Introduction
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.
Definition of
Administrative Law –
Administrative Law can
be defined as the law relating to public administration. It is the law
relating to the performance, management and execution of public affairs and
duties. Administrative law is concerned with the way in which the govt
carries out its functions. Administrative functions can be divided into a
number of broad categories namely
Ministerial Functions;
Examples of Ministerial Functions are those functions carried out or performed
by Government Ministers in their implementation of governmental policies and
programs. Examples include appointment of public officials by Ministers
and the grant of ministerial approvals and consents.
Administrative
Functions - these are the functions carried out by public officials and public
bodies in their management of various governmental bodies in their provision of
service for example educational services and in their administration of various
social services as in the case of social security services. Please note
that management of public schools and universities provide yet another example
of administrative functions of governmental bodies.
Legislative Functions:
These include the function of making or creating subsidiary
legislation. The responsibility of legislative functions is on the
respective Ministers’. The duty of making by-laws is also the respective
minister’s.
Judicial
Functions: These primarily involve the functions of determining claims or
disputes between individuals and other bodies. A good example of
administrative body that performs judicial functions is the Industrial Court
which functions as a court of law.
Quasi Judicial
Functions: These involve the exercise of powers which are fundamentally
judicial but without the usual trappings of a court of law for example without
strict requirement of rules of evidence or the observance of rules of evidence,
without strict requirements of examination of witnesses and without other legal
technicalities a good example being the Liquor Licensing Court, the Land
Control Boards and the Motor Vehicle Licensing Authorities.
In the exercise of the
various functions, public officials and public bodies do various things
They make decisions
for example they make decisions on application for licences;
They exercise
discretion. The exercise of discretion is an important aid to the
exercise of decision-making powers. A public official has the power to
exercise discretion whenever the effective limits of his/her power leaves
him/her free to make a choice among possible causes of action or inaction
for example an official may be required by law to meet expenses resulting from
an emergency or disaster without the law defining what amounts to an emergency
or disaster and in such a case the public official would have discretion to
decide what amounts to a disaster.
They also resolve
disputes between individuals and governmental agencies or between individuals
and private bodies.
They make laws, rules
and regulations.
They determine appeals
against adverse decisions made by administrative bodies.
In performing all of
these functions and many more that time will not allow us to enumerate, there
are certain requirements:
They must conform
to the constitution; for
example in their legislative function S. 3 of the Constitution places a
requirement that any law, rule or regulation made must be in conformity with
the constitution Section 3 of the Constitution states as follows “if any
other law is inconsistent with this Constitution, this Constitution shall
prevail and the other law shall to the extent of the inconsistency be void.”
They must also conform
to statutes so that if the statutes grant powers they must exercise only
those powers that are granted by the statutes. They must keep within the
powers that they have been granted by the statutes.
If any procedure is
prescribed, they must follow that procedure.
They must uphold
the rules of natural justice;
They must act
within the jurisdiction;
They must act
rationally;
They are required to
act in good faith;
They must exercise
their discretionary powers properly;
They must act
impartially in other words they must act without bias;
Please note that in a
lot of cases, often, public officials and public bodies fail to conform to
these requirements and act in excess of authority bestowed upon them by
law. In cases where an administrative official or body acts in excess of
power conferred on them by law, people are likely to suffer i.e. a person is
likely to be aggrieved. Therefore, there has to be a way to provide
remedy in cases where a person has been aggrieved. Judicial Review is the
most appropriate way by which remedies may be provided against the excessive
exercise of power by administrative bodies. Therefore judicial review
forms an integral part of administrative law.
JUDICIAL REVIEW
Judicial Review –
Examining the Actions (inactions) of public Bodies by the Courts
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 Wales Police V. Evans [1982] 1 WLR 1155
The purposes of
Judicial Review from that definition are as follows:
To prevent
excessive exercise of powers by administrative bodies and officials;
To ensure that an
individual is given fair treatment by Administrative authorities;
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.
ORIGINS OF JUDICIAL
REVIEW IN KENYA
Our legal system, our
system of laws, rules and regulations was derived from the English Legal System
and so was Judicial Review. In England Judicial Review developed from the
ancient prerogative writs of Mandamus, Prohibition and Certiorari. In
England these writs issued in certain cases such as those in which the
principles of natural justice had not been observed. All writs were in
the form of commands issued by the Crown (King or Queen). These writs
were later codified into English Law meaning that when they issued from the
Crown, they were verbal which was later introduced in Kenya with the advent of
colonialism.
