12. BAD FAITH (MALA FIDES)

If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather
hard to define bad faith but it covers a wide range of circumstances including malice,
corruption, fraud, hatred and similar things. It also includes cases of vindictiveness.

Please note that breach of fundamental rights could also give rise to judicial review

13. BREACH OF PRINCIPLES OF NATURAL JUSTICE

Breach of principles of natural justice will give rise to judicial review.

Principles of natural justice

Natural justice is being in accordance with or determined by nature. Action based on the
inherent sense of right and wrong.

JUST
Means just, morally upright, correct, proper, good, merited deserved etc

From the definition you see that justice is the maintenance administration, provision or
observance of what is just, good, correct, proper merited or deserved.

26
With these two definitions of natural and justice, natural justice is the administration
maintenance, provision or observance of what is just right, proper, correct, morally upright,
merited or deserved by virtue of the inherent nature of a person or based on the inherent
sense of right and wrong.

These principles of natural justice are rules governing procedure and conduct of
administrative bodies.They were developed by the courts in England and imported into
Kenya as part of common law principles

Principles of natural justice are implied so you will not see them expresses in a statute;
they are supposed to apply in every case a statute expressly state that they will not apply.

Other grounds of judicial review such as error of law, are grounds in which courts might be
said to be upholding administrative authorities within the boundaries of their powers
conferred on them by statutes. Unlike such grounds, principles of natural justice are
applicable in the absence of statutory provisions authorizing their applicability or their
observance. Unless natural justice is expressly or impliedly excluded by statutory
provisions these principles are always to be implied. It is to be implied that parliament has
authorized the applicability and observance of the principles of natural justice in every
case.

Fairmount Investment Ltd Vs. Secretary of State (1976) 2 AER 865

To which bodies do the principles of natural justice apply?

In Kenya these principles apply so long as a public body has power to determine a
question affecting a person’s rights in addition to questions affecting people’s right. The
principles apply to bodies in every case involving a question affecting a person’s interest..
Wherever there is a right there is an interest but not vice versa. Interest may include other
things. Interest may be pecuniary interest or something else and does not necessarily have
to be a right

Mirugi Kariuki V. The Attorney General. Civil Appeal No. 70 of 1991

27
The court of appeal held that the mere fact that the exercise of discretion by a decision
making body affects the legal rights or interests of a person makes the principles of natural
applicable. (It can be a right or some other or some other interests)

These principles apply to administrative bodies that are judicial, quasi-judicial legislative or
administrative.

The Principles /Rules

Broadly the principles are two

(i) Nemo judex in causa sua- which means that procedures must be free from bias; and

(ii) Audi Alteram partem – which means that no person should be condemned, unheard
That is a person should not be denied an opportunity to be heard
These two principles have been broken down into a number of principles or rules which are
as follows:
Rules against Bias
The right to be heard
Prior Notice
Opportunity to be heard
Disclosure of information
Adjournment
Cross examination
Giving reasons
Legal Representation

1. Rule Against Bias

For bias please see above notes. In summary there can be bias when
There is some direct interest in the matter to be adjudicated e.g. pecuniary
interest
Where short of a direct interest there is a reasonable appearance or
likelihood of bias
Where there is actual bias

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RV Hendon Rural District Council Ex-parte Chorley (1933) 2 KB 696

In this case the court quashed the decision of a rural district council allowing some
residential property in Hendon to be converted into a garage and restaurant because one
of the councilors who was present at the meeting which approved the application to
convert the premises was an Estate Agent who was at the same time acting for the
owners of the properties. The Court issued Certiorari to quash the decision of the council
on the ground that the agent’s interest in the business disqualified him from taking part in
the council’s consideration of the matter.

Concerning likelihood of bias, the case is

Metropolitan Properties Ltd Vs. Lannon (1968) 3 ALL E R 304

The court said; “in considering whether there was a real likelihood of bias, the court does
not look at the mind of the justice himself or at the mind of the Chairman of the tribunal who
sits in a judicial or quasi judicial capacity. The Court looks at the impression which would
be given to other people. Even if he was as impartial as he could be nevertheless, if right
minded people would think that in the circumstances there was a real likelihood of bias on
his part then he should not sit. And if he does sit his decision cannot stand. Surmises or
conjecture is not enough there must be circumstances from which a reasonable man would
think it likely or probable that it would or did favour one side unfairly at the expense of the
other.”

