1. Administrative law, though law is different from other branches of law as some times it goes beyond
the law to examine administrative circulars, policy statements, memoranda and resolution. It is a
branch of pulblic law, it deals with the relationship between individuals and gvt. It deals with
organisation and power of administrative and quasi administrative bodies with emphasis on the
manner of exercise of the power.
• Administrative law is primarily concerned with official action.
• It relies greatly on the common law.
• It is cross-cutting and will arise wherever a person becomes a victim of arbitrary exercise of
HISTORICAL DVLPT OF AL
AL as practiced in Kenya has its origin in the laws of England. As a modern concept in England, Al
began to emerge in the second half of the 17th century. However a number of the principles like
natural justice pre-date this time. In earlier times in England justices of peace served as all purpose
administrative authorities. They were supervised by judges of assize who conveyed instructions from
the crown during their circuits and also dealt with defaults and malpractices. This system was
strengthened under the Tudor mornachy through the use of the privy council and the provincial
councils in the north and in Wales which was a drift towards centralisation of power. Oversight by the
privy council was exercised through the star chamber which punished those who disobeyed the
justices of peaceand reprimanded the justices themselves. After abolishion of the star chamber in
1642, and the destruction of most of the privy council executive power a new situation arose. The old
machinery of central political control had been broken down therefore the court of kings bench
stepped in and this ushered in a new era of control of administrative authority through courts of law.
The kings bench issued its writs of Mandamus, Certiorari and prohibition together with ordinary
damages to anyone who wished to dispute the legality of administrative acts of justices or other public
authorities. The courts extended the application of the principle of ultra-vires and judicial preview.
Later the same rules were applied to the administrative state and it began to emerge to regulate the
central government. In kenya, the constitution now guarantees the right to fair administrative action as
part of rights and fundamental freedoms under the bill of rights. Art 47 provides:
a. Every person has the right to administartive action that is expenditious, efficient, lawful,
reasonable and procedurally fair.
b. If a right of fundamental freedom of a person has been or is likely to be adversely affected by
administrative action the person has the right to be given written reasons for the action.
c. Parliament shall enact legislation to give effect to the rights in cross 1 and the legislation shall:
I. Review of admistrative action by a court of law or an independent tribunal
II. Promote efficient administration
In Kenya, the development of modern administrative law can be traced back to the advent of
colonisation, Kenya was declared a British protectorate in 1895 and this was the start of deportation of
British systems of governance including its systems of public administration.
2. THE RULE OF LAW
It is a cardinal principle in the operation of AL. It provides that matters of governance should be
based on the established laws and principles but not on the personal whims of the governors. It
provides the starndards against which official action is accessed. It has its origin in the french phrase
la principe de legalite. This refers to governance based on law and not of men. Lord Edward Coke is
said to be the orinator in concept when he declared that the king must be under God and Law. The
classic exposition of the principle of rule of law is to be found in the work of A.V Dicey the title
”introduction to the study of the law of the constitution”. Although the principle has different
meaning, it is mainly understood to refer to 3 things in public administration that is:
• Judicial independence
This aspect of the rule of law requires that everything must be done according to the law. In relation to
administrative law every gvt authority which does some act that adversely affects the rights of a
person must be able to justify that action as authorised by law. This authorisation could either be
express or discretionary. Every gvt action must be legally sanctioned and any person aggrieved by
such action must have the right to go to court and have such action or ommission invalidated if not in
line with the laws. It requires gvt action to be conducted within a framework of recognised rules and
principles and abhors(discourages) unlimited discretion. It would apply in cases where the legislature
appears to have given overwhelming discretionary powers to a public authority. Rule of law seeks to
strike a balance between the need of fair and efficient administration and the need to protect citizens
from oppressive government.
The principle of legality is also applicable to criminal procedure and imposes a number of obligations
including the requirement that no one should be punished except for some legally defined crime and
the prohibition gainst retrospective application of legislation.
This principle prevents Government authorities or those in Government from acting ultra vires.
b) Judicial independence
Disputes about the legality of gvt actions are to be decided by judges who are independent of the
executive. In the common law set up, dispute between citizens and the gvt are resolved by ordinary
The rule of law requires that the law should be even handed between the citizens and the government.
It denies the government unnecessary privileges or excemptions from ordinary law.