Please Note:
Over time there have been significant developments in England with regard to
judicial review and the issue of these 3 orders, Mandamus, Prohibition and
Certiorari and most importantly many cases concerning judicial review have been
decided in England which are of persuasive authority and guidance to our courts
in Kenya especially in areas where Kenya’s jurisprudence in relation to
Judicial Review has not developed. Therefore in the absence of Kenyan
Court Cases setting out or clarifying matters concerning Judicial Review, we
will rely on English Cases for illustration.
Our discussion now
concerning Judicial Review will focus on the introduction of Judicial Review in
Kenya.
INTRODUCTION OF
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 in particular Section 7
of this Act provided that in any case in which the High Court of England may
by virtue of the provisions of the Section issue prerogative writs of Mandamus,
Prohibition and Certiorari the High Court of Kenya shall have power to make a
like order i.e. they empowered the High Court in Kenya to act in providing
redress by providing the same order which could not previously issue.
Another development
was the passing of the Law Reform (Miscellaneous Provisions) Ordinance No.
18 of 1956 which came into effect on December 18 1956 and the effect of
this law was that it replaced the word ‘writ’ with the word ‘order’.
Another development
took place in 1960 and in this year Section 8 (2) of the 1956 Ordinance which
had until then restricted applications for these orders only to cases where
there were no alternative remedies was replaced. This section was
replaced by another ordinance known as the Law Reform (Miscellaneous
Amendment) Ordinance which now allowed an aggrieved person to obtain any
one or more of those prerogative orders the presence of an alternative remedy
not withstanding.
The problem as of that
time was that the words ‘Crown’ was still maintained which was not applicable
to the circumstances of the people of this country and soon after independence
the word ‘Crown’ was removed. In 1966 they passed the Statute Law
(Miscellaneous Amendment) Act which replaced the word ‘Crown’ with the word
‘Government’. Regardless of these changes, The Law Reform Act which was
inherited from the Law Reform Ordinance of (1960) still recognised English Law
governing the prerogative orders as the guideline with reference to which the
High Court in Kenya could issue the orders i.e. we were not independent and had
to look to the source for guidance.
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.
In other words this
Act provides that the High Court of Kenya shall issue any one or more of these
orders only where the High Court of England can issue such orders. These
orders only issue upon judicial review. They are the only remedies that
the courts in Kenya can grant upon judicial review.
Another important
factor regarding applicability of judicial review is provided for under Section
9 of the Law Reform Act Cap 26 Laws of Kenya. The primary legal
basis of Judicial Review is the Law Reform Act. From the wording of S. 8,
only the High Court can issue these orders. You can only apply for
Judicial Review in the High Courts and not the Magistrates Courts.
Section 9 of Law
Reform Act provides in subsection (1) that any power to make rules of courts to
provide for any matters relating to the procedure of civil courts shall include
power to make rules of court regarding the following:
Prescribing the
procedure and fees payable on documents filed or issued in cases where an order
of mandamus, prohibition or certiorari is sought;
Section 9 (1) (b)
provides that rules can be made requiring that leave shall be obtained
before an application is made for any one of these orders.
Section 9 (1) (c)
provides that if the courts grant leave for judicial review and then you
proceed to file an application of judicial review, only those orders that
you specified in your leave application will be granted.
Section 9 (2) provides
for time limitation and authorises that rules be made prescribing a time period
of 6 months or less within which an application for any one of the
prerogative orders can be made. However, when it comes to Certiorari
subsection (3) makes it very clear that if you intend to apply for the order of
certiorari you must seek the court’s leave before 6 months are over.
Pursuant to Section 9
(1) (a) the specific procedure has been stipulated under Order 53 of the Civil
Procedure Rules for applying for leave to apply for Judicial Review and for
applying for Judicial Review.
The Civil Procedure
Act is therefore the Act of Parliament that sets forth the procedure for
applying for Judicial Review or so called prerogative orders. In addition
to the Law Reform Act we have the Civil Procedure Act forming the legal basis
for Judicial Review.
Section 65(2) of the
Constitution is the Constitutional basis for Judicial Review.
LEGAL BASIS OF
PREROGATIVE ORDERS/JUDICIAL REVIEW
Law Reform Act
Civil Procedure Act
Constitution.
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. We will
be looking at cases of failure to conform to one or more of the requirements that
we listed last week.
Please note that
Courts of Law will intervene in public administration in one or more of the
following circumstances i.e.
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;
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.
There are 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. We don’t have to have all the 12 circumstances to apply for
judicial review any one of the grounds will suffice plus the list is not
exhaustive. Further developments on a case by case basis may add more
grounds.
1.