The court quashed the decision of a rent assessment committee reducing rent of a certain
flat because the chairman of the rent assessment committee lived with his father in those
flats.

2. Right to be Heard
This is simply that a concerned person must be given a right to be heard. If an
administrative body fails to give a concerned person the right to be heard, whatever
decision it makes will invalidated upon review. The case that illustrates the points is the
case of

29
David Onyango Oloo V. The Attorney General Appeal No. 152 of 1986

In this case the Commissioner of Prisons purported to deprive Onyango Oloo his sentence
remission to which he was entitled under the Prisons Act without giving him an opportunity
to be heard. Quashing the decision, Justice Nyarangi stated:”there is a presumption in the
interpretation of statutes that the rules of natural justice will apply. In this case the rule in
question was the one concerning the right to be heard.”

3. Prior Notice

This Rule requires that adequate prior notice be given a person of any charge or allegation.
It simply means that if an admin body makes a charge it has to give a person against
whom allegations have been made adequate notice before a decision is made. Prior notice
must be served on the relevant party. The notice must contain sufficient detailed to enable
the person concerned to know the substance of any charge, allegation or action to be
taken against him.

Again the case of David Onyango Oloo applies here. IN that the court also stated “The
Commissioner of Prisons at the very least ought to have done the following act.”
Inform the Appellant in writing in a language the Appellant understands the
disciplinary offence he is alleged to have committed and the particulars of the
offences
Afford the Appellant an opportunity to be heard in prison and to fix reasonable
time within which the appellant must submit his written answer.

4. Opportunity to be Heard

There is no settled rule as to whether hearing should be oral or written but in all cases one
must be afforded a chance to present his/her case whether oral or written.

Board of Education V. Rice (1911) A179

30
5. Disclosure of Information

A concerned party must be given all information which the decision maker will rely on to
make his judgment. This rule requires that all allegations and reports bearing on a person’s
case must be disclosed to that person. Failure to do so is fatal to a decision.

Ridge V, Baldwin (1964) A.C 40*

The House of Lords in this case held that the Chief Constable of Brighton who held an
office, from which by statutory regulations he could only be removed on grounds of neglect
of duty or inability, could not validity be dismissed in the absence of the notification of the
charge and an opportunity to be heard in his defence.

This is one of the key cases in Judicial Review and disclosure of information.

6. Adjournment

Natural Justice required that a party be granted adjournment of a hearing of a case if the
exigencies require (it does not matter how guilty a person is, if exigencies arise, they must
be accorded an adjournment by the administrative body and if they are denied an
adjournment and a decision is given, the court will quash such a decision

A wrongful refusal to adjourn amount to a denial of a fair hearing and will result in the
quashing of a decision. This was stated in the case of

Priddle Vs. Fisher & Sons (1968) WLR 1478

A heating engineer was denied an adjournment in a case he was supposed to be

represented by a trade union representative. The decision of the court arising out of the
proceedings in the absence of the applicant was held to be unfair

7. Cross Examination

31
An opportunity to cross-examine can only be availed if there is an oral hearing i.e. the rule
applies to cases where there is an oral hearing. Whenever there is an oral hearing and a
party requests to cross-examine, the affected party must be granted an opportunity to
cross –examine. If an affected party requests to cross examine but an opportunity is
denied, the decision made can be voided on grounds of breach of principles of natural
justice.

If a party does not ask for a chance to cross examine, he is precluded from complaining

8. Giving Reasons

Progressively courts are insisting on giving reasons for a decision as a component for
justice. (if an administrative body denies you lets say a licence, they must give you the
reasons why failure to which you can petition the High Court for a review) in this case

Padfield V The Minister for Agricultural Fisheries and Food (1968) AC 977

Lord Reid stated “I cannot agree that a decision cannot be questioned if no reasons are
given.” Meaning if no reasons are given a decision can be questioned.

