[ADMINISTRATIVE LAW-II] 2013
METHODS OF GETTING REDRESS
 Judicial review
 Appeal
 Appointing authority
 Sue
What informs basis for choosing better option?
 How fast will one when get a remedy
 The best remedy
 The client’s interests
 The costs
 Which is legally available
 Procedure involved in each process
ADMINISTRATIVE TRIBUNALS
Quasi judicial bodies set up to settle certain types of disputes.
 Regulate certain activities
 Disputes between two individuals
 Disputes between government/public body and individuals
Land tribunal, staff tribunal (university and tertiary institutions act), Court
martial, Valuation courts under the LG act, disciplinary committee of the
local council……………
Look at the character and nature of its activities.
 An administrative tribunal should be established under an act of
parliament or subsidiary legislation. For example the industrial
court is established under the labor disputes arbitration and
settlement act.
 Its membership must also be clearly established under the law. The
industrial court has 5 members. The chief judge (not chief justice),
an independent member and workers’ representative. Such
membership represents expertise, interest groups and neutrality.
 Must have specific functions. They have to specify in the enabling
law. The industrial court’s jurisdiction is in settling labor disputes.
2 SECOND YEAR-SEMESTER ONE| [Type the company name]
Such involving labor unions, terms and conditions of work, social
and economic interests of workers.
 Procedures and rules of evidence. They tend not to rely on the
established rules and procedure. They tend use more friendly rules
of procedure.
 They do not necessarily give judgments. At times they give an
award.
 The right of appeal in tribunals in the enabling law.
Advantages of tribunals
 Cheap
 Save time
 Not bound by the rules of precedence. They look at each
case on its own merits.
 Cases are handled with a considerably high degree of
expertise and technical knowledge.
 User friendly procedures. Do not regard technicalities.
 Take into account the interests of the stakeholders.
 They tend to promote ‘reconciliation’ as opposed to
‘winner takes it all.’
APPEAL
It’s a request that an earlier decision which has been made be reversed in
favor of the appellant.
There must be an aggrieved party who alleges that the earlier decision was
wrong. Appeals can only succeed where the complainant proves the
following circumstances;
1. Appeals are creatures of statute. The appellant must show that the
right of appeal exists under some written law. Therefore, there is
no automatic right of appeal and the right does not arise simply
because the person is aggrieved. Karimari v Embu (19670 E.A 246.
2. There must be a decision and finally determined.
3. Appeals must seek reconsideration of the merits of an earlier
decision.
 [ADMINISTRATIVE LAW-II]
Appeals may however also consider cases in their own merits by
receiving fresh evidence Kenya aluminium v Ministry of agriculture.
An appellate can reach the following decisions;
 Reversal of the earlier decision
 Uphold an earlier decision
 Can hear new evidence and give its own decision
 It can also order for a re-examination of the case by the lower
court
4. An appeal can only suffice where there are specified grounds of
appeal.
5. Appeals are time bound (30 days). In case of it goes beyond that,
the appellant has to prove that something beyond his control
prevented him from appealing in time.
6. To appeal, the appellant must have a locus standi.
7. Appeal in the correct format that is provided for under the law.
Differences between judicial review and right of appeal
 Judicial review is available unless it is limited by statute
 Right of appeal is a creature of statute.
 Right of appeal arises when the parties are not satisfied
with a court’s decision. Appeals contest the merits of a
decision whereas judicial review is a process about
contesting the decision of administrative personnel.
 As for appeal, the statutory instrument will provide
specific grounds for the action whereas judicial review
it’s not the case.
 Appeals may be available for non-judicial bodies whereas
judicial review is only available in the high court.
 Judicial review leads to public law remedies like certiorari
and mandamus while in appeal one seeks reversal of an
earlier decision.
3 SECOND YEAR-SEMESTER ONE| [Type the company name]
2013
 Appeals can only be available within specified time but
judicial review may be rejected even within the time
period even when someone has the right grounds. Such
situations include when the applicant has not exhausted
the local remedies. One can not apply for judicial review
if there is an option of appeal and tribunal.
GROUNDS FOR JUDICIAL REVIEW
In Council for civil service union v Minister of public services the grounds
of judicial were listed to be thus;
 An illegality/ substantive ultra vires
 Procedural ultra vires
 Abuse of discretionary powers/ irrationality
Public officials are given public powers on the understanding that they will
exercise the powers within the ambits of the law. Power must be exercised
by the proper authorities and acting intra vires means acting within the
enabling law and other instruments of authorization.
One can tell whether somebody is acting intra vires by looking at the;
 constitution
 Policy.
A person acts ultra vires
Laon (U) ltd v URA No. 21 2008
His worship Bwiire v AG No. (2009)
Joshua v URA No. 24 2007
Owor v Gulu university No. 18 2008
 [ADMINISTRATIVE LAW-II] 2013