DOCTRINE OF ULTRA VIRES
The doctrine of ultra
vires is a legal doctrine
In English Legal
System Judicial control of administrative agencies is based on the doctrine of
ultra vires. This may mean a number of things but surely it does mean in
the English legal system the basic doctrine governing judicial intervention in administrative
function is the doctrine of ultra vires. It means simply that 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 court will intervene on matters of public admin if the admin 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
by statutes.
They must also act
within the requirement of common law.
Administrative bodies
must act only within the powers that they have been given by the
statutes. They must also recognise the limits imposed on them by the
statutes. The exercise of powers by 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 by statutes to ensure that powers
conferred to admin 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. When we refer to law we
mean firstly common law, statute law and beyond that we have the Constitution
and they would have to act within all these and within any other regulations
that have been put in place.
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 a body acts ultra vires if that
body does an act which it has no authority to do.
One case is where an
admin body does things that is not authorised 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 things that are authorised, they have failed to follow prescribed
procedure. If you consider these instances, a person in the process of
doing the authorised things abuses the powers, or where they are exercising the
conferred powers but they fail to observe procedure. One is substantive ultra
vires and procedural ultra vires.
Substantive ultra
vires.
Substantive ultra
vires is acting in excess of powers with regard to matters of substance. This would include for example acting
beyond what is authorised. What is authorised is a matter of
substance. The service that is authorised is a matter of substance.
Substantive ultra vires includes the following cases:
Exercising power in
excess of statutory limits;
Acting in excess of
jurisdiction;
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;
Procedural Ultra
Vires
In addition to
substantive ultra vires that is in addition to cases where admin bodies may go
beyond their powers on matters of substance, there are also cases of procedural
ultra vires. These are cases where admin bodies fail to follow
prescribed procedure. They also include cases where an error
occurs in following 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 have the chance to defend
themselves.
Please remember that
courts have been prepared and are mandated to use or to apply ultra vires
doctrine in the cases that we have cited 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.
White and Collins
vs. Minister of Health [1939] 2 KB 838
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. The purchase itself was also 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. (The court order that quashes is certiorari)
Sheikh Brothers Ltd
vs. Hotels Authority [1940] K.L.R. 23
The Hotels Authority
the defendant in this case was empowered by regulation to fix or vary the
percentage of accommodation rates which should be available to monthly hotel
residents as it may consider reasonable. At a time when the percentage
for monthly residents had been 85% the Authority fixed the percentage at
100%. In other words the Authority fixed the percentage at 100% instead
of the previous 85%. The Hotel owners sought to have the decision set
aside by certiorari. The court held that the authority had clearly
exceeded its powers. The wording in the regulation the court said, in
allowing a portion of accommodation rates to be fixed required that some
comparative relation must be maintained between the accommodation rates fixed
for monthly residents and other residents. The fixing of the percentage
at 100% did away with the element of proportion. (Substantive ultra
vires)
Please note that in
some cases courts will interpret the relevant statutes to find out if the
particular act complained of is provided for.
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.
R V. Ealing London
Borough Council Ex parte Times Newspapers Ltd (1986) 85 L.G.R. 316 (Local
Government Reports)
In this case 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.
An example of a matter
that amounts to unreasonableness.
Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 K.B 223
The Sunday
Entertainment Act of 1932 empowered local authorities to grant licences for
cinematograph performances and to allow and licence a place to be opened and
used for cinematograph performances subject to such conditions as the authority
thinks fit to impose. The local authority granted the Plaintiffs licences
for Sunday performance subject to one condition that no children under 15 yrs
of age should be permitted to Sunday performance with or without an adult.
A local authority
empowered to attach such conditions as it thought fit to the grant of a permit
for Sunday cinema opening, imposed a condition that no child under fifteen
should be admitted to a Sunday performance at all. The condition was
attacked as being void for unreasonableness. The Court of Appeal held
that it was valid.
The court held in an
action for declaration that this condition was reasonable, the court held that
the local authority had not acted unreasonably. In imposing this
condition, the licensing authority had not acted ultra vires. The court
then went on to state “what a court would be looking at when faced with
unreasonableness is whether
Matters that need to
be taken into account have been taken into account;
Omitted matters that
ought to be considered have been considered.
3.
JURISDICTIONAL ERROR:
Scope or area in which
a body is allowed to act; includes territorial limits. Where there is
error it means:
That an administrative
agency has acted without jurisdiction. They have acted over matters which
they have no authority to act.
They have acted within
jurisdiction but have gone beyond or exceeded 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
legislate 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; (Authority to do something but decline 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, as a result the aggrieved person
can apply to the High Court for Judicial Review on the ground that a public
body has committed jurisdictional error.