9. Legal Representation

This does not apply in every case but in suitable cases and suitable circumstances, the
right to representation by a lawyer or some person may be part of natural justice. For
example in the Liquor Licensing Act, it allows for a person applying for a licence to be
represented by an authorized agent in which case he becomes the legal representatives
before the court.

Where legal representation is necessary, authorizes and is requested by a party the right to
legal representation must be granted. If denied, a decision may be quashed on grounds of
failure to observe the principles of natural justice.

Effect of Breach of principles of natural Justice

32
The effect of failure to comply with the rules of natural justice is that any decision or other
administrative action taken is null and void and can be invalidated by the courts. Breach of
principles of natural justice has been a good ground of judicial review.

Breach of any one of the rules discussed above will give rise to judicial review.

Read order 53 of the Civil Rules, CAP 21, Laws of Kenya

Procedure for applying for judicial Review

Procedure for Application for Judicial review

Application for leave is by way of chamber Summons under Civil Procedure Rules Order
LIII. This application is made ex parte in sub section 3 it requires that notice be given for
application for leave. The notice is to be given to the Registrar of the High Court.

Time limitation is crucial. Order 53 provides for time limits within which a person can apply
for leave. The law is very strict where it comes to certiorari, you have to file your application
for leave within 6 months of the date your application e.g. when a liquor licensing was
denied. If you do not file within 6 months the court cannot grant an extension.

Time limitation is not stipulated for Mandamus or prohibition but it is required that you file
the application within a reasonable time. Reasonable time means that you may serve 3
months after the licence was denied and be denied leave or for 8 months and they grant
leave. But with certiorari it has to be 6 months and it cannot be extended.

Order 53 (4) – grant of leave to make the application can operate as a stay of proceedings.
It can be a stay of the proceedings that you are complaining about.

The grant of leave will operate as a stay of proceedings where you are seeking quash
whatever has taken place under certiorari. Stay will only apply in case of certiorari and
prohibition and not Mandamus

33
APPLICATION FOR JUDICIAL REVIEW

Under section 3 (1),after leave is granted, one is required to file an application by way of
Notice of Motion which will include a statement. Within 21 days of the grant of leave, one
must make an application. If personal allegation have made, one must serve the party
(Respondents). Service must be effected within 8 clear days of hearing:

Usually a court process server will swear an affidavit stating how they effected service.

File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court
registry and the affidavit must be in the file on the day of hearing.

Hearing: This is when your application for Judicial Review is done. The administrative
body or tribunal will enter appearance which is done in a prescribed format. After the court
listens to your allegation, the court makes a ruling and the court may rule in your favour or
against. When asking for certiorari, you must categorically indicate that in your pleading
etc.

REMEDIES
There are only three remedies that the court can grant for judicial review
Certiorari
Prohibition
Mandamus

Where the courts will grant one of these rules depends on the circumstances.

CERTIORARI
As discussed earlier, currently, certiorari is an order to remove proceedings from an inferior
court to the High Court in order to be investigated and if found wanting on any one of the
grounds we studied including ultra vires, be quashed. The order can issue against
administrative tribunals, it can also issue against inferior courts such as the industrial
courts, it can issue against local authorities, it can issue against Ministries of Government.
It can also issue against miscellaneous public bodies exercising functions.

34
Majid Cockar V Director of Pensions Nai H.C Misc. App 523 of 1998

This was the case between the former Chief Justice and the Director of Pensions. In
computing the pension payable to the CJ the pensions department made a mistake in their
calculations, The former Chief justice went to court and upon application for Judicial
Review the court issued the order of certiorari to quash the decision awarding the former
CJ an amount of money as pension

For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must
be having Locus Standi which is crucial as one must have the capacity to sue. Capacity to
sue denotes possession of a sufficient interest in the matter. If one does not have sufficient
interest (locus standi) in the matter his/her suit would be struck out.

