THE GROUP 3

PRESENTS…
ADMINISTRATIVE LAW
AS IT WAS, AS IT IS AND
THE IMPACT OF THE
NEW CONSTITUTION
THEREIN.
THE PRINCIPLES OVER TIME…
LEGALITY
 The old legal disposition had a gaping lacuna as
regards the requirement of legality of administrative
action.
 What’s more, the then law(Public Financial
Regulations)required compliance of all junior
administrators regardless of the legality status of the
directions from their superiors.
 The main challenges to the realization of this
principle in administrative law was the lack of clarity
on the exact mandates of agencies, lack of
knowledge on the exact mandate of the agencies by
the public and overcrowding of functions in some
agencies(such as the then office of the ombudsman).
[Case study of the Goldenberg Scandal]
POST 2010
 This requirement is now protected in Article
47 of the 2010 Constitution which is mirrored
by Article 4 of the FAAA.
PROPORTIONALITY
 In terms of necessity, balancing and
appropriateness of decisions, the pre-2010
administrative law did not do much:
 Workers were fired for the flimsiest reasons
while others got off on suspension for serious
malpractice such as fraud.
POST 2010
 Objectivity in exercise of administrative law
is now a constitutional requirement in
Articles 72(2b) and 24(1) of the 2010
Constitution as implemented and interpreted
in such cases as Trusted Society of Human Rights
Alliance and 3 others v Judicial Service
Commission and Another and Jacqueline Okuta &
another v Attorney General & 2 others.
REASONABLENESS
 Discretionary powers of administrative
organs have been guided by the test of
reasonableness as enunciated by Lord Green
in the Wednesbury Corporation Case both
before and after the 2010 Constitution in
such cases as Republic vs. Kenya Power and
Lighting Company Ltd & another (2013) and
R v. Commissioner for Racial Equality ex p
Hillingdon LCB (1982), with difference that it
is now codified under Article 47 of the 2010
Constitution as read with Section 4(1) of the
FAAA.
INDEPENDENCE
 As observed in the Report of the Commission
of Enquiry into Post-Election Violence(page
29), Kenya has never had the luxury of
administrative organs that are appropriately
autonomous and free from political influence,
especially the President’s. From self-serving
amendments to unconstitutional fiats,
administrators have not had chance to serve
the mwananchi as he deserves.
 This has had adverse effects on administration
in Kenya such that it is more in service of
selfish interests than it is of ethical practice.
POST 2010
 The Constitution of Kenya 2010 has gone a
long way in ensuring the autonomy of
administrative organs:
 Administrators are appointed on clearly set
out bases- Article 73(2)(a), and the security
of their tenure guaranteed- Article 236.
 Their neutrality is ensured by curtailing
possible conflict of interest- Articles 75 and
79.
JUSTIFICATION AND
ACCOUNTABILITY
 The requirement of the duty to be
answerable for one’s actions and give reasons
thereof, though set out in law(Public Officers
Ethics Act of 2003, Public Service Commission
Regulations of 2005,Public Procurement and
Disposal Act of 2005) even before the 2010
Constitution, has only been
constitutionalized thereafter.
POST 2010
 Section 6 of the FAAA requires administrators
to give reasons for their decisions except in
such circumstances as are envisioned in
Article 24 of the 2010 Constitution.
 Although a big step in ensuring
accountability, the Article allows for wide
discretion disallowed in Article 94(6) of the
Constitution. More needs to be done.
PUBLIC PARTICIPATION
 Public Participation was a grey area in the
pre 2010 era what with the wide
discretionary powers granted to
administrators.
 It was largely a mirage due to the lack of
education on matters of administration
among the citizenry.
POST 2010
 Section 4 of the FAAA requires hearing of
affected persons.
 Further, section 10 of the same Act codifies
public participation as an integral part of
public administration.
 Needing further regard, however, is the
absence of specific bodies to encourage and
receive the views of the public.
JUDICIAL REVIEW
 The High Court enjoyed a monopoly listening
to all judicial review cases.(Section 8 & 9 of
the Law Reform Act).
 Remedies were limited to orders of
mandamus, certiorari and prohibition (Order
LIII of the Civil Procedure Rules) which were
not available if there were other possible
remedies(section 8(2) of the Law Reform
Ordinance,1956).
POST 2010
 It is no longer only under the high court’s
jurisdiction but subject to applicant’s
discretion on which judicial organ they would
like their petition heard before.(Article 7 of
the FAAA).
 The grounds for judicial review, unlike
before, are now clearly outlined in section
7(2) of the FAAA.
 Section 11 of the FAAA empowers the court
to issue any remedy order that is “just and
equitable” breaking the barriers of the 3
writs.