Anisminic Ltd. V.
Foreign Compensation Commission (1969) 2 AC 147
The dispute in this
case arose from the agreement between the Governments of Egypt and the United
Kingdom that a sum be paid by Egypt to provide compensation for those British
companies and persons whose property had been lost or damaged in the 1956 Suez
incident, and subsequent expropriations of British property by the Egyptian
government. The United Kingdom Government entrusted the distribution of
compensation to the Foreign Compensation Commission and section 4(4) of the
Foreign Compensation Act provided that ‘The determination by the Commission
of any application made to them under this Act shall not be called into
question in any court of law.’ The statutory instrument defining the powers
of the Commission in relation to applications arising out of the Suez incident
contained complicated and obscure provisions as to the nationality of
applicants for compensation. The object was to ensure that only those of
British nationality received compensation, be they the original owners of the
property lost or damaged, or their successors in title. Anisminic was a
British company but its property had been first sequestrated and then sold to an
Egyptian organization. The Commission interpreted the statutory statement
defining proper applicants for compensation as excluding Anisminic because
their successor in title was of Egyptian nationality. The House of Lords
held that the Commission had misconstrued the instrument because where the
original owner of the property claimed he was British the nationality of his
successor in title was irrelevant. The Commission had considered a matter
totally irrelevant to the questions which they had been granted jurisdiction to
determine. They had embarked on an enquiry beyond the limited inquiry
directed by Parliament. Accordingly they had exceeded their jurisdiction
and their purported determination was invalid and not protected by the
provision preventing proper determination of the Commission being questioned in
courts.
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
govt for example has no idea that he cannot sack an elected mayor, this is an
act of ignorance.{Msa} Negligence would be where an admin
body fails to do what the law provides and in this case they have failed to
look up the law to see what it provides.
This can result from a
number of things
Failure to ascertain
what the law is on a particular matter or what the law says about a particular
matter;
It may also occur as a
result of misconstruction of the law;
Misinterpretation of
the law;
Blatant disregard of
the law;
Misunderstanding of
the law; or
Misdirection on the
law (this involves a situation where an admin 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 have given
directions that are not correct we may say that this is a misdirection.
In all these 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
by an examination of the record of proceedings without recourse to any evidence.
Just by 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 in error, all the acts done in error of law are
invalidated upon judicial review because they are illegal and therefore
upon judicial review they are invalidated.
R v. Northumberland
Compensation Appeals Tribunal ex parte Shaw (1952) 1 KB 338
In this case 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 by aggregating two periods of employment i.e. the
law was saying in computing compensation 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. The main remedy where there is an error of
law or an error on the face of the record is certiorari. It involves
removal of proceedings to the High Court so they can be quashed.
Kenneth Matiba V.
The Attorney General High Court Misc. Civil App. No. 790 of 1993
In this case the court
considered a decision made by the rules committee of the High Court regarding
applications for leave to apply for judicial review. The rules committee
of the High Court is empowered to make rules for judicial review and these
rules must be in conformity with the enabling statute which is the Law Reform
Act Cap 26. By Legal Notice No. 164 of 1992, the committee purported to
amend Order 53 of the Civil Procedure Rules by doing away with the requirement
of leave as a condition precedent to applying for judicial review. In
doing so they failed to adhere to sections 8 and 9 of the Law Reform Act which
is the enabling statute. This error was considered in the case of Kenneth
Matiba versus the AG in which the court ruled that the act of the rules
committee was null and void to the extent that it was not in conformity with
the enabling statute.
5.
ERROR OF FACT
Please note that facts
are an 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
Where facts have not
been properly appreciated;
Where facts have not
been properly interpreted;
Where there is an
incorrect finding of facts;
Where irrational
conclusions are made from facts;
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. Where the existence or
non-existence of a fact is not certain, it will be left to the judgment and
discretion of the public body concerned.
6.
ABUSE OF POWER
Abuse of power
includes cases where the power and authority given public bodies have
Where power has been
put to a wrong or improper use;
Where power has been
used so as to injure or to damage;
Where power has been misused;
Where power has 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.
7.
IMPROPER EXERCISE OF DISCRETION
An administrative body
has the authority to exercise discretion whenever the limits of his statutory
authority leaves him 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 do 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:
Discretion must be
exercised properly;
Discretion must be
exercised reasonably;
Discretion must be
exercised by the proper authority only and not by a delegate;
Discretion must be
exercised without restraint;
Certain circumstances
will give rise to improper exercise of discretion which includes:
Exercising discretion
for improper motive;
Where power to
exercise discretion is delegated to a person who is not charged with the
responsibility in question;
Where discretion is
exercised so as to serve self-interest.
