Judicial control of the executive in KENYA

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 a party aggrieved an administrative body can find redress.

Judicial Review refers to the examination of the actions or inactions of public bodies the High Court.
Judicial Review is an examination of the manner in which a decision was made or an act done or not done. This definition is found in Chief Constable of North Water Police V. Evans

The purposes of Judicial Review from that definition are as follows:
1. To prevent excessive exercise of powers administrative bodies and officials;
2. To ensure that an individual is given fair treatment Administrative authorities;
3. To keep Administrative excesses in check and also to provide a remedy to those aggrieved as a result of excessive exercise of power administrative bodies.

The primary legal basis of Judicial Review is the Law Reform Act.1 From the wording of
Section8 of the Law Reform Act, one can only apply for Judicial Review in the High Court and not the Magistrates Courts.

Grounds of judicial review
By looking at the grounds of judicial review, we will be studying the circumstances in which an aggrieved person may petition the High Court for Judicial Review.

Courts of Law will intervene in public administration in one or more of the following circumstances i.e. courts of law will review actions of administrative bodies in one or more of the following circumstances:

1. When a body acts ultra vires;
2. Unreasonableness;
3. When there is jurisdictional error;
4. When there is an error of law;
5. When there is an error of fact;
6. When there is an abuse of power;
7. When irrelevant considerations governed the making of a decision;
8. When there is bias;
9. When there is unfair hearing;
10. When there is procedural flaw;
11. When there is irrationality
12. When a public official or body acts in bad faith;
13. When there is breach of the principles of natural justice.

There are some overlaps in these grounds e.g. what amounts to procedural flaw may at the same time amount to ultra vires. In actual practice any one of the grounds will entitle an aggrieved party to apply for judicial review and in actual practice circumstances occasioning judicial review will involve one or more of those grounds.

One does not have to have all the 13 circumstances to apply for judicial review. Any one of the grounds will suffice and the list is not exhaustive.

1. DOCTRINE OF ULTRA VIRES

The doctrine of ultra vires is a legal doctrine. In the English Legal System judicial control of administrative agencies is based on the doctrine of ultra vires. This is the doctrine on the basis of which the courts will interfere or intervene in matters of public administration. Ordinarily courts would not interfere.

What is ultra vires
It simply means “beyond the powers” so that if ultra vires is the basis in which courts will interfere or intervene on matters of public administration then the point is that courts will intervene on matters of public administration if the administrative bodies have acted beyond the powers that have been conferred on them.

The essence of this doctrine is that administrative bodies must act within the powers granted them statutes. They must also act within the requirements of common law.

Administrative bodies must act only within the powers that they have been given the statutes. They must also recognise the limits imposed on them the statutes. The exercise of powers administrative bodies often affects the rights of citizens and for this reason it is necessary that these powers be exercised only with accordance with the statute granting the power so that people do not suffer. Limits are placed statutes to ensure that powers conferred to administrative bodies do not end up causing suffering to citizens.

For these reasons any act of a public administrative body that is outside the limit of law has no legal validity because it is Ultra Vires.

The term Ultra vires can cover a wide range of actions undertaken in excess of the law or in excess of the powers granted.
For example an administrative body acts ultra vires if that body does an act which it has no authority to do. The second example is where an administrative body in the process of exercising the powers, it abuses those powers, which amounts to acting ultra vires. There are also cases where bodies act ultra vires because in the cause of exercising those powers that are authorised, they have failed to follow prescribed procedure.

Types of ultra vires
i. Substantive Ultra Vires.
ii. Procedural Ultra Vires.

i. substantive ultra vires
Substantive ultra vires is acting in excess of powers with regard to matters of substance. This would include for example an administrative body acting beyond what is authorized to do.
Substantive ultra vires includes the following cases:

1. Exercising power in excess of statutory limits;
2. Acting in excess of jurisdiction;
3. Breach of the principles of natural justice; in this case failure to give notice of hearing to a concerned party. For example would amount to breach of principles of natural justice and that falls under substantive ultra vires

ii. Procedural ultra vires
These are cases where administrative bodies fail to follow prescribed procedure. They also include cases where an error occurs in following the procedure.

Whereas we do have procedure prescribed in statutes, there are also matters of procedure that are not in the statutes but they are applicable under common law and this is where we find the procedural requirements that fall under the principles of natural justice.

A person has to be given notice of a hearing of their case; this is one of principles of natural justice. This is in order that the person affected must be made aware of what is going on and be given an opportunity to raise any objection that they might have. They must also have the chance to defend themselves.

