2nd semester admin law ii.doc

8/14/2019 2ND SEMESTER Admin Law II.doc

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UNIVERSITY OF NAIROBI

FACULTY OF LAW

XXX

LLB II 2003

JUDICIAL REVIEW

LECTURE NOTES

JUDICIAL REVIEW Lecture 1

Judicial Review is the process through which an aggrieved person can find redress in a

Court of Law. Judicial Review forms part of administrative law because it is the mostappropriate way that an aggrieved party aggrieved by an administrative body can find

redress.

Reading Material

1. Brian Thompson Te!t Boo" on Constitutional and #dministrative Law $nd

%dition 1&&'.

$. (eter Cane) #n *ntroduction to #dministrative law +rd%d. 1&&,

+. ( L - Lumumba #n outline of udicial Review in /enya) 1&&&0. -rder '+ of the Civil (rocedure Rules) Civil (rocedure #ct Cap $1

'. The Constitution 1&& Revised %d. 1&& 21&34

JUDICIAL REVIEW

5efinition of #dministrative Law

#dministrative Law can be defined as the law relating to public administration. *t is the

law relating to the performance) management and e!ecution of public affairs and duties.

#dministrative law is concerned with the way in which the govt carries out its functions.#dministrative functions can be divided into a number of broad categories namely

1. Mii!teri"# Fucti$!%%!amples of Ministerial 6unctions are those functions

carried out or performed by 7overnment Ministers in their implementation of

governmental policies and programs. %!amples include appointment of publicofficials by Ministers and the grant of ministerial approvals and consents.

$. A&'ii!tr"ti(e Fucti$! 8 these are the functions carried out by publicofficials and public bodies in their management of various governmental bodies

in their provision of service for e!ample educational services and in their

administration of various social services as in the case of social securityservices. (lease note that management of public schools and universities

provide yet another e!ample of administrative functions of governmental

bodies.

+. Le)i!#"ti(e Fucti$!* These include the function of ma"ing or creating

subsidiary legislation. The responsibility of legislative functions is on the

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respective Ministers9. The duty of ma"ing by8laws is also the respective

minister9s.

0. Ju&ici"# Fucti$!* These primarily involve the functions of determining

claims or disputes between individuals and other bodies. # good e!ample of

administrative body that performs udicial functions is the *ndustrial Courtwhich functions as a court of law.

'. +u"!i Ju&ici"# Fucti$!* These involve the e!ercise of powers which arefundamentally udicial but without the usual trappings of a court of law for

e!ample without strict re:uirement of rules of evidence or the observance of

rules of evidence) without strict re:uirements of e!amination of witnesses and

without other legal technicalities a good e!ample being the Li:uor LicensingCourt) the Land Control Boards and the Motor ;ehicle Licensing #uthorities.

*n the e!ercise of the various functions) public officials and public bodies do various things

2a4 They ma"e decisions for e!ample they ma"e decisions on application forlicences. + of the Constitution places a re:uirement that any law) rule or regulation

made must be in conformity with the constitution >ection + of the Constitutionstates as follows ?if any other law is inconsistent with this Constitution, this

Constitution shall prevail and the other law shall to the extent of the

inconsistency be void.

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2ii4 They must also conform to statutes so that if the statutes grant powers they must

e!ercise only those powers that are granted by the statutes. They must "eep

within the powers that they have been granted by the statutes.

2iii4 *f any procedure is prescribed) they must follow that procedure.

2iv4 They must uphold the rules of natural usticeection 2$4 of the 1&',-rdinance which had until then restricted applications for these orders only to cases where

there were no alternative remedies was replaced. This section was replaced by another

ordinance "nown as the Law Reform 2Miscellaneous #mendment4 -rdinance which nowallowed an aggrieved person to obtain any one or more of those prerogative orders the

presence of an alternative remedy not withstanding.

The problem as of that time was that the words FCrown9 was still maintained which was not

applicable to the circumstances of the people of this country and soon after independence

the word FCrown9 was removed. *n 1&,, they passed the >tatute Law 2Miscellaneous

#mendment4 #ct which replaced the word FCrown9 with the word F7overnment9.Regardless of these changes) The Law Reform #ct which was inherited from the Law

Reform -rdinance of 21&,G4 still recognised %nglish Law governing the prerogative orders

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as the guideline with reference to which the Eigh Court in /enya could issue the orders i.e.

we were not independent and had to loo" to the source for guidance.

