STUDENT REGISTRATION SIGNATURE

NUMBER
TALLAM IAN KIPLIMO G34/3329/2017
KUBAI KELVIN G34/3244/2017
GITONGA
NJOROGE JOSEPH G34/45898/2017
MWANGI
BORORIO DIANA G34/3249/2017
MORAA
NJIIRI COLLINS G34/3209/2017
KARANJA
MWANGI ANTHONY G34/3202/2107
KIMANI
KINYUA KELVIN KINOTI G34/4715/2017
ARAIANDA MARGRET G34/3373/2017
WARUTERE BRIAN G34/3264/2017
MUNYU
OMAR ATHMAN G34/3363/2017
MWARORA
OGUDA MOSES G34/3379/2017
OBUNGA
QUESTION

With reference to decided cases and the Fair Administrative Act 2015,
discuss ultra vires, jurisdiction error, error of fact and error of law as
grounds of judicial review in Kenya.
LIST OF AUTHORITIES

The constitution of Kenya 2010

The Fair Administrative Act

Table of Contents

THE GROUNDS FOR JUDICIAL REVIEW...................................................................................................3

MEANING OF JUDICIAL REVIEW.........................................................................................................3

GROUNDS FOR JUDICIAL REVIEW..........................................................................................................3

1. THE ULTRA VIRES RULE..................................................................................................................3

Substantive ultra vires...................................................................................................................4

Procedural ultra vires....................................................................................................................4

2. ERROR OF LAW (ON THE FACE OF THE RECORDS).............................................................................5

3. JURISDICTION ERROR.........................................................................................................................6

4. ERROR OF FACT.................................................................................................................................7
THE GROUNDS FOR JUDICIAL REVIEW

MEANING OF JUDICIAL REVIEW

Administrative law is a regulatory branch of law that serves to regulate the decisions of
officers or organs of central government or public authorities which may affect the rights or
liberties of the citizens and which are enforceable in or are recognized by the courts of law.1

Judicial review is the law concerning control by the courts of the powers, functions and
procedures of administrative authorities and bodies discharging public functions. The process
by which the high court exercises its supervisory jurisdiction over the proceedings and
decisions of inferior courts, tribunals and other bodies that perform public functions.2 As such
judicial review ensures individual rights and freedoms are upheld in the execution of public
duty.

Judicial review draws its mandate from the constitution and the Fair Administrative Act.

“Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.’’3

“Any person who is aggrieved by an administrative action or decision may apply for
review of administrative action or decision.”4

It ought to be kept in mind that judicial review is not an appeal from a decision, rather a
review of the manner in which the decision was made, were it otherwise, it would be
synonymous to outstretching the actual scope of judicial review and in turn usurp the
discretion legitimately conferred upon public bodies by parliament.

GROUNDS FOR JUDICIAL REVIEW

As established, the purpose of judicial review is that there should be nothing similar to
absolute discretion in the hands of bodies performing public functions. Power must be subject
to judicial scrutiny to ensure conformity with the law.

1
Lord Diplock “Judicial control of the administrative process”. Current legal problems 1971.
2
Kaluma, Judicial Review:Law Proceedure and Practice, 1.
3
The Constitution of Kenya[Kenya],27 August,2010
4
Fair Administrative Action act. Part 3, section 7(1).
 1. THE ULTRA VIRES RULE
Literally, ultra vires means, ‘beyond the scope’. In context it signifies that a judicial authority
has exceeded that authority vested in it by the enabling act. An administrative authority is in
ultra vires when it acts beyond the scope of power, jurisdiction or authority granted or
permitted by law.

“A court or tribunal … may review an administrative action or decision if the person who
made the decision,

I. was not authorized to do so by the empowering provision,

II. acted in excess of jurisdiction or power conferred under any written law

There are two types of ultra vires, and by extension, two ways by which an administrative
agency could be held to be in violation of the doctrine of ultra vires

I. Substantive ultra vires

II. Procedural ultra vires

Substantive ultra vires

The law requires that administrative agencies do only those things that they are authorized to
do. It is a substantive ultra vire when an administrative authority has done, or decided to do
an act in which it lacks legal capacity or lawful authority to do.5

A near vivid instance of the application of the doctrine in Kenya is the early yet monumental
case of, Koinange Mbiu v R6 Here, powers granted to an authority to make rules and
regulations to specify areas in which coffee should be grown were held not warranted to be
used to discriminately prohibit certain races from growing coffee in particular areas.

The rule by the administrative agency was ultra vires and void for instead of controlling areas
where coffee could be grown by all persons generally, in complete disregard to its enabling
act, it sought to control races that could grow coffee in particular areas.

5
Kaluma, Judicial Review:Law Proceedure and Practice, 132.
6
[1951] KLR
Procedural ultra vires
As enunciated by legal scholar Dennis Galligan, “If justice is the first virtue of law… then
procedural justice is an essential element in its attainment.” Procedure goes in tandem with
the use of substance.

