JUDICIAL REVIEW
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
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 which functions as a court of law.
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 these writs issued in certain cases such as
those in which the principles of natural justice had not been
observed. All writs were in the form of commands issued by the Crown
(King or Queen). These writs were later codified into English Law
meaning that when they issued from the Crown, they were verbal which was later
introduced in Kenya with the advent of colonialism.
Please Note: Over time there
have been significant developments in England with regard to judicial review
and the issue of these 3 orders, Mandamus, Prohibition and Certiorari and most
importantly many cases concerning judicial review have been decided in England
which are of persuasive authority and guidance to our courts in Kenya
especially in areas where Kenya’s jurisprudence in relation to Judicial Review
has not developed. Therefore in the absence of Kenyan Court Cases
setting out or clarifying matters concerning Judicial Review, we will rely on
English Cases for illustration.
Our discussion now concerning Judicial
Review will focus on the introduction of Judicial Review in Kenya.
INTRODUCTION
OF JUDICIAL REVIEW IN KENYA
In Kenya the birth of prerogative orders
(prohibition, mandamus and certiorari) came with the application of the
colonial administration of justice through a statute called “Administration
of Justice (Miscellaneous Provisions) Act of 1938 in particular
Section 7 of this Act provided that in any case in which the High Court
of England may by virtue of the provisions of the Section issue prerogative
writs of Mandamus, Prohibition and Certiorari the High Court of Kenya shall
have power to make a like order i.e. they empowered the High Court in
Kenya to act in providing redress by providing the same order which could not
previously issue.
Another 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 incident, and subsequent
expropriations of British property by the Egyptian government. The
United Kingdom Government entrusted the distribution of compensation to the
Foreign Compensation Commission and section 4(4) of the Foreign Compensation
Act provided that ‘The determination by the Commission of any
application made to them under this Act shall not be called into question in
any court of law.’ The statutory instrument defining the powers of the
Commission in relation to applications arising out of the Suez incident
contained complicated and obscure provisions as to the nationality of
applicants for compensation. The object was to ensure that only
those of British nationality received compensation, be they the original owners
of the property lost or damaged, or their successors in title. Anisminic was
a British company but its property had been first sequestrated and then sold to
an Egyptian organization. The Commission interpreted the statutory
statement defining proper applicants for compensation as excluding Anisminic because
their successor in title was of Egyptian nationality. The House of
Lords held that the Commission had misconstrued the instrument because where
the original owner of the property claimed he was British the nationality of
his successor in title was irrelevant. The Commission had considered
a matter totally irrelevant to the questions which they had been granted
jurisdiction to determine. They had embarked on an enquiry beyond
the limited inquiry directed by Parliament. Accordingly they had
exceeded their jurisdiction and their purported determination was invalid and
not protected by the provision preventing proper determination of the
Commission being questioned in courts.
4. ERROR
OF LAW
An error of law is a condition or an act
of ignorance, negligence or imprudent deviation or departure from the law.
Ignorant departure
would include a situation where an administration official is ignorant of the
law. If the minister of local govt for example has no idea that he
cannot sack an elected mayor, this is an act of
ignorance.{Msa} Negligence would be where an
admin body fails to do what the law provides and in this case they have failed
to look up the law to see what it provides.
This can result from a number of things
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 to grant licences. In this case they decided they
were only going to give liquor licences to Africans. The Court ruled
that they had exercised their discretion improperly by deciding to issue
licences only to Africans.
8. IRRELEVANCY
Irrelevancy is one of the grounds of judicial
review. What is irrelevancy?
Irrelevancy occurs in two situations that the courts
will consider as amounting to irrelevancy
(i) Where
a decision making body considers a matter which it ought not to consider in
arriving at a decision; e.g. if on the basis of a gender a licence
is denied.
(ii) Where
an administrative body disregards something, which it ought to consider in
making a decision.
Secretary of State for Education and
Science V. Tameside Metropolitan Borough Council (1977) A .C. 1024
In this case the court stated that in its decision in
the process of review it is for a court of law to establish whether in reaching
the unfavourable decision complained of a public body has taken into
consideration matters which upon the true construction of the act at issue
ought not to have been considered and excluded from consideration matters that
were relevant to what had to be considered.
Wenesdbury Case
9. BIAS
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. You have a sufficient interest in the matter if you
will be directly affected by the matter.