Fernandes V.
Kericho Liquor Licensing Court [1968] E.A. 640
The case concerns the
authority given 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 by deciding to issue licences only to Africans.
8.
IRRELEVANCY
Irrelevancy is one of
the grounds of judicial review. What is irrelevancy?
Irrelevancy occurs in
two situations that the courts will consider as amounting to irrelevancy
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 a gender a licence is denied.
Where an
administrative body disregards something, which it ought to consider in making
a decision.
Secretary of State
for Education and Science V. Tameside Metropolitan Borough Council (1977) A .C.
1024
In this case the court
stated that in its decision in the process of review it is for a court of law
to establish whether in reaching the unfavourable decision complained of a
public body has taken into consideration matters which upon the true construction
of the act at issue ought not to have been considered and excluded from
consideration matters that were relevant to what had to be considered.
Wenesdbury Case
9.
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.
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
(adverse interest suffices).
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 by 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
by a pecuniary interest and how close is it to the matter decided or how
remote.
R V. Gough [1993]
A.C. 646
(iii)
Actual Bias:
There are cases where in the absence of the real likelihood of bias and in the
absence of pecuniary and other interests, and in the absence of 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 by way of quashing so the decision is
quashed.
10.
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.
Neil V. North Antrim
Magistrate’s Court (1992) WLR 1220
This case suggests
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.
Please note that
failure to give a fair hearing will result in a null and void decision which
means 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.
11.
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
irrationally or whatever decision it makes irrationally can be invalidated upon
judicial review. Irrationally 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.
Associated Provincial
Picture Houses V. Wednesbury Corporation [1948] 1 KB 223
R V. Ealing London
Borough Council ex parte Times Newspaper Ltd (1986) 85 LGR 316
In the Earling case,
there was a clear case of abuse of power prompted by an irrelevant
consideration where some local authorities refused to provide certain
newspapers in their public libraries. Their reason for the ban was that
they were politically hostile to the newspapers’ proprietors, who had dismissed
many of their workers when they went on strike. The ulterior political
object of the local authorities was irrelevant to their statutory duty to
provide ‘a comprehensive and efficient library service.
12.
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.
Please note that
breach of fundamental rights could also give rise to judicial review.
13.
BREACH OF PRINCIPLES OF NATURAL JUSTICE
Breach of principles
of natural justice will give rise to judicial review.
Principles of natural
justice:
Natural defined:
Natural is being in accordance with or determined by nature. Based on the
inherent sense of right and wrong.
JUST
Means just, morally
upright, correct, proper, good, merited deserved etc.
From the definition
you can see that justice is the maintenance, administration, provision or
observance of what is just, good, correct, proper, merited or deserved.
With these two
definitions of natural and justice, 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.
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.
Other grounds of
judicial review such as error of law, are grounds in which courts might be said
to be upholding administrative authorities within the boundaries of their
powers conferred on them by statutes. Unlike such grounds, principles of
natural justice are applicable in the absence of statutory provisions
authorising their applicability or their observance. Unless 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.
Fairmount Investments
Ltd. Vs. Secretary of State [1976] 2 AER 865
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 in addition to questions affecting people’s
rights, the principles 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.
Mirugi Kariuki V. The
Attorney General High Court Civil Appeal No. 70 of 1991
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. (It can be a right or some other interests)
These principles apply
to administrative bodies that are judicial, quasi-judicial legislative or
administrative.
The
Principles/Rules
Broadly the principles
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.
1.
Rule Against Bias:
For bias please see
previous lecture notes. In summary there can be bias when
There is some direct
interest in the matter to be adjudicated; e.g. pecuniary interest;
Where short of a
direct interest there is a reasonable appearance or likelihood
of bias;
Where there is actual
bias.
R V. Hendon Rural
District Council ex-parte Chorley (1933) 2K.B. 696
In this case 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. Vs. Lannon (1968) 3 All E R 304
The court said; “in
considering whether there was a real likelihood of bias, the court does not
look at the mind of the justice himself or 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”.
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.
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 Civil Appeal NO. 152 of 1986
In this case the
Commissioner of Prisons purported to deprive Onyango Oloo his 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 a person of any charge or allegation.
It simply means that if an admin 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
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;
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.
Board of Education
V. Rice [1911] AC 179
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.