>ection of the Law Reform #ct provided as follows

?%hat the High Court shall not whether in the exercise of its civil or criminal &urisdiction

issue any of the prerogative orders of "andamus, #rohibition or Certiorari

>ection 2$4 'in any case in which the High Court in ngland is by virtue of the

provisions of !ection ( of the Administration of )ustice *"iscellaneous provisions+ Act of- of 0nited $ingdom empowered to make an order of "andamus, #rohibition or

Certiorari, the High Court of $enya shall have power to make a like order.

*n other words this #ct provides that the Eigh Court of /enya shall issue any one or moreof these orders only where the Eigh Court of %ngland can issue such orders. These orders

only issue upon udicial review. They are the only remedies that the courts in /enya can

grant upon udicial review.

#nother important factor regarding applicability of udicial review is provided for under

>ection & of the Law Reform #ct Cap $, Laws of /enya. The primary legal basis ofJudicial Review is the Law Reform #ct. 6rom the wording of >. ) $#. t/e i)/ C$urtcan issue these orders. Hou can only apply for Judicial Review in the Eigh Courts and not

the Magistrates Courts.

>ection & of Law Reform #ct provides in subsection 214 that any power to ma"e rules of

courts to provide for any matters relating to the procedure of civil courts shall include

power to ma"e rules of court regarding the following=

1. (rescribing the procedure and fees payable on documents filed or issued in

cases where an order of mandamus) prohibition or certiorari is soughtection & 214 2b4 provides that rules can be made re:uiring that leave shall be

obtained before an application is made for any one of these orders.

+. >ection & 214 2c4 provides that if the courts grant leave for udicial review and

then you proceed to file an application of udicial review) only those orders that

you specified in your leave application will be granted.

0. >ection & 2$4 provides for time limitation and authorises that rules be made

prescribing a time period of , months or less within which an application forany one of the prerogative orders can be made. Eowever) when it comes to

Certi$r"risubsection 2+4 ma"es it very clear that if you intend to apply for the

order of certiorari you must see" the court9s leave before , months are over.

(ursuant to >ection & 214 2a4 the specific procedure has been stipulated under -rder '+ of

the Civil (rocedure Rules for applying for leave to apply for Judicial Review and for

applying for Judicial Review.

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The Civil (rocedure #ct is therefore the #ct of (arliament that sets forth the procedure for

applying for Judicial Review or so called prerogative orders. *n addition to the Law

Reform #ct we have the Civil (rocedure #ct forming the legal basis for Judicial Review.

>ection ,'2$4 of the Constitution is the Constitutional basis for Judicial Review.

LE,AL BASIS OF RERO,ATIVE ORDERSJUDICIAL REVIEW

Law Reform #ct

Civil (rocedure #ct

Constitution.

JUDICIAL REVIEW Lecture $

IIILLB ** $GG+

7R-@5> -6 J5*C*#L R%;*%A

By loo"ing at the grounds of udicial review) we will be studying the circumstances in

which an aggrieved person may petition the Eigh Court for Judicial Review. Ae will be

loo"ing at cases of failure to conform to one or more of the re:uirements that we listed lastwee".

(lease note that Courts of Law will intervene in public administration in one or more of thefollowing circumstances i.e. courts of law will review actions of admin bodies in one or

more of the following circumstances

1. Ahen a body acts u#tr" (ire!unday

performance with or without an adult.

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# local authority empowered to attach such conditions as it thought fit to the grant of a

permit for >unday cinema opening) imposed a condition that no child under fifteen shouldbe admitted to a >unday performance at all. The condition was attac"ed as being void for

unreasonableness. The Court of #ppeal held that it was valid.