PROHIBITION

As discussed above, the role of prohibition is to prohibit a body (administrative bodies) from
continuing proceedings: it will also prohibit a body from continuing the carrying out
decisions wrongly or wrongfully made. This order may be issued against judicial body
acting in an administrative capacity i.e. co-operative or water tribunal. It can also be issued
to stop a public body from continuing proceedings that are ultra vires. It can also be issued
to stop an administrative body from continuing to do something in excess of jurisdiction. It
can also be used to stop an administration body from abusing their powers.

RV Electricity Commissioner Ex parte Electricity Joint Committee (1924) 1 KB 171

At Page 559 Lard Denning stated as follows

“It is available to prohibit administrative authorities from exceeding their powers or misusing
them” Lord Atkin in the same case said as follows:
“If proceedings establish that the body complained of exceeded its
jurisdiction by entertaining matters which would result in its final
decision being subjected to being brought up and quashed on
certiorari, I think that prohibition will lie to restrain it from exceeding
its jurisdiction”

35
This illustrates the point that prohibition will lie restrain an administrative body from doing
something wrongly or misusing its power, abuse of power etc

When one applies for the order of Certiorari one s seeking to quash a decision that has
already been made. At the time of application for judicial review, the order you seek the
court to quash must e presented to the court by making a photocopy of the order and
attaching it to the application

With prohibition, you do not have to attach the copy of the order

MANDAMUS

Mandamus issues where there is a duty imposed by statute or common law. Peas note that
the duty must be a public duty, Mandamus will not issuer in respect of a duty that is of a
private nature even if the body in question is a public body. For example where two
construction companies agree to undertake some work who agree to resolve any dispute
between them by arbitration through the industrial court. The industrial court will be
performing a private function and thus the order of Mandamus cannot issue

For Mandamus to issue, the Applicant must have made a request for the performance of a
publicity duty which has been refused, declined or ignored. This means that if a public
admin body refused to do something you must approach it and request it to perform the
function or the courts will not hear you. Unreasonable delay on the part of the public body
will be treated as refusal. The duty must be a specific duty. You cannot apply for the order
of Mandamus for a duty that is general, it must be specific e.g. under the English Gas
91972) it was the duty of the British Gas corporation to develop an efficient coordinated
and economical system of Gas supply for Great Britain. Such an obligation is so imprecise
i.e. it is so general that it would not be enforceable by the order of Mandamus. The lack of
specify does not mean that it is meaningless. Duty can be carried out but it is not precise.
Mandamus is used to enforce performance of specific duties and not exercise of mere
powers.

Kenya National Examination Council V. R Ex parte Geoffrey Gathinji Njoroge &

others Civil Appeal No. 266 of 1996

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Justice of Appeal Tunoi and Shah stated as follows regarding the powers of Kenya national
Examination Council
“The times and frequency of the examination are left to the discretion of council and it
cannot be enforced by Mandamus to hold an examination at any particular time of the year.

Daniel Nyongesa & Other V Egerton University College Civil Appeal No. 90 of 1989

In this case Nyongesa’s exam results were held by the university and when he went to
court, the court issued an order of mandamus for the court to release the results.
Nyongesa had requested the university for his results and they had refused so he applied
for an order of mandamus to the court and he was granted. There was a specific duty for
the university to release the results.

DISTINGUISH BETWEEN JUDICIAL REVIEW AND ORDIRY REVIEW A(REVIEW OF

JUDGMENT )

Order XLIV Civil Review – APPLICATION FOR REVIEW OF JUDGMENTS

In addition to judicial review there is what is known as ordinary review. Judicial review is
recorded under oder 53 and Ordinary Review is provided for under order 44 of the Civil
Procedure Rules.

When can a person review an ordinary review in a different court?

If the judgment that made the decision is no longer at the station, then one can
apply to a different court for review.
If the judge who made the judgment has not been present for 3 months after
making the decision, then his/her successor may entertain the matter.

There is no time limitation to when one can apply for an ordinary review but the application
must be made without delay. There is no requirement of leave of court to apply unlike in
judicial review where one has to seek leave of court.