Courts are mandated to use or to apply ultra vires doctrine to invalidate actions of public bodies. If a body has done something that amounts to procedural ultra vires, the court will be prepared to apply the doctrine of ultra vires to invalidate that action.

The effect of finding that an act or a decision is ultra vires is that it is invalidated. It means that the court will declare that act or decision null and void. Consider the case of White and Collins v. Minister of Health.

This case concerns the exercise of power of compulsory purchase of land. In this case a housing authority was granted power under the Housing Act of 1936 to acquire land compulsorily for housing „provided that land did not form part of any park, garden or pleasure
ground.‟ The Housing Authority went ahead and acquired land or purported to acquire land that was a park. After they acquired this land, they sought and obtained confirmation of their acquisition from the Minister of Health (the one responsible for giving confirmation of such services). The parties brought a suit seeking to have the purchase order invalidated on the grounds that the order to purchase this land was Ultra Vires because the land was a park and there was a statutory restriction on the purchase of any land that was a park. The court quashed the order for purchase as well as the purchase declaring it null and void

2. UNREASONABLENESS
One of the things the court considers, in determining unreasonableness is whether a public body has considered or taken into account any matter that it ought not to take into account.

Another thing that the court will consider is whether a public body has disregarded any matter that it ought to take into account.

In R v. Ealing London Borough Council Ex parte Times Newspapers Ltd, the council was held to be unreasonable in refusing to provide certain Newspapers to their libraries because the council did not agree with the Newspapers Proprietors on political grounds. The court held that the council was unreasonable in refusing to provide their libraries with certain Newspapers.

3. JURISDICTIONAL ERROR
Jurisdiction means the scope or area in which a body is allowed to act. It includes territorial limits.

Where there is an error it means:
1. That an administrative agency has acted without jurisdiction i.e. they have acted over matters which they have no authority to act.
2. They have acted within jurisdiction but have gone beyond or exceeded their limits.
This can happen:
• When a body erroneously exercises power or authority over a matter that is outside of its territorial limits.
• Where a body legislates over a matter that falls outside of the matters it is authorised to legistate over.
• Where an administrative body declines to exercise jurisdiction to hear and decide a case or to legislate over a matter over which it has jurisdiction to hear or decide or legislate over. (the Administrative body has the authority to do something but it declines to do it.)
• It 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.

In case any one of these things occurs and a person is aggrieved, the aggrieved person can apply to the High Court for Judicial Review on the ground that a public body has committed jurisdictional error.
4. ERROR OF LAW
An error of law is a condition or an act of ignorance, negligence or imprudent deviation or departure from the law.

Ignorant departure would include a situation where an administration official is ignorant of the law. If the Minister of Local Government for example has no idea that he cannot sack an elected mayor, this is an act of ignorance.

Negligence would be where an administrative body fails to do what the law provides and in that case they have failed to look up the law to see what it provides.
This can result from a number of things:

1. Failure to ascertain what the law says about a particular matter;
2. misconstruction of the law;
3. Misinterpretation of the law;
4. Blatant disregard of the law;
5. Misunderstanding of the law; or
6. Misdirection on the law (this involves a situation where an administrative body seeks direction on the law) i.e. if the head of civil service seeks direction from the AG or from the Chief Justice or Minister for Justice and Constitutional Affairs and they give incorrect directions on the same, this is misdirection.

5. ERROR OF LAW ON THE FACE OF THE RECORD
In all the above cases, it is usually said that there is an error of law on the face of the record.
An error of the law on face of the record is an error which may be ascertained an examination of the record of proceedings without recourse to any evidence. Just looking at the record of proceedings, one can tell that the law was not followed.

The result of error of law is that the decision made and all the acts done in error of law are invalidated upon judicial review because they are illegal.

In R v. Northumberland Compensation Appeals Tribunal ex parte Shaw a former employee of an administrative body claimed compensation on termination of his employment. Under the applicable regulations the tribunal was required to assess compensation payable aggregating two periods of employment i.e. the law was saying that in computing compensation one would have to aggregate two periods of employment. In its decision the tribunal stated that of the two periods of employment, they would take into account only the second period. Upon application for judicial review this decision was quashed because of the error of law that had been committed. The court found that this amounted to an error on the face of the record and the decision was quashed. The court issued an order of certiorari which involves the production of proceedings of the tribunal to the High Court so they can be quashed.

6. ERROR OF FACT
It is important to note that facts are integral to the making of a decision. The validity of a decision depends on the proper appreciation and interpretation of facts.
An error of fact occurs where there has been an act or a condition of ignorance, negligence or imprudent deviation from facts. This may occur from a number of facts:

1. Where facts have not been properly appreciated;
2. Where facts have not been properly interpreted;
3. Where there is an incorrect finding of facts;
4. Where irrational conclusions are made from facts;
5. Where a decision is made without giving due regard to the factual circumstances of the case at hand.