The court held in an action for declaration that this condition was reasonable) the court held

that the local authority had not acted unreasonably. *n imposing this condition) the

licensing authority had not acted ultra vires. The court then went on to state ?what a courtwould be loo"ing at when faced with unreasonableness is whether

2i4 Matters that need to be ta"en into account have been ta"en into accountcope or area in which a body is allowed to act< includes territorial limits. Ahere there is

error it means=1. That an administrative agency has acted without urisdiction. They have acted

over matters which they have no authority to act.$. They have acted within urisdiction but have gone beyond or e!ceeded this can

happen=

2a4 Ahen a body erroneously e!ercises power or authority over a matter thatis outside of its territorial limits.

2b4 Ahere a body legislates over a matter that falls outside of the matters it

is authorised to legislate over.

2c4 Ahere an administrative body declines to e!ercise urisdiction to hearand decide a case or to legislate over a matter over which it has

urisdiction to hear or decide or legislate over< 2#uthority to do

something but decline to do it.42d4 *t 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.

*n case any one of these things occurs and a person is aggrieved) as a result the aggrieved

person can apply to the Eigh Court for Judicial Review on the ground that a public body

has committed urisdictional error.

Ai!'iic Lt&8 V8 F$rei) C$'7e!"ti$ C$''i!!i$ @1:: 2 AC 1>

The dispute in this case arose from the agreement between the 7overnments of %gypt andthe nited /ingdom that a sum is paid by %gypt to provide compensation for those British

companies and persons whose property had been lost or damaged in the 1&', >ueK

incident) and subse:uent e!propriations of British property by the %gyptian government.The nited /ingdom 7overnment entrusted the distribution of compensation to the

6oreign Compensation Commission and section 0204 of the 6oreign Compensation #ct

provided that 1%he determination by the Commission of any application made to them

under this Act shall not be called into 2uestion in any court of law.3 The statutoryinstrument defining the powers of the Commission in relation to applications arising out of

the >ueK incident contained complicated and obscure provisions as to the nationality of

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applicants for compensation. The obect was to ensure that only those of British nationality

received compensation) be they the original owners of the property lost or damaged) or

their successors in title. #nisminic was a British company but its property had been firstse:uestrated and then sold to an %gyptian organiKation. The Commission interpreted the

statutory statement defining proper applicants for compensation as e!cluding #nisminic

because their successor in title was of %gyptian nationality. The Eouse of Lords held thatthe Commission had misconstrued the instrument because where the original owner 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 :uestions which they had beengranted urisdiction to determine. They had embar"ed on an en:uiry beyond the limited

in:uiry directed by (arliament. #ccordingly they had e!ceeded their urisdiction and their

purported determination was invalid and not protected by the provision preventing proper

determination of the Commission being :uestioned in courts.

JUDICIAL REVIEW Lecture +III

LLB ** $GG+

>8 ERROR OF LAW

#n error of law is a condition or an act of ignorance) negligence or imprudent deviation or

departure from the law.

*gnorant departure would include a situation where an administration official is ignorant ofthe law. *f the minister of local govt for e!ample has no idea that he cannot sac" an elected

mayor) this is an act of ignorance.MsaN @egligence would be where an admin body fails

to do what the law provides and in this case they have failed to loo" up the law to see whatit provides.

This can result from a number of things

1. 6ailure to ascertain what the law is on a particular matter or what the law saysabout a particular matter

2iii4 #ctual Bias=

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There are cases where in the absence of the real li"elihood of bias and in the

absence of pecuniary and other interests) and in the absence of the real danger of

partiality) bias does "ctu"##. $ccurand in this situation the test is whether there wasactual bias. *n cases where there is a li"elihood of bias) for e!ample in cases where

members of the decision ma"ing body have a pecuniary interest in the matter to be

considered) they must dis:ualify themselves from ta"ing part in ma"ing thatdecision. *f they do not) this will give rise to bias and the decision made can be

invalidated upon review. *nvalidation is by way of :uashing so the decision is

:uashed.

JUDICIAL REVIEW Lecture 'III

LLB ** $GG+

.$.G+108 UNFAIR EARIN,

#dministrative bodies are bound to give a fair and proper hearing to those who come

before them. -ften the statutes will prescribe the procedure for hearing indicating how

concerned parties are to be heard. *n such statutory provisions the duty to grant a fair andproper hearing may be implied. *n the absence of statutory provisions setting forth

procedure for hearing common law rules regarding fair and proper hearing will apply.