Incorporation of the Rule of Law by the Constitution
Express references in the constitution as regard the rule of law. The constitution requires respect for
the rule of law in numerous aspects in its preamble. It requires respect for rule of law in numerous
aspects in its preamble it recognises the aspirations of all Kenyans for a government based on the rule
3. • Under Article 10 which provides for national values and principles which are
supposed to bind all state officers, public officers and all persons also
recognises the rule of law.
• In Article 91, an obligation is imposed on all political parties to promote the
rule of law.
• Article 131(2)(e) requires the president to ensure the protection of the rule of
• Article 156(4)(a) and Art 156(6) requires the attorney general as the principle
legal advisor to the government to promote, protect and uphold the rule of
• Article 238(2)(b) requires that national security be promoted and guaranteed
in accordance with utmost respect for the rule of law.
• Article 259(1)(b) requires interpretation of the constitution to be in manner
that promotes rule of law.
Natural justice require that procedure should not be secondary to the substance of a decision. Its
logic is that as government powers and actions become more drastic and invasive, fair procedure
would make them more tolerable. In origin and character, rules of natural justice are largely common
law, though continually embraced by legislation. Courts play a critical role in ensuring that rules of
justice do not run amok....the rules protect citizens from unfair actions while protecting public
officials from unwarranted accusations. Decisions made without bias are not only more acceptable
but also of better quality because they are consultative and avoid further friction in their enforcement
COMPONENTS OF NATURAL JUSTICE
There are 2 fundamental rules of justice;
• A man may not be a judge in their own case. (nemo judex in resua)
• A man’s defense must always be fairly heard. (audi altarem parte)
These principles not only apply to judicial authority but to all administrative authorities and in some
instances private contracts. Natural justice is a conner stone of administrative law and the most
litigated area of law. Principles of natural justice are so fundamental that not even the parliament can
halt their application. The 2010 COK makes various references to the principle of natural justice:
• Art 47
• Art 50(1)-every person has the right to have any dispute that can be resolved by the
application of law decided in a fair and public hearing before a court or another independent
and impartial tribunal.
4. No man can be a judge in his own case- nemo judex in resua
The court declared invalid a decision in the college of physicians to impose a fine and imprison doctor
bonham for practising in London without permit from the college. The college was a judge in its own
case because half the fine paid went to the college.
A decision by a judge was nullified for affirming decrees in favour of a company in which he was a
A solicitor was acting for a client against a motorist for damage caused in a road accident. The
solicitor also served as a clerk to judges before whom the same motorist was convicted of dangerous
driving. He had retired with the judges when they were considering their decision. Justice should not
only be done but should manifestily and undoubtedly be seen to be done.
The court of appeal concluded that there was a real danger that a lay observer with knowledge of the
facts would not have excluded the possibility of a bias.
A man’s defense must always be fairly heard-audi altarem parte.
This principle is broad enough and would cover even the first principle because fair hearing must be
an unbias hearing.
Lord parker “private or domestic tribunals have always been outside the scope of certiorari since their
authority is derived solely from contract, that is from the agreement of the parties concerned”
This doctrine of legitimate expectation has developed to require application of natural justice in cases
where though not expressly required there is a legitimate expectation of consultation based on a
promise or an established practice of consultation.
5. The question whether there is a legitimate expectation is one of fact and the expectation be subject to
It could be acceptable where the adjudicating authority has no discretion
Lord Wright stated; if the principles of natural justice are violated, it is indeed immaterial whether the
same decision would have been arrived at in the absence of the departure from the essential principles
of natural justice.
Following boardroom wrangles between rival directors of CMCH, the capital market auhtority
suspended trading in the shares of the company. Prior to intervention by the capital markets authority,
the company had instructed Prime Waterhaul Coopers to carry out a forensic audit covering particular
areas of the company business. The CMA separately commissioned Webber Wentzel to conduct
forensic investigation into certain aspects of the financial operation of the company and its
subsidiaries. Webber Wentzel was also required to review the PWC report and comment on the
chronology and the conclusions drawn in the report. The CMA send the petitioner a copy of the
Webber report and informed him that the board had appointed an ad hoc commnittee to cunduct
investigation. The petitioner was requested to appear before the committee. The petitioner declined the
invitation arguing that his appearance before the committee would occassion grave prejudice to him
and to court proceedings over the same matter. The committee conducted its investigations and handed
over its report to the CMA. The CMA subsequently announced through a press statement that they had
taken enforcement actions against the petitioner and that the petitioner had been disqualified from any
appointment as director of any listed company. The court held that the authority had breached the
petitioners right to fair administrative action by failing to accord him a fair opportunity to respond to
the findings of the committee before taking action against him.
