COURSE OUTLINE

• Development of administrative law in Kenya.( Legal framework)

• Categories of administrative functions
• Judicial control of the executive and the legislature
• Judicial Review, Purposes of judicial review,Origins of judicial review in
Kenya, Grounds of judicial review,
• Principles of Natural justice
• Constitutional principle, fundamental rights and freedoms of
individuals
DEFINATION OF ADMINISTRATIVE
LAW.
• law relating to public administration
• It relates to the performance, management and execution of public
affairs and duties. It is concerned with the way in which the
government carries out its functions.
• The primary purpose of administrative law, therefore, is to keep the
powers of government within their legal bounds, so as to protect the
citizen against their abuse.
• It deals with organisation and power of administrative and quasi
administrative bodies with emphasis on the manner of exercise of the
power.
 SOURCES OF ADMINISTRATIVE;

 CONSTITUTON
 ACTS OF PARLIAMENT
 DELEGATED LEGISLATION.
 JUDICIAL PRECEDENT
 REPORTS OF COMMITTEES AND LAW COMMISSION
ADMINISTRATIVE QUASI-LEGISLATION.
REASONS FOR EXPANSION OF ADMINISTRATIVE LAW;

• The rapid growth of administrative law during the twentieth century

owes much to the change in the concept of role and function of the
modern government
• It is demanded by the people that the government must solve their
problems rather than merely define their rights.
• The regulation of the patterns of ownership, production and
distribution is considered the responsibility of any good government
to ensure the maximum good of the maximum number. This again has
led to the growth of administrative process and administrative law.
REASONS FOR EXPANSION OF ADMINISTRATIVE LAW;

• A welfare state has necessarily to undertake legislation on an ever widening

front, if the ultimate aim of a socialistic pattern of society operating within
the domain of the rule of law is to be evolved by  democratic process.
• The inadequacy of the traditional type of judicial system to give that quality
and quantity of performance which is required in the twentieth century for
the functioning of welfare and functional government is the biggest single
factor which has led to the growth of administrative process and law. Like
medicine, in law there is a shift from punitive to preventive justice.
Litigation is no more considered a battle to be won but a disease to be
cured. Inadequacy of the traditional type of judicial process to respond to
this new challenge has led to the growth of administrative adjudication. 
CONSTITUTIONAL VS.
ADMINISTRATIVE LAWS;
CONSTITUTIONAL LAW ADMINISTRATIVE LAW

Constitutional laws set forth the framework of
government, its responsibilities to its people, and its
limitations, as all of these appear in the Constitution
itself and as those provisions may be interpreted by
the courts.
Administrative laws are the provisions which regulate
a specific governmental function and the agencies
which administer those functions
DEVELOPMENT OF
ADMINISTRATIVE LAW IN KENYA.
• Administrative law as practiced in Kenya has its origin in the laws of England
• Under article 47. In Kenya, the constitution now guarantees the right to fair administrative
action as part of rights and fundamental freedoms under the bill of rights.
 Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
 If a right or fundamental freedom of a person has been or is likely to be adversely
affected by administrative action, the person has the right to be given written reasons
for the action.
Parliament shall enact legislation to give effect to the rights in clause (1) and that
legislation shall--
Provide for the review of administrative action by a court or, if appropriate, an
independent and impartial tribunal; and promote efficient administration.
CATEGORIES OF ADMINISTRATIVE
FUNCTIONS

• Ministerial functions

• Administrative legislative function

• Administrative functions

• Judicial functions

• Quasi-Judicial Functions(functions similar to the court)

ADMINISTRATIVE DECISION AND
RULE MAKING PROCEDURES;
N/B
JUDICIAL CONTROL OF THE EXECUTIVE AND THE
LEGISLATURE

• Administrative excesses must be checked through judicial

intervention.

• Judicial review is the most appropriate way by which remedies may

be provided against the excessive exercise of power by administrative
bodies.
Delegata potestas non potest delegari
• a principle in constitutional and
administrative law that means in Latin that "no
delegated powers can be further delegated."
Alternatively, it can be stated delegatus non
potest delegare ("one to whom power is
delegated cannot himself further delegate that
power")
JUDICIAL REVIEW( DEFINATION)

• This is the means by which High Court judges scrutinize or examine

the manner in which a decision was made or an whether an act was
done or not. Further 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
most appropriate way that an aggrieved party aggrieved by an
administrative body can find redress.
• Judicial Review – Examining the Actions (inactions) of public Bodies by
the Courts.
PURPOSES OF JUDICIAL REVIEW

To prevent excessive exercise of powers by administrative bodies and officials

To ensure that an individual is given fair treatment by an administrative authority

To keep administrative excesses in check and also to provide a remedy to those

aggrieved as a result of excessive exercise of power by administrative bodies

To make sure that the rule of law is upheld.

JUDICIAL REVIEW IN KENYA

• In Kenya the birth of prerogative orders (prohibition, mandamus and

certiorari) came with the application of the colonial administration of

justice through a statute called “Administration of Justice

(Miscellaneous Provisions) Act of 1938

SECTION 8 OF THE LAW REFORM ACT PROVIDED AS
FOLLOWS;

• “That the High Court shall not whether in the exercise of its civil or
criminal jurisdiction issue any of the prerogative orders of
Mandamus, Prohibition or Certiorari”
• Section 8 (2) “in any case in which the High Court in England is by
virtue of the provisions of Section 7 of the Administration of Justice
(Miscellaneous provisions) Act of 1938 of United Kingdom
empowered to make an order of Mandamus, Prohibition or
Certiorari, the High Court of Kenya shall have power to make a like
order.
 