Ridge V. Baldwin
(1964) A.C. 40*
The House of Lords in
this case 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 Vs. Fisher
& Sons (1968) WLR 1478
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 admin body denies you lets say a licence, they must give
you the reasons why failure to which you can petition the High Court for a review)
In this case
Padfield V. The
Minister for Agriculture Fisheries and Food (1968) AC 977
Lord Reid stated “I
cannot agree that a decision cannot be questioned if no reasons are given”.
Meaning 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.
Read Order 53 of the
Civil Rules
Procedure for applying
for judicial
Review
Procedure For
Application for Judicial Review
Application for leave
is by way of Chamber Summons under Civil Procedure Rules Order LIII. This
application is made ex parte in sub section 3 it requires that notice be
given for application for leave. The notice is to be given to the
registrar of the High Court.
Time limitation is
crucial. Order 53 provides for time limits within which a person can
apply for leave. The law is very strict where it comes to certiorari, you
have to file your application for leave within 6 months of the date your
application e.g. when a liquor licensing was denied. If you do not
file within 6 months the court cannot grant an extension.
Time limitation is not
stipulated for Mandamus or Prohibition but it is required that you file the
application within a reasonable time. Reasonable time means that you may
serve 3 months after the licence was denied and be denied leave or for 8 months
and they grant leave. But with certiorari it has to be 6 months and it
cannot be extended.
Order 53 (4) –
Grant of leave to make the application can operate as a stay of proceedings. It can be a stay of the proceedings that
you are complaining about.
The grant of leave
will operate as a stay of proceedings where you are seeking to quash whatever
has taken place under certiorari. Stay will only apply in case of
certiorari and prohibition and not Mandamus.
APPLICATION FOR
JUDICIAL REVIEW
Under section 3(1)
after you have been granted leave, you make your application by way of Notice
of Motion which will include a statement. Within 21 days of the
grant of leave, you must make your application. If personal
allegations have been made, you must serve the party that allegations have been
made against.
You must serve the
other party, e.g. officials of liquor licensing court etc. within 8 clear
days of hearing;
You file an Affidavit
of Service stating some things usually a court process server will swear an
Affidavit stating how they effected Service.
File the Affidavit of
service within 8 clear days of hearing and file the Affidavit with a court
registry and the affidavit must be in the file on the day of hearing.
Hearing: This is
when your application for Judicial Review is done. The administrative
body or tribunal will enter appearance which is done in a prescribed
format. After the court listens to your allegations, the court makes a
ruling and the court may rule in your favour or against. When asking
for certiorari, you must categorically indicate that in your pleadings etc.
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.
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
administrative tribunals, it can also issue against inferior courts such as the
industrial courts, it can issue against local authorities, it can issue against
Ministers of Government. It can also issue against miscellaneous public
bodies exercising public functions.
Majid Cockar V.
Director of Pensions Nai H.C. Misc App 532 of 1998
This was the 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 an 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. You have 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. You have a sufficient interest in the matter
if you will be directly affected by the matter.
PROHIBITION:
The order of
Prohibition is an order 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 judicial body acting in an administrative
capacity i.e industrial court. It can also issue against an
administrative body performing administrative duties or against the government
officials etc. It can be issued to stop a public body from continuing
proceedings that are ultra vires. It can also be issued to stop an admin
body from continuing to do something in excess of jurisdiction. It can
also be used to stop an administration body from abusing their powers.
R V. Electricity
Commissioners Ex parte Electricity Joint Committee (1924) 1 K.B 171
At Page 559 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 said as follows
“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.
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 is a court order issued to compel the performance of a
public duty where a public body or official has public refused failed or
declined to undertake a duty.
Mandamus issues where
there is a duty imposed by statute or common law. Please note that 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 admin 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 e.g. under the English
Gas (1972) it was the duty of the British Gas Corporation to develop an
efficient coordinated and economical system of Gas supply for Great
Britain. Such an obligation is so imprecise i.e. it is so general that it
would not be enforceable by the order of Mandamus. The lack of
specificity does not mean that it is meaningless. Duty can be carried out
but it is not precise. Mandamus is used to enforce performance of
specific duties and not the exercise of mere powers.
Kenya National
Examination Council V. R Ex parte Geoffrey Gathinji Njoroge
& others Civil Appeal No. 266 of 1996
Justices of Appeal
Tunoi and Shah stated as follows regarding the powers of the Kenya National
Examination Council
“The times and
frequency of the examinations are left to the discretion of the council and it
cannot be enforced by Mandamus to hold an examination at any particular time of
the year.
Daniel Nyongesa
& Others V. Egerton University College Civil Appeal NO. 90 of 1989
In this case
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.
