Definitions:
Natural: Natural is being in accordance with or determined by nature i.e. based on the inherent sense of right and wrong.
Just: Means morally upright, correct, proper, good, merited deserved etc.
Natural Justice is the administration, maintenance, provision or observance of what is just, right, proper, correct, morally upright, merited or deserved by virtue of the inherent nature of a person or based on the inherent sense of right and wrong.
The 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 i.e. they are not expressed in a statute; they are supposed to apply in every case unless a statute expressly states that they will not apply.
Principles of natural justice are applicable in the absence of statutory provisions authorizing their applicability or their observance. Unless the application of principles of natural justice is expressly or impliedly excluded by statutory provisions these principles are always to be implied. It is to be implied that parliament has authorised the applicability and observance of the principles of natural justice in every case.
To which bodies do the principles of natural justice apply?
In Kenya these principles apply so long as a public body has power to determine a question affecting a person’s rights. The principles also apply to bodies in every case involving a question affecting a person’s interest.
Wherever there is a right there is an interest but not vice versa. Interest may include other things. Interest may be pecuniary interest or something else and does not necessarily have to be a right.
In Mirugi Kariuki v. The Attorney General,the court of appeal held that the mere fact that the exercise of discretion by a decision making body affects the legal rights or interests of a person makes the principles of natural justice applicable.
These principles apply to administrative bodies that are judicial, quasi-judicial legislative or administrative.
THE PRINCIPLES/RULES OF NATURAL JUSTICE
Broadly the principles are two
1. Nemo Judex in causa sua – which means that procedures must be free from bias.
2. Audi Alteram Partem – which means that no person should be condemned unheard i.e. 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:
1. Rule against bias
2. The right to be heard
3. Prior notice
4. Opportunity to be heard
5. Disclosure of information
6. Adjournment
7. Cross examination
8. Giving reasons
9. Legal representation
1. RULE AGAINST BIAS
In summary there can be bias when:
1. There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest;
2. Where short of a direct interest there is a reasonable appearance or likelihood of bias;
3. Where there is actual bias.
In R v. Hendon Rural District Council ex-parte Chorley, the court quashed the decision of a
Rural District Council allowing some residential property in Hendon to be converted into a garage and restaurant because one of the councillors who was present at the meeting which approved the application to convert the premises was an Estate Agent who was at the same time acting for the owners of the properties. The Court issued Certiorari to quash the decision of the council on the ground that the agent‟s interest in the business disqualified him from taking part in the council‟s consideration of the matter.
Concerning likelihood of bias, the case is Metropolitan Properties Ltd v. Lannon applies. The court quashed the decision of a rent assessment committee reducing rent of a certain flat because the chairman of the rent assessment committee lived with his father in those flats. In this case, the court said;
“… in considering whether there was a real likelihood of bias, the court does not look at the mind of the Chairman of the tribunal who sits in a judicial or quasi judicial capacity.
The Court looks at the impression which would be given to other people. Even if he was as impartial as he could be nevertheless, if right minded people would think that in the circumstances there was a real likelihood of bias on his part then he should not sit. And if he does sit, his decision cannot stand. Surmises or conjecture is not enough there must be circumstances from which a reasonable man would think it likely or probable that it would or did favour one side unfairly at the expense of the other”.
2. RIGHT TO BE HEARD
This is simply that a concerned person must be given a right to be heard. If an administrative body fails to give a concerned person the right to be heard, whatever decision it makes will be invalidated upon review. The case that illustrates the point is the case of David Onyango Oloo v.The Attorney General, where the Commissioner of Prisons purported to deprive Onyango Oloohis sentence remission to which he was entitled under the Prisons Act without giving him an opportunity to be heard. Quashing the decision, Justice Nyarangi stated;
“… there is a presumption in the interpretation of statutes that the rules of natural justice will apply. In this case the rule in question was the one concerning the right to be heard.”
3. PRIOR NOTICE
This rule requires that adequate prior notice be given to a person of any charge or allegation. It simply means that if an administrative body makes a charge it has to give a person against whom allegations have been made adequate notice before a decision is made. Prior notice must be served on the relevant party. The notice must contain sufficient detail to enable the person concerned to know the substance of any charge, allegation or action to be taken against him.
Again the case of David Onyango Oloo applies here. In that case the court also stated
“The commissioner of prisons at the very least ought to have done the following acts:
i. Inform the Appellant in writing in a language the Appellant understands the disciplinary offence he is alleged to have committed and the particulars of the offence;
ii. Afford the Appellant an opportunity to be heard in person and to fix reasonable time within which the appellant must submit his written answer.”
4. OPPORTUNITY TO BE HEARD
There is no settled rule as to whether hearing should be oral or written but in all cases one must be afforded a chance to present his case whether oral or written.
5. DISCLOSURE OF INFORMATION
A concerned party must be given all information which the decision maker will rely on to make his judgment. This rule requires that all allegations and reports bearing on a person‟s case must be disclosed to that person. Failure to do so is fatal to a decision.
In Ridge v. Baldwin the House of Lords held that the Chief Constable of Brighton who held an office, from which by statutory regulations he could only be removed on grounds of neglect of duty or inability, could not validly be dismissed in the absence of the notification of the charge and an opportunity to be heard in his defence.
This is one of the key cases in Judicial Review and disclosure of information.
