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.
Brian Thompson – Text Book on
Constitutional and Administrative Law 2nd Edition 1995.
2.
Peter Cane, An Introduction to
Administrative law 3rd Ed. 1996
3.
P L O Lumumba – An outline of
judicial Review in Kenya , 1999
4.
Order 53 of the Civil Procedure
Rules, Civil Procedure Act Cap 21
5.
The Constitution 2010 Revised
Ed. 2010
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.
3.
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.
4.
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
5.
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
(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.
(c)
They also resolve disputes
between individuals and governmental agencies or between individuals and
private bodies.
(d)
They make laws, rules and
regulations.
(e)
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:
(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)
If any procedure is prescribed,
they must follow that procedure.
(iv)
They must uphold the rules
of natural justice;
(v)
They must act within the
jurisdiction;
(vi)
They must act rationally;
(vii)
They are required to act in
good faith;
(viii)
They must exercise their
discretionary powers properly;
(ix)
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.
To prevent excessive exercise
of powers by administrative bodies and officials;
2.
To ensure that an individual is
given fair treatment by Administrative authorities;
3.
To keep Administrative
excesses in check and also to provide a remedy to those aggrieved as
a result of excessive exercise of power 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 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
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:
1.
Prescribing the procedure and
fees payable on documents filed or issued in cases where an order of mandamus,
prohibition or certiorari is sought;
2.
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.
3.
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.
4.
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. 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;
7.
When there is bias
8.
When there is unfair hearing;
9.
When there is procedural flaw;
10.
When there is irrationality
11.
When a public official or body
acts in bad faith;
12.
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:
(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 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
(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.
Commission Anisminic
Ltd. V. Foreign Compensation (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 Suez
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 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.
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
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)
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
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.
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
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.
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
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
(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.
(iii)
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.
According to Article 22 Any person who has sufficient interest can sue on behalf of another and even in the public interest.
In the case of Mureithi & 2 others v the Attorney general & 4 others. Justice Nyamu advocated for a broad minded approach when it came to the issue of standing, for the simple reason that Judicial review is a pillar in vindicating the rule of law.
This was affirmed in Republic v minister of information & broad casting and Ahmed Djibril ex parte East Africa Television Network Ltd
According to Article 22 Any person who has sufficient interest can sue on behalf of another and even in the public interest.
In the case of Mureithi & 2 others v the Attorney general & 4 others. Justice Nyamu advocated for a broad minded approach when it came to the issue of standing, for the simple reason that Judicial review is a pillar in vindicating the rule of law.
This was affirmed in Republic v minister of information & broad casting and Ahmed Djibril ex parte East Africa Television Network Ltd
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.
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?
1.
If the judge that made the decision is no longer at
the station, then one can apply to a different court for review.
2.
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.
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.
2.
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.
3.
this is with regard to the grounds – the grounds for
judicial review are not the same as those for ordinary review.
The Industrial Court
Kenya
Airways Limited V. Kenya
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
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. SEE Kenya Airways Limited V. Kenya
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