The high court considered the difference btn Art 47 and 50 of the 2010 COK and noted that Art 47 and
50(1) protect separate and distinct rights which should not be conflated, that although the two rights
embody and give effect to the general rules of natural justice they apply to different circumstances. Art
50(1) applies to a court, tribunal, or a body established to resolve a dispute while Art 47 applies to
administrative action generally.
Lord Morris stated: there are in my view, no words which are of universal application to every kind of
inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the
circumstances of the case.
6. The court stated: the right of a man to be given a fair opportunity of hearing what is alleged against
him and of presenting his own case is so fundamental to any civilised legal system that it is to be
presumed that parliament intended that a failure of service should render null and void any decision
reached in breach of any of these requirements. See; Nancy Baraza’s case. Republic vs public
procurement administrative and review board. Nyongesa and others Vs Egerton University.
The office of an ombudsman is an aspect of non-legal remedies which may be involved against
irregular government action. It is a recognition that court procedure is too formal, expensive and slow
and may not be appropriate for all complains. It provides a regular feedback mechanism based on
impartial assessment and committment to remedy any complaint. The concept of an ombudsman is
also known as a parliamentary commissioner for administratrion. Since the introduction of the
concept, it has gained massive popularity and its application has been extended to other areas like the
management of professional affairs. Ombudsman is a scandinavian word that means an officer or
commissioner with the duty to investigate and report to parliament on citizens’ complains against the
government. All an ombudsman requires is the power to investigate. He is not a court of appeal and
cannot alter or reverse government action. His powers reside in his capacity to focus public and
parliamentary attention upon the grievancies of citizens. Once the ombudsman makes its report public,
government departments become apprehensive about parliamentary intervention and focus by the
media. Once an ombudsman receives a complaint he should access the relevant department, speak to
the officials, read the files and find out exactly who did what and why. In the UK, the office of the
ombudsman was established in 1967. It is a commissioner and reports its findings to the parliament. In
Kenya this office was first established in 2007 through gazette notice number 5826 of 29th June 2007.
It was established under sec 23 of the replaced COK that gave the president the full executive
authority. Originally when introduced in Kenya this office was known as standing committee on
public complains. The estabishment of the office of the ombudsman in 2007 followed long agitation
and the fact he was to report to the president was a compromise. The question of creating this office
had been variously discussed earlier. It was recommended by the Ndegwa Commission in 1971. It was
mentioned in the sessional paper in 1974. Again it was recommended in the Waruhiw commission of
1980. It was discussed in parliament in 1985 & again in 1995. The government opposed the creation
of this office on account of a misunderstanding about the work of an ombudsman and it argued that
creating the office would lead to duplicity within administrative rounds. The AG opposed a motion in
1995 to create the office saying that the proposed office had too much powers beyond what is
envisaged in other countries. To the same motion an assistant minister in the office of the president
responded that “Mr. Temporary speaker sir, this request for the office of an ombudsman is not a very
recent thing. It is basically a brain child of a certain school of thought in the university of Nairobi. I
have attended a very bright lecture in administrative law that touches on this question of ombudsman
and i have always liked to treat it as an academic subject. Why should we create an office that
performs the duty which is performed by other offices in this country, there is absolutely no reason to
duplicate functionaries that are going to undertake the same purposes” Hansard November 8th 1995.
The 2010 COK establishes this office in Art 59. That article is implemented by the commission on
administrative justice Act of 2011. It establishes a commission on administrative justice. The
7. commission is established as a successor to the public complaints standing committee. The
commission is similar to other commissions created under art 59 of the 2010 COK and has powers to:
• Conduct investigation on its own initiative or upon a complaint,
• Powers necessary for reconciliation, mediation and
• Power to recruit its own staff.
• Power to perform any function assigned by legislation
The commission is headquatered in Nairobi but may create other branches.