Ahere a public body ma"es 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.

Nei# V8 N$rt/ Atri' M")i!tr"te! C$urt @1::2 WLR 1220

This case suggests that even if a right decision is arrived at a party may still petition thecourt if some procedural flaw occurred occasioning damage. This means that if a party had

a case and even if he argued 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. # personmust have a chance to be heard.

(lease note that failure to give a fair hearing will result in a null and void decision which

means that if a party petitions the court for udicial review on the ground that he was notgranted a fair hearing and should the court find that this person was not given a fair

hearing) the court will declare the decision u## "& ($i&8

118 IRRATIONALITY

*rrationality is derived from the word irrational. This means that if a decision ma"ing bodyor an administrative body acts irrationally) whatever that body does irrationally or whatever

decision it ma"es irrationally can be invalidated upon udicial review. *rrationally means

conduct beyond the range of responses reasonably open to an administrative body.

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*n 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 obectivetest.

#ssociated (rovincial (icture Eouses ;. Aednesbury Corporation 1&0 1 /B $$+

R V8 E"#i) L$&$ B$r$u)/ C$uci# e? 7"rte Ti'e! Ne5!7"7er Lt& @1:


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These principles of natural ustice are rules governing procedure and conduct of

administrative bodies. They were developed by the courts in %ngland and imported into

/enya as part of common law principles.

(rinciples of natural ustice are implied so you will not see them e!pressed in a statute 1 -8B

11

#t (age ''& Lord 5enning stated as follows

?*t is available to prohibit administrative authorities from e!ceeding their powers ormisusing them.P

Lord #t"in in the same case said as follows

?*f proceedings establish that the body complained of e!ceeded its urisdiction) by

entertaining matters which would result in its final decision being subect to being broughtup and :uashed on certiorari) * thin" that (rohibition will lie to restrain it from e!ceeding

its urisdiction.P

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This illustrates the point that prohibition will lie to restrain an administrative body from

doing something wrongly or misusing its power) abuse of power etc.

Ahen one applies for the order of Certiorari) one is see"ing to :uash a decision that has

already been made. #t the time of application for udicial review) the order you see" thecourt to :uash must be presented to the court by ma"ing a photocopy of the order and

attaching it to the #pplication.

Aith (rohibition) you do not have to attach the copy of the order.

M#@5#M>=

The order of Mandamus is derived from the Latin word Mandare meaning to command. *tis a court order issued to compel the performance of a public duty where a public body or

official has unlawfully refused) declined or otherwise failed to underta"e the duty.Mandamus is a court order issued to compel the performance of a public duty where a

public body or official has public refused failed or declined to underta"e a duty.

Mandamus issues where there is a duty imposed by statute or common law. (lease note

that the duty must be a public duty) Mandamus will not issue in respect of a duty that is of a

private nature even if the body in :uestion is a public body. 6or e!ample where two

construction companies agree to underta"e some wor" who agree to resolve any disputebetween them by arbitration through the industrial court. The industrial court will be

performing a private function and thus the order of Mandamus cannot issue.

6or Mandamus to issue) the #pplicant must have made a re:uest for the performance of a

public 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 re:uest it to perform the functionor the courts will not hear you. nreasonable delay on the part of the public body will be

treated as refusal. The duty must be a specific duty. Hou cannot apply for the order of

Mandamus for a duty that is general) it must be specific e.g. under the %nglish 7as 21&3$4

it was the duty of the British 7as Corporation to develop an efficient coordinated andeconomical system of 7as supply for 7reat Britain. >uch an obligation is so imprecise i.e.

it is so general that it would not be enforceable by the order of Mandamus. The lac" of

specificity does not mean that it is meaningless. 5uty can be carried out but it is notprecise. Mandamus is used to enforce performance of specific duties and not the e!ercise

of mere powers.

-e." N"ti$"# E?"'i"ti$ C$uci# V8 R E? 7"rte ,e$44re. ,"t/ii N$r$)e

$t/er! Ci(i# A77e"# N$8 2 $4 1::

Justices of #ppeal Tunoi and >hah stated as follows regarding the powers of the /enya@ational %!amination Council

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?The times and fre:uency of the e!aminations are left to the discretion of the council and it

cannot be enforced by Mandamus to hold an e!amination at any particular time of the year.