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 Ordinary Review is review of judgment or order made by a court of law (Judicial Review is
review of an act or decision of an administrative body)

Ordinary review is provided for under order XLIV (44) of the Civil procedure Rules. The
order provides that any person considering himself aggrieved by decree or an order from
which an appeal is allowed but from which no appeal has allowed, or a person who feels
aggrieved by a degree or order from which no appeal is allowed may petition the court that
made the order of decree in the following conditions:

On the discovery of new and important matter or evidence which after the
exercise of due diligence was not within his knowledge or could not be produced
by him at the time the decree or order was made.
On account of some mistake or error apparent on the face of the record’ for
example error of law, typographical errors, mathematical errors etc
For any other sufficient reason

In these 3 circumstances an aggrieved person may apply to the court which made the
decree or order. There are certain exceptions to the requirements that application for
review be made to the court that made the degree or order.

Where the chief Justice orders some other person, i.e. some other judge or
magistrate to hear their application for review’
Where the Judge or Magistrate who made the decree or the order judge is no
longer attached to that court e.g. where they has been transferred or resigned or died.
Where the Magistrate or Judge who made the order or decree has been absent
from the station for more than 3 months from the date of filing of ones application
Where one have discovered new and important mater of evidence

Note that there is no time limitation for application for ordinary review but it must be brought
without unnecessary delay. Upon ordinary review, there may be a re-hearing of a case. The
case may be heard afresh.

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No double review is allowed meaning that no application can be brought for review of an
ordered issued upon an application for ordinary review.

DISTINCTIONS BETWEEN ORDINARY REVIEW AND JUDICIAL REVIEW.

With judicial review an aggrieved party must of all apply for leave of court and on
the other hand there is no requirements for leave on application for ordinary review.
With judicial especially where an applicant seeks the order of Certiorari the
application must be brought within six month i.e. there is time limitation of six months
on the other hand with ordinary review there is no time limitation but the application
must be brought without unnecessary delay.
This is with regard to the grounds- the grounds for judicial review are not the same
as those for ordinary review.

Kenya Airways Limited V Kenya Airways Pilots Association H.C Nai Misc. App No. 254 of
2001

Judicial Review is not an Appeal

Distinction between Appeal and Judicial Review

An appeal has been described as the transfer or taking of a case from a lower court to a higher
court in the hope of reversing or modifying or altering the decision of the former. An appeal
involves taking a case to a higher court for rehearing to determine whether the decision arrived
at by the lower court was right or wrong. When one appeals a decision, one is claiming that it is
wrong or incorrect on the basis of evidence tendered and the applicable law and that the
appellate body should change the decision. For example of X was found to have defamed Y
upon judgment X might appeal that finding or the amount of damages which the court
awarded to Y. the court of appeal if persuaded of the merit of the case may allow X’s Appeal in
which case the court substitutes its view for that of the lower court. Thus we can say, that on
the other hand with judicial review, a court is not concerned with the merits of the case in other
words, a court is not concerned with whether the decision was right or wrong on the basis of

39
the evidence tendered and the Application Law, but with whether the decision making process
was lawful or unlawful

Whereas an appeal is concerned with decision (it is concerned with whether a decision was
right or wrong) judicial review is concerned with the decision making process.

Chief Constable of North Wales Police V. Evans (1982) 1 WLR 1155

In this case the curt stated in an effort to distinguish judicial review from appeal that the
purpose of judicial review is to ensure that an individual is given fair treatment by a wide range
of administrative authorizes be they judicial quasi judicial or purely administrative to which the
individual had been subject. It is no part of that purpose to substitute the opinion of the judicial
or the individual judges for that of the authority constituted by law to decide the matter in
question. The consequences of finding that a decision or a decision was unlawful, and the
consequences of finding that the decision making process was unlawful, improper or flawed is
that it is invalidated. This means in the case of Judicial Review, that the court can order a
decision to be made again but the second time, it must be made in accordance with the law.
Please note that it would be acceptable for the decision maker to come to the same conclusion
provided the law is respected.