PROCEDURAL ULTRA VIRES 3. Observing principles of natural justice

The necessity of procedure;
Discretions are normally given to public officials who are expected to act
 Promote transparency in systems. judiciously. However, in many cases they abuse them and the law comes
 Promote fairness/ prevent bias into control the exercise of those powers.
 Promote consistency and uniformity.
 Unreasonableness
Requirements  Where discretion is hinged on irrelevant consideration
 Where power is used for improper purposes
 Consultation  Acting without evidence while exercising discretion
 Gazetting in promulgation  Using discretion to achieve improper purposes
 Anticident publication  Negligence
 Approval  Fetter of discretionary powers
 Laying before parliament  Failure to give reasons
 Inspection  Bad faith

A directory requirement is one that shows what an ideal situation should

be.
“The exercise of discretion must be a real exercise of discretion. If in a
Whether a particular procedure was an accepted practice statute conferring discretion there is profound expressly or by implication
matters which the authority exercises discretion or to have regard to, then
Mwangi v R in exercising discretion, it must have a guard to those facts. Conversely, if
the nature of the subject matter and the general interpretation of the act
 The court will look at whether the procedures affected the rights of make it clear that certain matters will not be germane, then the authority
the complainant or any other person. must disregard those irrelevant collateral matters.”

Re; Gymkhana club

ABUSE OF DISCRETIONARY POWERS
Words that show discretion normally include; The rules of admission made it difficult for Africans to be members of the
club.
 In his/ authority’s judgment
 As the authority may decide Fernandes v Kericho

Contrary to the wording, the courts have decided that discretions are never License was denied to the Fernandes on the grounds that he was not a
absolute and that parliament never intends to give absolute powers and that Kenyan and that the need to promote Africanization of commerce. Court
discretionary powers must be exercised judiciously. held that the authority had misused its discretionary powers.

Elements of judiciousness include;

1. Acting with the facts Unreasonableness

2. According to the law

4 SECOND YEAR-SEMESTER ONE| [Type the company name]

 [ADMINISTRATIVE LAW-II]
A public official is expected to exercise discretionary powers with a degree
of reasonableness. According to Lord Denning, a reasonable man is a man
on a street. Reasonableness may depend on cultural issues, the costs
involved in an operation of determining reasonableness, timing, and the
place, how it is done among others.
Metropolitan asylum district v Hill The local authority was given powers to
construct hospitals. They used the power to construct a health clinic that
became a nuisance. Court decided that it was an unreasonable exercise of
the power.
Negligence
All pubic authorities have a legal duty to avoid harm to people who come in
contact with their activities. The tort of negligence is actionable and leads to
the award of damages. The general principle is that an action does lie for
doing what the legislature authorize if done negligently. In the case of
Metropolitan asylum, the judge said that discretion does not permit the right
to violate rights. There are many cases where public authorities have been
held liable where they have acted negligently.
James v commissioner of transport where railway authorities had
discretionary powers to put in place safety measures as they deemed fit.
They did not take the appropriate measures and as a result, they were held
liable for an accident which resulted from their negligence.
Negligence can arise as a result of vicarious liability. Scope of employment
is important in such cases.
Fetter of discretionary powers
This arises where the relevant authority either refuses to exercise the
discretion. It may arise in the following specific circumstances.
 Acting in accordance with policy
 Acting under dictation
 Contract
 Transfer of powers
Southport corporation v Birtedale, that if a person or public body is
entrusted by the legislature with certain powers and duties expressly or
5 SECOND YEAR-SEMESTER ONE| [Type the company name]
2013
impliedly for public purposes, those persons or bodies cannot divest
themselves of those powers. They cannot enter into any contract or take any
action incompatible with the due exercise of their powers or discharge of
their duties. The judge also emphasized that a public officer vested with
discretion cannot bind himself ab cante as a manner in which he will
exercise discretion. That would as to the future be a surrender of discretion
Policy
Policy is an agreed framework of carrying a public function. It may be a
national, regional or international level.
Public authority may give account to policy considerations while exercising
discretion. However, the law does not condone over adherence on policy
which results into failure to take discretion.
Kenya aluminium v Minister of agriculture, one should take policy into
consideration but should not fail to exercise discretion.
Mandwa v City council of Nairobi
Dictation
Where the authority has discretion and does not make a decision on his
judgment but directed on what to do by another authority or enforced act in
a particular way because of prevailing circumstances like threats.
Contract
A contract can take away discretionary powers granted by law. In estate
Akright v the king a contract or any agreement cannot take away
discretionary powers of an authority.
Acting without evidence
Munene v republic
Munene was a medical doctor and was accused of professional misconduct,
found guilty and by way of punishment he was suspended for 2 years and
the tribunal that tried him reported that they were giving him a harsh
 [ADMINISTRATIVE LAW-II] 2013

punishment because there were very many cases of a similar nature and the
harsh punishment would deter others.

He appealed against the decision since it was based on available evidence.

The court agreed with him because there had been previously one similar
incident.

Bad faith

No reasons for action

6 SECOND YEAR-SEMESTER ONE| [Type the company name]