D"ie# N.$)e!" Ot/er! V8 E)ert$ Ui(er!it. C$##e)e Ci(i# A77e"# NO8 :0 $4 1:T*@CT*-@ B%TA%%@ J5*C*#L R%;*%A Q -R5*@#RH R%;*%A

Read -rder 00 of the Civil (rocedure Rules

J5*C*#L R%;*%A Lecture ,III.

LLB ** $GG+

5*>T*@CT*-@ B%TA%%@ J5*C*#L R%;*%A #@5 -R5*@#RH

R%;*%A 2R%;*%A -6 J57M%@T4

-rder IL*; Civil Review #((L*C#T*-@ 6-R R%;*%A -6

J57M%@T>

*n addition to udicial review there is what is "nown as ordinary review.

Judicial review is covered under -rder '+ and -rdinary Review is provided

for under -rder 00 of the Civil (rocedure Rules.

-rdinary Review is a review of udgment or order of a court of law.

Judicial review is a review of an act or a decision of an administrative body.Ahen can a person review an ordinary review in a different courtO

1. *f the udge that made the decision is no longer at the station) then

one can apply to a different court for review.

$. *f the udge who made the udgment has not been present for +

months after + months it is considered that there has been an

inordinate delay and the court can allow you to review the decision

in a different court.$'


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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 re:uirement of leave

of court to apply unli"e in udicial review where one has to see" leave of

court.

-rdinary Review is review of udgment or order made by a court of law

2Judicial Review is review of an act or decision of an administrative body4

-rdinary Review is provided for under -rder IL*; 2004 of the Civil

(rocedure Rules. This order provides that any person considering himself

aggrieved by decree or an order from which an #ppeal is allowed but from

which no appeal has been allowed) or a person who feels aggrieved by a

decree or order from which no #ppeal is allowed may petition the court that

made the order of decree on the following conditions2i4 -n the discovery of new and important matter or evidence which

after the e!ercise of due diligence was not within his "nowledge or

could not be produced by him at the time the decree or order was

madetatute may also say that the decision of this body shall not be :uestioned in

any legal proceedings. Ahen such clauses appear) does it necessarily meanthat the court cannot in:uire into a decision through udicial reviewO 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 udicial review. Eowever) the attitude of the courts and the practice

especially in /enya show a trend that courts will disregard such provisions in

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other words courts will disregard ouster clauses and proceed to review

administrative decisions and administrative actions.

*n almost every case) the practice is that the courts will regardless of such

ouster clauses review an administrative decision.

The general attitude of udges) which includes udges in this countries and

others is that access to the courts can only be e!cluded by very clear words to

that effect and that even where those very clear words are present) those

statutory provisions purporting to deny access to ustice 2ouster clauses4 will

as far as possible be interpreted in favour of the citiKen. This point is

illustrated in an %nglish Case

Re 7ilmores #pplication 21&'34 1 DB '30

Lord 5enning state ?%he remedy of Certiorari is never to be taken away by

any statute except by the most clear and explicit words. %he word 1final3 is

not enough. %hat only means without appeal. 5t does not mean without

recourse to Certiorari. 5t makes the decision final on the facts but not final on

the law. 4otwithstanding that the decision is by a statute made final,

Certiorari can still issue for excess of &urisdiction or for error on the face of

the record. 5f tribunals were to be at liberty to exceed their &urisdiction

without any checks by the courts, the rule of law would be at an end.

By e!trapolation this rule of Lord 5enning would apply to Mandamus and

(rohibition

*n /enya the Eigh Court has ruled that where there is an ouster clause) for

e!ample the one appearing in >ection 132$4 of the Trade 5isputes #ct) the

Eigh Court nevertheless has urisdiction to interfere with the decision of an

administrative body if anyone or more of the grounds of the udicial review

are present. The best case that illustrates this is

-e." Air5".! Li'ite& V8 -e." Air#ie i#$t A!!$ci"ti$

>ergio applies for a li:uor licence to Mini Li:uor licensing board) he was

never informed

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2nd semester admin law ii.doc

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