The effect of error of facts is that it renders a decision null and void.

7. ABUSE OF POWER
Abuse of power includes cases where the power and authority given public bodies have:

1. been put to a wrong or improper use;
2. been used so as to injure or to damage;
3. been misused;
4. Been used corruptly.

If the court finds that an administrative body has abused its power or his power, any act done or decision made will be invalidated.

8. IMPROPER EXERCISE OF DISCRETION
An administrative body has the authority to exercise discretion whenever the limits of its statutory authority leave it to decide between two or more causes of action or inaction.

There will have to be a statutory authorisation to do something but the statutory provisions does not completely specify what one is authorised to do. The exercise of discretion is an important aid to the exercise of statutory powers.

Whenever circumstances give rise to the exercise of discretion:
1. Discretion must be exercised properly;
2. Discretion must be exercised reasonably;
3. Discretion must be exercised the proper authority only and not a delegate;
4. Discretion must be exercised without restraint;

Certain circumstances will give rise to improper exercise of discretion which includes:

1. Exercising discretion for improper motive;
2. Where power to exercise discretion is delegated to a person who is not charged with the responsibility in question;
3. Where discretion is exercised so as to serve self-interest.

Consider Fernandes V. Kericho Liquor Licensing Court. The case concerns the authority given to Kericho Liquor Licensing Court to grant licences. In this case they decided they were only going to give liquor licences to Africans. The Court ruled that they had exercised their discretion improperly deciding to issue licences only to Africans.

9. IRRELEVANCY
Irrelevancy occurs in two situations:
1. Where a decision making body considers a matter which it ought not to consider in arriving at a decision; e.g. if on the basis of gender a licence is denied.
2. Where an administrative body disregards something which it ought to consider in making a decision.

10. BIAS
It is a predetermined tendency to favour one outcome, one outlook or one person against another. It involves acting partially i.e. acting favourably to one side. Whenever an allegation of bias is made, a reviewing court will investigate whether there is an appearance of partiality. A reviewing court will evaluate whether there is a tendency of one side to favour one person.

There are certain principles that will guide the court in determining the presence of bias.

(i) The Real Likelihood of Bias;
Circumstances in which the court will conclude that there was a real likelihood of bias include cases where the decision maker has an interest in the matter under consideration. Interest may be pecuniary, interest may also be adverse.

(ii) The Real Danger Test:
This is another of the tests that the court will apply in determining the presence or absence of bias. The consideration is whether there is a real danger that a public official or body participating in a decision will be influenced a personal interest in the outcome of a case.

The question to ask is how significant the interest is and how closely or remotely related to the issue it is. In the real danger test the consideration is whether there is a real danger that an official participating in a decision will be influenced a pecuniary interest and how closes or remote it is to the matter decided.

(iii) Actual Bias:
There are cases where in the absence of the real likelihood of bias, pecuniary or other interests and the real danger of partiality, bias does actually occur and in this situation the test is whether there was actual bias.
In cases where there is a likelihood of bias, for example in cases where members of the decision making body have a pecuniary interest in the matter to be considered, they must disqualify themselves from taking part in making that decision.
If they do not, this will give rise to bias and the decision made can be invalidated upon review. Invalidation is way of quashing the decision.

11. UNFAIR HEARING
Administrative bodies are bound to give a fair and proper hearing to those who come before them. Often the statutes will prescribe the procedure for hearing indicating how concerned parties are to be heard.

In such statutory provisions, the duty to grant a fair and proper hearing may be implied. In the absence of statutory provisions setting forth procedure for hearing, common law rules regarding fair and proper hearing will apply.
Where a public body makes 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.

In Neil v. North Antrim Magistrate’s Court it was suggested that even if a right decision is arrived at a party may still petition the court 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. A person must have a chance to be heard.

It is important to note that if a party petitions the court for judicial review on the ground that he was not granted a fair hearing and should the court find that this person was not given a fair hearing, the court will declare the decision null and void.

12. IRRATIONALITY
Irrationality is derived from the word irrational. This means that if a decision making body or an administrative body acts irrationally, whatever that body does or whatever decision it makes can be invalidated upon judicial review.

Irrationality means conduct beyond the range of responses reasonably open to an administrative body. In 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 objective test.

13. BAD FAITH (Mala Fides)
If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather hard to define bad faith but it covers a wide range of circumstances including malice, corruption, fraud, hatred and similar things. It also includes cases of vindictiveness.

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