Mirugi Kariouki V Attorney General

The Appellant was charged with Treason. He petitioned the Attorney General to grant to him an
English Barrister to lead his defence. In the exercise of his absolute discretion to consider such
a request conferred by Section 11 of the Advocates Act, the Attorney General wrote a letter to
the Appellant saying that leave would not be granted because the Appellant’s trial was straight
forward and would not require the assistance of a foreign advocate. In an application for
Certiorari to quash the Attorney General’s decision, the court found that the grounds on which
the Attorney General’s grounds were founded suspicious. The Court removed the offending
letter to the High Court quashed it and detected the Attorney General to reconsider Mr.
Kariuki’s request in a manner more respectful to the norms of sound administration.

The point is that even if the law was not allowed in the first place, the court can order that body
to reconsider the matter.

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With Appeals, if there is a right of appeal and an appeal succeed, the appellate Court will
substitute its own decision for that of the inferior tribunal and dispose of the case accordingly

Another attribute of appeal is that it is granted by statute, unless a statute expressly allows
appeal, an aggrieved party cannot lodge an appeal against a decision. In cases where appeals
are allowed against administrative decision or action, the relevant laws will expressly state that
Appeal is allowed. On the other hand in judicial review, the court exercises inherent powers
which give it authority to review unlawful decision. In other worlds, there need not be express
statutory provisions authorizing the High Court to exe4cvise judicial review oven a
administrative decision, or an administrative action.

Please note that even if a statute specifically excluded appeal to Higher Court, this does not
bar the High Court from exercising power of Judicial Review.

Note the distinction between Appeals and Judicial Review

EXCLUSIONARY CLAUSES /OUSTER CLAUSES

There are those statutory provisions that will purport to exclude Judicial Review. They appear
in various forms and one way for example would as follows “the award of the industrial court
shall not be questioned or reviewed by any court.” S. 17(2). The Disputes Act. This provision
ousts the powers of High Court to Review the decision of the administrative body.

The ouster clauses also appear in forma of finally clauses i.e. “decision of this body is final and
conclusive and shall not be questioned in any court.” Statute may also say that the decision of
this body shall not be questioned in any legal proceedings. When such clauses appear, does it
necessarily mean that the court cannot inquire into a decision through judicial review? The
answer is simple it is important to note that if such statutory provisions were interpreted literally
it would mean that an aggrieved person is bound by the decision of an administrative body
however unlawful that decision is. Literally it would mean that no court is entitled to go behind
that decision by way of judicial review. However, the attitude of the courts and the practice
especially in Kenya show a trend that courts will disregard such provisions in other words

41
courts will disregard ouster clauses and proceed to review administrative decisions and
administrative actions.

In almost every case, the practice is that the courts will regardless of such ouster clause review
an administrative decision.

The general attitude of judges, which including those in other countries and other is that access
to the courts can only be excluded by very clear words to that effect and that even where those
very clear words are present, those statutory provision purporting to deny access to justice
(Ouster clauses) will as far as possible be interpreted in a favour of the citizen. This point
illustrated in an English Case.

Re Gilmores Applications (1957) 1 QB 574

Lord Denning stated:

“The remedy of Certiorari is never to be taken away by any statute
except by the most clear and explicit words. The word ‘final’ is not
enough. That only means without appeal. It does not mean without
recourse to Certiorari. It makes the decision final on the facts but not
final on the law. Notwithstanding that the decision is by a statute made
is final Certiorari can still issue for excess of jurisdiction or for error on
the face of the record. If tribunals were to be liberty to exceed their
jurisdiction without any checks by the courts, the rule of law would be at
an end”

By extrapolation this rule of Lord Denning would apply to Mandamus and prohibition

In Kenya the High Court has ruled that where there is an ouster clause, for example the one
appearing in Section 17(2) of the Trade Disputes Act, the High Court nevertheless has
jurisdiction to interfere with the decision on an administrative body if anyone or more of the
grounds of the judicial review are present. The best case that illustrates this is.

Kenya Airways Limited V. Kenya Airline Pilot Association

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43