PROHIBITION:
The order of Prohibition is an order
issued by the High Court which prohibits a body (administrative bodies) from
continuing proceedings; it will also prohibit a body from continuing to carry
out decisions wrongly or wrongfully made. This order may be issued
against judicial body acting in an administrative capacity i.e industrial
court. It can also issue against an administrative body performing
administrative duties or against the government officials etc. It
can be issued to stop a public body from continuing proceedings that are ultra
vires. It can also be issued to stop an admin body from continuing
to do something in excess of jurisdiction. It can also be used to
stop an administration body from abusing their powers.
R V. Electricity Commissioners Ex parte Electricity
Joint Committee (1924) 1 K.B 171
At Page 559 Lord Denning stated as follows
“It is available to prohibit
administrative authorities from exceeding their powers or misusing them.”
Lord Atkin in the same case said as
follows
“If proceedings establish that the body
complained of exceeded its jurisdiction, by entertaining matters which would
result in its final decision being subject to being brought up and quashed on
certiorari, I think that Prohibition will lie to restrain it from exceeding its
jurisdiction.”
This illustrates the point that
prohibition will lie to restrain an administrative body from doing something
wrongly or misusing its power, abuse of power etc.
When one applies for the order of
Certiorari, one is seeking to quash a decision that has already been
made. At the time of application for judicial review, the order
you seek the court to quash must be presented to the court by making a
photocopy of the order and attaching it to the Application.
With Prohibition, you do not have to
attach the copy of the order.
MANDAMUS:
The order of Mandamus is derived from the
Latin word Mandare meaning to command. It is a court order issued to
compel the performance of a public duty where a public body or official has
unlawfully refused, declined or otherwise failed to undertake the
duty. Mandamus is a court order issued to compel the performance of
a public duty where a public body or official has public refused failed or
declined to undertake a duty.
Mandamus issues where there is a duty
imposed by statute or common law. Please note that the duty must be
a public duty, Mandamus will not issue in respect of a duty that is of a
private nature even if the body in question is a public body. For
example where two construction companies agree to undertake some work who agree
to resolve any dispute between them by arbitration through the industrial
court. The industrial court will be performing a private function
and thus the order of Mandamus cannot issue.
For Mandamus to issue, the
Applicant must have made a request for the performance of a public duty which
has been refused, declined or ignored. This means that if a
public admin body refused to do something, you must approach it and request it
to perform the function or the courts will not hear
you. Unreasonable delay on the part of the public body will be
treated as refusal. The duty must be a specific duty. You
cannot apply for the order of Mandamus for a duty that is general, it must be
specific e.g. under the English Gas (1972) it was the duty of the British Gas
Corporation to develop an efficient coordinated and economical system of Gas
supply for Great Britain. Such an obligation is so imprecise i.e. it
is so general that it would not be enforceable by the order of Mandamus. The
lack of specificity does not mean that it is meaningless. Duty can
be carried out but it is not precise. Mandamus is used to enforce
performance of specific duties and not the exercise of mere powers.
Kenya National Examination Council V.
R Ex parte Geoffrey Gathinji Njoroge &
others Civil Appeal No. 266 of 1996
Justices of Appeal Tunoi and Shah stated
as follows regarding the powers of the Kenya National Examination Council
“The times and frequency of the examinations are left
to the discretion of the council and it cannot be enforced by Mandamus to hold
an examination at any particular time of the year.
Daniel Nyongesa &
Others V. Egerton University College Civil Appeal NO. 90 of 1989
In this case Nyongesa’s exam results were
held by the university and when he went to court, the court issued an order of
mandamus for the court to release the results. Nyongesa had requested the
university for his results and they had refused so he applied for an order of
mandamus to the court and he was granted. There was a specific duty
for the university to release the results.
DISTINCTION BETWEEN JUDICIAL REVIEW AND
ORDINARY REVIEW (REVIEW OF JUDGMENT)
Order XLIV Civil Review – APPLICATION FOR
REVIEW OF JUDGMENTS
In addition to judicial review there is
what is known as ordinary review. Judicial review is covered under
Order 53 and Ordinary Review is provided for under Order 44 of the Civil
Procedure Rules.
Ordinary Review is a review of
judgment or order of a court of law.
Judicial review is a review of an
act or a decision of an administrative body.
When can a person review an ordinary
review in a different court?
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 is subordinate to the
High Court even though it is presided over by a Judge.
Kenya Airways Limited V.
Kenya Airways Pilots Association H.C. Nai. Misc App No. 254 of 2001
Judicial Review is not an Appeal.