When a statute authorizes a body to undertake a certain task, it is very likely that it will also
stipulate the procedure to be followed in executing the task. When this happens, the
implementation of the task will be null and void if the prescribed procedure is not adhered
to.7

Where no procedure is explicitly prescribed by the enabling act,

I. The rules of natural justice

II. The demands of due process
III. Good faith and fairness
IV. Need to comply with the principles of good administration

Will be implied an applied in the decision making process of the administrative agency.

The leading authority on the principle of procedural ultra vires is the decision of Lord Reid in
Anisminic Limited v Foreign Compensation Commission8 where he said,

“… There are many cases where, although the agency had jurisdiction to enter on the inquiry,
it has either done or failed to do something in the course of its duties which is of such a
nature that its entirety of execution is a nullity.”

In Kenya procedural ultra vires have been used time and again as a platform for the review of
administrative executives. In considering the effect of procedural irregularities, courts usually
draw distinction between mandatory and mere directory procedural requirements.9

Mandatory procedural requirements must be strictly adhered to by the authorities in question.

Failure to do so renders the resultant act or decision invalid and open to being squashed by
courts.

In Irungu Kangata and others v University of Nairobi,10 the procedure by which the then
Senate Disciplinary Committee (SDC) was formed did not conform to procedure. The court

7
Ibid, at 136
8
[1969] 1 ALL ER 208
9
Kaluma, Judicial Review:Law Proceedure and Practice, 137.
10
Misc. Civil Application No. 40 of 2001.
upheld the need for scrupulous compliance with mandatory procedural requirements saying
that if a statute prescribes, or statutory rules or regulations prescribe, the procedure to be
followed that procedure must be observed.11

In contrast, a directory procedure merely serves as a guide, the non-observance of which does
not render the resultant provision invalid. Though the lines between the two can at times be
hazy, especially where the enabling act does not define them from the wording of the statute,
court tend to rule that the more important a procedural requirement is the more likely it is that
it will be held to be mandatory.

2. ERROR OF LAW (ON THE FACE OF THE RECORDS)

The origins of error of law on the face of the records are traceable to the origins of the
prerogative order of certiorari.

Error is apparent on the face of the record if it can be ascertained merely by examining the
record without considering any other evidence. As such, the error must be

I. Self-evident
II. Patent
III. manifest

Error of law draws authority from the Fair Administrative Action Act section 7 2 (d);

“A court…may review an administrative action or decision if…the action or decision

was materially influenced by an error of law”.

At this point, it would be folly to proceed without considering certiorari, even at a glance.

Certiorari is designed to prevent abuse of power. Its purpose is to ensure that an individual is
given fair treatment by the authority to which he is subject. When issued the order of
certiorari brings up to the high court a decision of an inferior court, tribunal or a public
authority or other decision made to be squashed. Certiorari is only concerned with the
decision-making process and only issues when the court is convinced that the decision
challenged without or in excess of jurisdiction, in breach of the rules of natural justice or
contrary to law.12
11
ibid
12
Lumumba, Judicial Review in Kenya, 90.
This is the main remedy where there is an error on the face of a record is certiorari. The
reason is that, unlike other grounds, a decision containing an error on its face is valid until
squashed by certiorari.13

Though foreign, the case of R v Northumberland Compensation Appeal Tribunal ex parte

Shaw14 makes for a perfect illustration of the application of error of law in judicial review.
Here, a former employee claimed compensation on the termination of his employment. Under
the relevant regulations, the tribunal was required to assess the compensation payable by
aggregating two periods of employment. In its decision the tribunal stated that of the two
periods of employment, only the second period should be taken into account. As the error
appeared on the face of the order by the tribunal, the decision was promptly, squashed.

A significant consideration in determining an error of law on the face of the records is that it
must not require an in-depth analysis or a long-drawn process of reasoning or argument to
establish. No-doubt this draws a self-evident criticism of the rule since what may be
considered by one judge as self-evident might not be so considered by another.15

The English case, Baldwin and Francis Limited v Patents Appeal Tribunal16 contains in its
obiter a worthwhile discussion on the difficulties on applying the test of error of law.

3. JURISDICTION ERROR
Under the umbrella of administrative law, jurisdiction encapsulates the legal authority of an
administrative agency to make binding decisions.

All administrative authorities must have competent jurisdiction in any matter that they elect
to make a decision, for the resultant ruling to be valid and binding in law

Jurisdiction error arises when an administrative agency erroneously attempts to exercise a

jurisdiction which it does not possess or declines to exercise one which it does. Judicial
review will lie where an inferior court or tribunal or administrative agency has acted without
or in excess of its powers.17

13
ibid
14
[1951] 1 KB 711
15
Kaluma, Judicial Review:Law Proceedure and Practice, 160.
16
[1959] 2 WLR 826
17
Lumumba, Judicial Review in Kenya, 22.
Jurisdictional error is best explained in the previously mentioned case of Anisminic Limited v
Foreign Compensation Commission.18 Here, we will examine the case in greater detail, to
fully grasp its implications.