DISTINCTION BETWEEN
JUDICIAL REVIEW AND ORDINARY REVIEW (REVIEW OF JUDGMENT)
Order XLIV Civil
Review – APPLICATION FOR REVIEW OF JUDGMENTS
In addition to
judicial review there is what is known as ordinary review. Judicial
review is covered under Order 53 and Ordinary Review is provided for under
Order 44 of the Civil Procedure Rules.
Ordinary Review
is a review of judgment or order of a court of law.
Judicial review
is a review of an act or a decision of an administrative body.
When can a person
review an ordinary review in a different court?
If the judge that made
the decision is no longer at the station, then one can apply to a different
court for review.
If the judge who made
the judgment has not been present for 3 months after 3 months it is considered
that there has been an inordinate delay and the court can allow you to review
the decision in a different court.
There is no time
limitation to when one can apply for an ordinary review but the application
must be made without delay. There is no requirement of leave of court to
apply unlike in judicial review where one has to seek leave of court.
Ordinary Review is
review of judgment or order made by a court of law (Judicial Review is review
of an act or decision of an administrative body)
Ordinary Review is
provided for under Order XLIV (44) of the Civil Procedure Rules. This
order provides that any person considering himself aggrieved by decree or an
order from which an Appeal is allowed but from which no appeal has been
allowed, or a person who feels aggrieved by a decree or order from which no
Appeal is allowed may petition the court that made the order of decree on the
following conditions
On the discovery of new
and important matter or evidence which after the exercise of due diligence
was not within his knowledge or could not be produced by him at the time the
decree or order was made;
On a count of some
mistake or error apparent on the face of the record; for example error
of law, typographical errors, mathematical errors etc.
For any other
sufficient reason.
In these 3
circumstances an aggrieved person may apply to the court which made the decree
or order. There are certain exceptions to the requirement that
application for review be made to the court that made the decree or order
Where the Chief
Justice orders some other person, i.e. some other judge or magistrate to hear
their application for review;
Where the Judge or
Magistrate who made the decree or the order is no longer attached to that court
e.g. where they have been transferred or have resigned.
Where the Magistrate
or Judge who made the order or decree has been absent from the station for more
than 3 months from the date of filing of your application.
Where you have
discovered new and important matter of evidence.
Note that there is no
time limitation for application for ordinary review but it must be brought
without unnecessary delay. Upon ordinary Review, there may be a
re-hearing of a case. The case may be heard afresh.
No double review is
allowed meaning that no application can be brought for review of an order
issued upon an application for ordinary review.
DISTINCTIONS BETWEEN
ORDINARY REVIEW AND JUDICIAL REVIEW
With judicial review
an aggrieved party must first of all apply for leave of court and on the other
hand there is no requirement for leave on application for ordinary review.
With Judicial Review
especially where an applicant seeks the order of Certiorari the application
must be brought within six months i.e. there is time limitation of six months
on the other hand with ordinary review there is no time limitation but the application
must be brought without unnecessary delay.
this is with regard to
the grounds – the grounds for judicial review are not the same as those for
ordinary review.
The Industrial Court
is subordinate to the High Court even though it is presided over by a
Judge.
Kenya Airways
Limited V. Kenya Airways Pilots Association H.C. Nai. Misc App No. 254 of 2001
Judicial Review is not
an Appeal.
Distinction between
Appeal and Judicial Review
An Appeal has been
described as the transfer or taking of a case from a lower court to a higher
court in the hope of reversing or modifying the decision of the former.
An Appeal involves taking a case to a higher court for rehearing to determine
whether the decision arrived at by the lower court was right or wrong.
When one appeals a decision, one is claiming that it is wrong or incorrect on
the basis of evidence tendered and the applicable law and that the appellate
body should change the decision. For example if X was found to have
defamed Y upon judgment X might appeal that finding or the amount of damages
which the court awarded to Y. the court of Appeal if persuaded of the
merits of the case may allow X’s Appeal in which case the court substitutes its
view for that of the lower court. Thus we can say, that on the other hand
with judicial review, a court is not concerned with the merits of the case in
other words, a court is not concerned with whether the decision was right or
wrong on the basis of the evidence tendered and the Applicable Law, but with
whether the decision making process was lawful or unlawful.
Whereas an appeal is
concerned with a decision, )it is concerned with whether a decision was right
or wrong) judicial review is concerned with the decision making process.