Function of the commission
To investigate any conduct in state affairs both at the national government level and the
county government level.
To investigate complains of abuse of power and other malpractices within public
To report by-annually to the national assembly on complains investigated and action taken
To enquire into allegations of mal-administration, delay and other administrative injustices.
To facilitate the setting up of and to build complaint handling capacity in the public sector.
To recommend compensation or other appropriate remedies against persons or bodies to
which the Act applies.
To promote ADR methods in the resolution of complaints on public administration.
To provide advisory opinions and proposals on how to improve public administration.
To promote and protect human rights and to perform any other functions required by the
constitution or any other writen law.
The commission is made up of 3 commissioners and 1 secretary. The tenure of office for the
commisioners is a one 6 year term non-renewable. Complains to the commission may be made by
anybody and they may be made orally or in writen form.
JURISDICTION OF THE COMMISSION
It may be triggered upon a complaint or on its own volition. The matter complained against must be
administrative and must involve a public office or a state corporation or any other body or agency of
the state. According to sec 2 of the Act, an administrative action is one that relates to administration
A decision made or an act carried out in the public service.
A failure to act in discharge of public duty.
The making of a recommendation to a cabinet sectretary.
An action taken pursuant to a recommendation made to a cabinet secretary.
The jurisdiction of the commission is limited in the following instances:
Proceedings or a decision of the cabinet or a committee of the cabinet
A criminal offense
A matter pending before any court or judicial tribunal.
The commencement of the conduct of criminal or civil proceedings before any court or
The grant of any onus or awards by the president.
8. A matter relating to the countries foreign policy.
Anything in respect of which there is a right of appeal or any other legal remedy unless the
appeal or legal remedy is not available to the complainant.
Any matter pending under investigation by anybody or commisssion established by the COK
or any other writen law.
The commission may investigate administrative action despite a provision in writen law providing that
the action is final or cannot be appealed challenged reviewed or called to question. The commission
may decline to investigate a complaint but such a decision must be communicated to the complainant
and the reasons therefore provided. Hearings of the commission must be public unless considered
inappropriate. Upon completing its inquiry, the commisssion may take the following action:
• Where the investigations reveal a criminal offense, refer the matter to the director of public
prosecutions for action.
• It may recommend to the complainant any other form of judicial redress.
• It may recommend to the complainant and the relevant governmental agency other appropriate
methods of settling the complaint.
• It may submitt summonses as it deems necessary
9. ENFORCEMENT OF ADMINISTRATIVE LAW
There are 3 different types of remedies:
Private law remedies. Eg, damages, injunctions etc
Public law remedies also known as prerogatove remedies. Eg, certiorari, prohibition and
Special statutory remedies
They could be prayed for separately, jointly or in an alternating manner. The choice of remedy may
determine the procedure for enforcing that remedy. Art 22(1) of the COK grants everybody the right to
institute court prceedings to vindicate a fundamental right. Art 23(3) provides that in any proceedings
brought under Art 22, the court may provide remedies which include:
o A declaration of rights
o An injunction
o A conseravatory order
o A declaration of invalidity of any law.
o An order for compensation.
o An order for judicial review.
PUBLIC LAW REMEDIES
They are discretionary in nature and thats why they are called prerogative. They include an order for
certiorari, prohibition and mandamus.
It seeks to quash a decision or action that has already been made. It brings to the high court the
decision of an inferior tribunal or authority in order that it may be investigated and possibly quashed.
It puts inferior tribunals within the proper confines of their limited jurisdiction. Certiorari seeks to
address something that has happened already.
It is futuristic in nature to prohibit an action that is yet to occur in future.
Is compelling in nature and is employed when a person wants to compel a government authority to do
something required by the law.
Public law remedies are obtained through the proceess of judicial review provided for in order 53 of
the civil procedure rules. Application for judicial review is done at 2 stages:
o Preliminary stage- to obtain the leave of court to seek the prerogative orders. Application for
leave is made ex-parte by way of chamber summons. The application must be accompanied by
a statement setting out the name and the description of the applicannt the relief sought and the
grounds supporting it. Application for leave may operate as an order of stay if the court
o Filing of the main application- it is filed by way of a notice of motion and must be done 21
days after the grant of leave