Anisminic was an English company which had owned a mining property in Egypt. As a result
of the Suez crisis (Israel’s invasion of Egypt), the property was occupied by Israeli forces and
then seized later by the Egyptian government. Anisminic received £0.5 million from a
compulsory “sale” of its property to an Egyptian organization called TEDO. Under a treaty,
the Egyptian government paid the UK government £27.5 million in compensation for
property claims by UK nationals. The FCC was the body empowered to manage this fund, in
accordance with the Foreign Compensation Act of 1950. It was part of their empowering act
that, the FCC “shall treat a claim…as established” if satisfied that the claimant was the
“owner” of the relevant property or the “successor in title of such person”.

The FCC rejected Anisminic’s claim on the basis that TEDO was its “successor in title”, and
as such it was not of British nationality and so the claim did not comply with the terms of the
relevant aforementioned legislation. The House of Lords held that the FCC had made an
erroneous inquiry, departed from its mandate and made a decision outside its “permitted
field”.

In Kenya an illustration of Jurisdictional error comes to light in the recent case of Yusuf
Gitau Abdallah v Buildings Centre Limited (K) and 4 others19. The petitioner in this case filed
the matter in the high court while the matter was still going on at the Industrial Court. The
question was whether this court had jurisdiction to either admit or even hear him.

The petition was struck out since the Supreme Court lacked jurisdiction to deal with the
matter. The court relied on precedent Samual Kamau Macharia and another v Kenya
Commercial Bank and 2 others (2012) which stated;

“A court’s jurisdiction flows from either the constitution, legislation or both. Thus a court of
law can only exercise jurisdiction as conferred by constitution or other written law. It cannot
arrogate to itself jurisdiction exceeding that which is conferred to it by law.”

In such cases of jurisdictional error, the court may be called upon to ensure that the body
concerned;

18
[1969] 2 AC 147
19
Petition 27 of 2014 EKLR
 o If it failed to exercise jurisdiction which it has, is compelled to do so by way
of mandamus
o If the body did not have jurisdiction, the resulting jurisdiction is squashed by
way of mandamus.20

4. ERROR OF FACT
Facts are the heart of all decisions.

They are integral to the making of decisions and the legitimacy of a decision in dependent
upon the correct appreciation and interpretation of facts.

Error of fact may therefore arise in cases where a tribunal is unreasonable and exercises
discretion in a manner that does not give due regard to the factual circumstances of the case
at hand.21 Such a decision, based on an error of fact would be ground enough for judicial
review to be pursued.

There exist two categories of error of fact

I. Facts which an authority has to determine in order to resolve the dispute

before it
II. Facts which must exist before an authority can exercise jurisdiction in a matter
also known as jurisdictional facts.

To put succinctly, ‘The existence of jurisdictional facts is a condition prescient for the
assumption of jurisdiction by a body over a dispute.’22

Mounds of controversy surround the use of these two types of facts. It could be argued that
only those errors that have as their conclusive effect the denial or destruction of a tribunal’s
jurisdiction would bring its decision within the purview of judicial review.23 In our group
discussions we have found favor for this argument rather than the other which stipulates, that
all errors should be held to account. It is our strong conviction that this would go a long way
to restricting the very discretion legitimately conferred upon public bodies by parliament.

20
Lumumba, Judicial Review in Kenya, 23.
21
Ibid at 25
22
Kaluma, Judicial Review: Law Procedure and Practice, 162.
23
Ibid at 162
Remember, judicial review is founded not on the merit of a decision (it is not an appeal),
rather it is an analysis of how the decision was reached. The ground of error of fact without a
doubt gets treacherously close to voiding this statement and turn judicial review to an appeal
on the merits.

Where the existence or non-existence of a fact is left to the judgement and discretion of a
public body, it is the duty of the court not to interfere with the agency to whom parliament
has entrusted the decision-making power, unless it is evident that the public body has acted
irrationally.24 Then and only then, must the court intervene.

Judicial Review is firmly entrenched in our Legal Systems, not for lack of import but rather
by the impact of the grounds on which judicial review is based. It is an essential corollary to
administrative law whose relevance is etched into stone.

BIBLIOGRAPHY

Administrative Law: Migai Aketch

Administrative Law: Henry William Rawson Wade

Administrative Law: David Foulkes

Lumumba, P.L.O. (1999). An outline of Judicial Review in Kenya. “University of Nairobi.

Judicial Review: Law Procedure and Practice, Peter Kaluma, LawAfrica, 2nd Edition (2012)

24
Ibid
UNIVERSITY OF NAIROBI

ADMINISTRATIVE LAW

GPR 213

GROUP 8