Chief Constable of
North Wales Police V. Evans
[1982] 1 WLR 1155
In this case the court
stated in an effort to distinguish judicial review from an appeal that the
purpose of judicial review is to ensure that an individual is given fair
treatment by a wide range of administrative authorities be they judicial quasi
judicial or purely administrative to which the individual has been
subject. It is no part of that purpose to substitute the opinion of the
judiciary or the individual judges for that of the authority constituted by law
to decide the matter in question. The consequences of finding that a
decision or a decision was unlawful, and the consequences of finding that the
decision making process was unlawful, improper or flawed is that it is
invalidated. This means in the case of Judicial Review, that the court can
order a decision to be made again but the second time, it must be made in
accordance with the law. Please note that it would be acceptable for the
decision maker to come to the same conclusion provided the law is respected.
Mirugi Kariuki V.
Attorney General
The Appellant was
charged with Treason. He petition the Attorney General to grant leave to
an English Barrister to lead his defence. In the exercise of his absolute
discretion to consider such a request conferred by Section 11 of the Advocates
Act, the Attorney General wrote a letter to the Appellant saying that leave
would not be granted because the Appellant’s trial was straight forward and
would not require the assistance of a foreign advocate. In an application
for Certiorari to quash the Attorney General’s decision, the court found that
the grounds on which the Attorney General’s grounds were founded were
suspicious. The Court removed the offending letter to the High Court quashed it
and directed the Attorney General to reconsider Mr. Kariuki’s request in a
manner more respectful to the norms of sound administration.
The point is that even
if the law was not followed in the first place, the court can order that body
to reconsider the matter.
With Appeals, if there
is a right of appeal and an appeal succeeds, the Appellate Court will
substitute its own decision for that of the inferior tribunal and dispose of
the case accordingly.
Another attribute of
appeal is that it is granted by statute. Unless a statute expressly
allows appeal, an aggrieved party cannot lodge an appeal against a
decision. In cases where appeals are allowed against administrative
decisions or actions, the relevant law will expressly state that Appeal is
allowed. On the other hand in judicial review, the court exercises
inherent powers which gives it authority to review unlawful decisions. In
other words, there need not be express statutory provisions authorising the
High Court to exercise judicial review over an administrative decision, or an
administrative action.
Please note that even
if a statute specifically excludes appeal to a Higher Court, this does not bar
the High Court from exercising powers of judicial review.
EXCLUSIONARY CLAUSES/
OUSTER CLAUSES
These are those
statutory provisions that will purport to exclude Judicial Review. They
appear in various forms and one way for example would as follows “the award
of the industrial court shall not be questioned or reviewed by any court” S.
17(2) Trade Disputes Act. This provision ousts the powers of the High
Court to Review the decision of the administrative body.
The ouster clauses
also appear in form of finality clauses i.e. “decision of this body is final
and conclusive and shall not be questioned in any court.” A Statute
may also say that the decision of this body shall not be questioned in any
legal proceedings. When such clauses appear, does it necessarily mean that the
court cannot inquire into a decision through judicial review? The answer
is simple it is important to note that if such statutory provisions were
interpreted literally it would mean that an aggrieved person is bound by the
decision of an administrative body however unlawful that decision is.
Literally it would mean that no court is entitled to go behind that decision by
way of judicial review. However, the attitude of the courts and the
practice especially in Kenya show a trend that courts will disregard such
provisions in other words courts will disregard ouster clauses and proceed to review
administrative decisions and administrative actions.
In almost every case,
the practice is that the courts will regardless of such ouster clauses review
an administrative decision.
The general attitude
of judges, which includes judges in this countries and others is that access to
the courts can only be excluded by very clear words to that effect and that
even where those very clear words are present, those statutory provisions purporting
to deny access to justice (ouster clauses) will as far as possible be
interpreted in favour of the citizen. This point is illustrated in an
English Case
Re Gilmores
Application (1957) 1 QB 574
Lord Denning state “The
remedy of Certiorari is never to be taken away by any statute except by the
most clear and explicit words. The word ‘final’ is not enough. That
only means without appeal. It does not mean without recourse to
Certiorari. It makes the decision final on the facts but not final on the
law. Notwithstanding that the decision is by a statute made final,
Certiorari can still issue for excess of jurisdiction or for error on the face
of the record. If tribunals were to be at liberty to exceed their
jurisdiction without any checks by the courts, the rule of law would be at an
end.”
By extrapolation this
rule of Lord Denning would apply to Mandamus and Prohibition
In Kenya the High
Court has ruled that where there is an ouster clause, for example the one
appearing in Section 17(2) of the Trade Disputes Act, the High Court
nevertheless has jurisdiction to interfere with the decision of an
administrative body if anyone or more of the grounds of the judicial review are
present. The best case that illustrates this is
Kenya Airways Limited
V. Kenya Airline Pilot Association
Sergio applies for a
liquor licence to Mjini Liquor licensing board, he was never informed
