UNIVERSITY OF NAIROBI

JUDICIAL REVIEW

JUDICIAL REVIEW Lecture 1

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. Reading Material 1. 2. 3. 4. 5. Brian Thompson Text Book on Constitutional and Administrative Law 2nd Edition 1995. Peter Cane, An Introduction to Administrative law 3rd Ed. 1996 P L O Lumumba An outline of judicial Review in Kenya, 1999 Order 53 of the Civil Procedure Rules, Civil Procedure Act Cap 21 The Constitution 1998 Revised Ed. 1998 (1987)

JUDICIAL REVIEW 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 1. 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. 2. 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 ministers. 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 1

3.

4.

5.

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 (a) They make decisions for example they make decisions on application for licences; (b) 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.

(c) (d) (e)

In performing all of these functions and many more that time will not allow us to enumerate, there are certain requirements: (i) 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. (ii) 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. (iii) (iv) (v) (vi) (vii) (viii) (ix) 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 Water Police V. Evans [1982] 1 WLR 1155 The purposes of Judicial Review from that definition are as follows: 1. 2. 3. 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 Kenyas 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 3

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 developed 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: 4

1. 2. 3.

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 courts leave before 6 months are over.

4.

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.

Lecture 2 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. courts of law will review actions of admin bodies in one or more of the following circumstances 1. When a body acts ultra vires; 2. When there is jurisdictional error; 3. When there is an error of law; 4. When there is an error of fact; 5. When there is an abuse of power; 6. When irrelevant considerations governed the making of a decision; 5

7. 8. 9. 10. 11. 12.

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 dont 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. 6

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: (a) Exercising power in excess of statutory limits; (b) Acting in excess of jurisdiction; (c) 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 7

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. 8

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 (i) Matters that need to be taken into account have been taken into account; (ii) 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: 1. That an administrative agency has acted without jurisdiction. They have acted over matters which they have no authority to act. 2. They have acted within jurisdiction but have gone beyond or exceeded this can happen: (a) When a body erroneously exercises power or authority over a matter that is outside of its territorial limits. (b) Where a body legislates over a matter that falls outside of the matters it is authorised to legislate over. (c) 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.) (d) 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 9

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. Lecture 3 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 1. Failure to ascertain what the law is on a particular matter or what the law says about a particular matter; 2. It may also occur as a result of 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 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 10

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 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. 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 (a) Where power has been put to a wrong or improper use; (b) Where power has been used so as to injure or to damage; (c) Where power has been misused; (d) 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. 11

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: (i) Discretion must be exercised properly; (ii) Discretion must be exercised reasonably; (iii) Discretion must be exercised by the proper authority only and not by a delegate; (iv) Discretion must be exercised without restraint; Certain circumstances will give rise to improper exercise of discretion which includes: (i) Exercising discretion for improper motive; (ii) Where power to exercise discretion is delegated to a person who is not charged with the responsibility in question; (iii) 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 (i) 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. (ii) 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 12

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 (adverse interest suffices). (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 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.

Lecture 5 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. 13

Neil V. North Antrim Magistrates 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:

14

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 persons rights in addition to questions affecting peoples rights, the principles apply to bodies in every case involving a question affecting a persons 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 15

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. 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: (i) Rule against Bias; (ii) The right to be heard; (iii) Prior Notice; (iv) Opportunity to be heard; (v) Disclosure of information; (vi) Adjournment; (vii) Cross examination; (viii) Giving reasons; (ix) Legal Representation. Brrodplac 1. Rule Against Bias:

For bias please see previous lecture notes. In summary there can be bias when (a) There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest; (b) Where short of a direct interest there is a reasonable appearance or likelihood of bias; (c) 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 agents interest in the business disqualified him from taking part in the councils 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 16

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 (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. 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 persons case must be disclosed to that person. Failure to do so is fatal to a decision. 17

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 crossexamine. 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 18

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

19

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

20

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 dont 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. 21

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 others Civil Appeal No. 266 of 1996 Ex parte Geoffrey Gathinji Njoroge &

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 Nyongesas 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 & ORDINARY REVIEW Read Order 44 of the Civil Procedure Rules

Lecture 6
DISTINCTION BETWEEN JUDICIAL REVIEW AND ORDINARY REVIEW (REVIEW OF JUDGMENT)

Order XLIV Civil Review APPLICATION FOR REVIEW OF JUDGMENTS

22

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? 1. 2. 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 (i) 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; (ii) 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. (iii) 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 1. Where the Chief Justice orders some other person, i.e. some other judge or magistrate to hear their application for review; 2. 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. 3. 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. 4. 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.

23

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 1. 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.

2.

3.

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 Xs 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 24

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 Appellants trial was straight forward and would not require the assistance of a foreign advocate. In an application for Certiorari to quash the Attorney Generals decision, the court found that the grounds on which the Attorney Generals 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. Kariukis 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. Note the distinction between Appeals and 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 25

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

26