LEGAL BASIS OF PREROGATIVE ORDERS/JUDICIAL REVIEW

• Law Reform Act

• Civil Procedure Act

• Constitution of Kenya
GROUNDS OF JUDICIAL REVIEW

  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 an abuse of power;

When irrelevant considerations governed the making of a decision;

GROUNDS OF JUDICIAL REVIEW

When there is bias

When there is unfair hearing;

When there is procedural flaw;

When there is irrationality

 When a public official or body acts in bad faith;

When there is breach of principles of natural justice.

PRINCIPLES OF NATURAL JUSTICE

• 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 expressed in a statute;

they are supposed to apply in every case unless a statute expressly states that they will

not apply.
BROADLY THE PRINCIPLES OF NATURAL JUSTICE ARE
TWO;

Nemo Judex in causa sua – which means that procedures must be free

from bias.

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:
Rule against Bias;
The right to be heard;
Prior Notice;
Opportunity to be heard;
Disclosure of information;
Adjournment;
Cross examination;
Giving reasons;
 Legal Representation.
GENERAL DESCRIPTION OF
APPLICABLE PROCEDURAL RULES ;
• Under section 8 (1) of the Law Reform Act, the High Court has
inherent powers to issue the orders of prohibition and certiorari. The
application for Judicial Review must therefore be made to the High
Court.
• Application for leave The first step is to apply to the High Court for
leave to apply for Judicial Review. Application for leave is ex parte by
way of Chamber Summons. The Chamber Summons contains the
following particulars: A statement setting out the name and
description of the applicant; •The relief sought; •The orders sought;
and •Grounds on which the orders are sought.
GENERAL DESCRIPTION OF
APPLICABLE PROCEDURAL RULES
• The application must be accompanied by an affidavit verifying the facts relied
upon.
• Notice to the Registrar The law requires the applicant to give a notice of the
application for leave to the Registrar not later than the preceding day.
• Substantive application for Judicial Review Motion for Judicial Review Where
leave to apply for Judicial Review is granted, the applicant is required to file
the substantive motion for judicial review and apply for the orders for which
leave has been granted within 21 days from the date leave is granted.
• The application is by way of a Notice of Motion and it comprises of: •the
Notice of Motion itself; •a supporting affidavit and •the order seeking to be
quashed in certiorari
GENERAL DESCRIPTION OF
APPLICABLE PROCEDURAL RULES
• Service of Motion, Statement and Affidavits The motion must be
served on all persons directly affected by the application so that they
may have an opportunity to be heard.
• Affidavit of service In order to ensure that all affected parties are
actually served with the application, the rules require that an affidavit
of service be filed before the notice is set down for hearing. The
affidavit should give full details regarding the names, place, and date
of service on all persons who have been served with the motion
• Hearing .
ASSIGNMENT ONE

CHALLENGES FACED ( JUDICIAL REVIEW)

ALTERNATIVE TO JUDICIAL REVIEW IN KENYA

ADVANTAGES AND DISADVANTAGES OF JUDICIAL

REVIEW.
COURT REMEDIES IN JUDICIAL
REVIEW
• There are only three remedies that the courts can grant for judicial review

• Certiorari

• Prohibition;

• Mandamus
DISTINCTION BETWEEN APPEAL AND JUDICIAL REVIEW

• With an Appeal you can challenge the court’s decision by appealing it at

a higher court than the one that passed the verdict. An appeal is a plea
for the matter to be judged again. An appeal is requested to ask the
higher court to change the decision of the lower court. The decision of
the lower court can stay the same or the Higher Court can change it.
• A review is not a statutory right of the people and is at the discretion of
the court, which can reject the request.  A review is applied for at the
same court where the original decision was made and  is a request to
consider the legality of the ruling. A review is based on procedural
irregularity, impropriety, irrationality, and illegality.
CONSTITUTIONAL PRINCIPLE;

• A constitution is a public document which regulates the relations between

the state and its citizens as well as the relations between the organs of state.
• It expresses the agreed content of the political system by prescribing the
principles and the basic structure upon which the system is founded, and
sets out rules and procedures of settling disputes. In other words, the
constitution determines:-
The organization of the state
 The distribution of powers among the different organs of the state which
include the legislature, the executive and the judiciary
The relationship between the Government and its citizens
SUPREMACY OF THE
CONSTITUTION.
• The concept of the supremacy of the Kenyan constitution is captured in
Article 2 of the constitution. It provides that;
The constitution is the supreme law
The validity or legality of the constitution is not challengeable
Any act or omission in contravention of the constitution is invalid
It is binding upon all persons and state organs at all levels
State authority must be exercised as authorized by the constitution
Every person is obligated to respect, uphold and defend the constitution
Any attempt to establish a government without complying with the
constitutions requirement in doing so is unlawful.
IMPORTANT CONSTITUTIONAL
PRINCIPLES;
Fundamental Rights and Freedoms of the individual

Doctrine of Separation of Powers

Independence of the judiciary

Rule of law

Supremacy of the constitution

THE NATIONAL VALUES AND PRINCIPLES OF
GOVERNANCE( ARTICLE 10 OF THE CST)

Patriotism, national unity, sharing and devolution of power, the rule

of law, democracy and participation of the people;

Human dignity, equity, social justice, inclusiveness, equality, human

rights, non-discrimination and protection of the marginalized;

Good governance, integrity, transparency and accountability; and

Sustainable development.