6. ADJOURNMENT
Natural Justice requires that a party be granted adjournment of a hearing of a case if the exigencies require (it does not matter how guilty a person is, if exigencies arise, they must be accorded an adjournment by the administrative body and if they are denied an adjournment and a decision is given, the court will quash such a decision)
Please note that wrongful refusal to adjourn amounts to a denial of a fair hearing and will result in the quashing of a decision. This was stated in the case of Priddle v. Fisher & Sons. A heating engineer was denied an adjournment in a case he was supposed to be represented by a trade union representative. The decision of the court arising out of the proceedings in the absence of the applicant was held to be unfair.
7. CROSS EXAMINATION
An opportunity to cross-examine can only be availed if there is an oral hearing i.e. the rule applies to cases where there is an oral hearing. Whenever there is an oral hearing and a party requests to cross-examine, the affected party must be granted an opportunity to cross examine.
If an affected party requests to cross-examine but an opportunity is denied, the decision made can be voided on grounds of breach of principles of natural justice.
Please note that if a party does not ask for a chance to cross-examine, he is precluded from complaining.
8. GIVING REASONS
Progressively, courts are insisting on giving reasons for a decision as a component for natural justice. (If an administrative body denies you let’s say a licence, they must give you the reasons why failure to which you can petition the High Court for a review). In the case of Padfield v. The Minister for Agriculture Fisheries and Food (1968),Lord Reid stated;
“I cannot agree that a decision cannot be questioned if no reasons are given”.
It means that if no reasons are given a decision can be questioned.
9. LEGAL REPRESENTATION
This does not apply in every case but in suitable cases and suitable circumstances, the right to representation by a lawyer or some other person may be part of natural justice. For example in the Liquor Licensing Act, it allows for a person applying for a licence to be represented by an authorised agent in which case he becomes the legal representative before the court.
Where legal representation is necessary, authorised and is requested by a party the right to legal representation must be granted. If denied, a decision may be quashed on grounds of failure to observe the principles of natural justice.
Effect of breach of principles of natural justice
The effect of failure to comply with the rules of natural justice is that any decision or other administrative action taken is null and void and can be invalidated by the courts. Breach of principles of natural justice has been a good ground of judicial review.
Please note that breach of any one of the rules that we have discussed will give rise to judicial review.
Judicial review remedies
There are only three remedies that the courts can grant for judicial review
• Certiorari
• Prohibition
• Mandamus
Whether the courts will grant one of these rules depends on the circumstances.
1. CERTIORARI
The word Certiorari is a Latin word which simply means „to be informed‟. Historically it was a royal command or demand for information. The practice was that the sovereign who was the king or the queen upon receiving a petition from a subject complaining of some injustice done to him would state that he wishes to be certified of the matter and then he would order the matter to be brought up to him.
Ordering the matter to be brought up to him will include ordering that the records of the proceedings be brought up to the sovereign. The purpose of calling up the records was in order for the sovereign to quash any decision that has been made after acquainting himself of the matter in other words after being certified of the matter.
Currently, certiorari is an order to remove proceedings from an administrative body or an inferior court to the High Court in order to be investigated and if found wanting on any one of the grounds we studied including ultra vires, be quashed.
The order can issue against:
1. Administrative tribunals.
2. Inferior courts such as the industrial courts.
3. Local authorities.
4. Ministers of Government.
5. Miscellaneous public bodies exercising public functions.
In Majid Cockar v. Director of Pensions, a case between the former Chief Justice Cockar and the Director of Pensions, in computing the pension payable to the CJ the Pensions Department made a mistake in their calculations. The former Chief Justice went to court and upon application for Judicial Review. The court issued the order of Certiorari to quash the decision awarding the former CJ the amount of money as pension.
For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must be having Locus Standi which is crucial as you must have the capacity to sue.
A person has capacity to sue by having a sufficient interest in the matter. If you don‟t have sufficient interest in the matter, the court will not grant you any of the orders.
2. PROHIBITION
The order of Prohibition is one issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings. It will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made.
This order may be issued against:
1. A judicial body acting in an administrative capacity i.e. Industrial Court.
2. An administrative body performing administrative duties or against the government officials.
3. It can be issued to stop a public body from continuing proceedings that are ultra vires.
4. It can also be issued to stop an administrative body from continuing to do something in excess of jurisdiction.
5. It can also be used to stop an administration body from abusing their powers.
In R v. Electricity Commissioners Ex parte Electricity Joint Committee (1924) Lord Denning stated as follows;
“It is available to prohibit administrative authorities from exceeding their powers or misusing them.”
Lord Atkin in the same case stated that
“If proceedings establish that the body complained of exceeded its jurisdiction, by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that Prohibition will lie to restrain it from exceeding its jurisdiction.”
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.
When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made. At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application.
With Prohibition, you do not have to attach the copy of the order.
3. MANDAMUS
The order of Mandamus is derived from the Latin word “Mandare” meaning “to command”. It is 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 undertake the duty.
Mandamus issues where there is a duty imposed by statute or common law.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 question is a public body.
For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court, the industrial court will be performing a private function and thus the order of Mandamus cannot issue.
For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored.
This means that if a public administrative body refused to do something, you must approach it and request it to perform the function or the courts will not hear you. Unreasonable delay on the part of the public body will be treated as refusal.
The duty must be a specific duty. You cannot apply for the order of Mandamus for a duty that is general, it must be specific.
Mandamus is used to enforce performance of specific duties and not the exercise of
merepowers.
In Daniel Nyongesa & Others v. Egerton University College (1989), Nyongesa’s exam results were held by the university and when he went to court, the court issued an order of mandamus for the court to release the results. Nyongesa had requested the University for his results and they had refused so he applied for an order of mandamus to the court and he was granted.
There was a specific duty for the university to release the results.