Distinction between Appeal and
Judicial Review
An Appeal has been described as the
transfer or taking of a case from a lower court to a higher court in the hope
of reversing or modifying the decision of the former. An Appeal
involves taking a case to a higher court for rehearing to determine whether the
decision arrived at by the lower court was right or wrong. When one
appeals a decision, one is claiming that it is wrong or incorrect on the basis
of evidence tendered and the applicable law and that the appellate body should
change the decision. For example if X was found to have defamed Y
upon judgment X might appeal that finding or the amount of damages which the
court awarded to Y. the court of Appeal if persuaded of the merits
of the case may allow X’s Appeal in which case the court substitutes its view
for that of the lower court. Thus we can say, that on the other hand
with judicial review, a court is not concerned with the merits of the case in
other words, a court is not concerned with whether the decision was right or
wrong on the basis of the evidence tendered and the Applicable Law, but with
whether the decision making process was lawful or unlawful.
Whereas an appeal is concerned with a
decision, )it is concerned with whether a decision was right or wrong) judicial
review is concerned with the decision making process.
Chief Constable of North Wales Police V.
Evans [1982] 1 WLR 1155
In this case the court stated in an effort
to distinguish judicial review from an appeal that the purpose of judicial
review is to ensure that an individual is given fair treatment by a wide range
of administrative authorities be they judicial quasi judicial or purely
administrative to which the individual has been subject. It is no
part of that purpose to substitute the opinion of the judiciary or the
individual judges for that of the authority constituted by law to decide the
matter in question. The consequences of finding that a decision or a
decision was unlawful, and the consequences of finding that the decision making
process was unlawful, improper or flawed is that it is
invalidated. This means in the case of Judicial Review, that the
court can order a decision to be made again but the second time, it must be
made in accordance with the law. Please note that it would be
acceptable for the decision maker to come to the same conclusion provided the
law is respected.
Mirugi Kariuki V. Attorney General [
The Appellant was charged with
Treason. He petition the Attorney General to grant leave to an
English Barrister to lead his defence. In the exercise of his
absolute discretion to consider such a request conferred by Section 11 of the
Advocates Act, the Attorney General wrote a letter to the Appellant saying that
leave would not be granted because the Appellant’s trial was straight forward
and would not require the assistance of a foreign advocate. In an
application for Certiorari to quash the Attorney General’s decision, the court
found that the grounds on which the Attorney General’s grounds were founded
were suspicious. The Court removed the offending letter to the High Court
quashed it and directed the Attorney General to reconsider Mr. Kariuki’s
request in a manner more respectful to the norms of sound administration.
The point is that even if the law was not
followed in the first place, the court can order that body to reconsider the
matter.
With Appeals, if there is a right of
appeal and an appeal succeeds, the Appellate Court will substitute its own
decision for that of the inferior tribunal and dispose of the case accordingly.
Another attribute of appeal is that it is
granted by statute. Unless a statute expressly allows appeal, an
aggrieved party cannot lodge an appeal against a decision. In cases
where appeals are allowed against administrative decisions or actions, the
relevant law will expressly state that Appeal is allowed. On the
other hand in judicial review, the court exercises inherent powers, which gives
it authority to review unlawful decisions. In other words, there
need not be express statutory provisions authorising the High Court to exercise
judicial review over an administrative decision, or an administrative action.
Please note that even if a statute
specifically excludes appeal to a Higher Court, this does not bar the High
Court from exercising powers of judicial review.
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 Airways Pilots Association H.C.
Nai. Misc App No. 254 of 2001
The ouster clauses also appear in form of
finality clauses i.e. “decision of this body is final and conclusive
and shall not be questioned in any court.” A Statute may also
say that the decision of this body shall not be questioned in any legal
proceedings. When such clauses appear, does it necessarily mean that the court
cannot inquire into a decision through judicial review? The answer
is simple it is important to note that if such statutory provisions were
interpreted literally it would mean that an aggrieved person is bound by the
decision of an administrative body however unlawful that decision
is. Literally it would mean that no court is entitled to go behind
that decision by way of judicial review. However, the attitude of
the courts and the practice especially in Kenya show a trend that courts will
disregard such provisions in other words courts will disregard ouster clauses
and proceed to review administrative decisions and administrative actions.
In almost every case, the practice is that
the courts will regardless of such ouster clauses review an administrative
decision.
The general attitude of judges, which
includes judges in this countries and others is that access to the courts can
only be excluded by very clear words to that effect and that even where those
very clear words are present, those statutory provisions purporting to deny
access to justice (ouster clauses) will as far as possible be interpreted in
favour of the citizen. This point is illustrated
in an English Case
Re
Gilmores Application (1957) 1 QB 574
Lord Denning state “The remedy of
Certiorari is never to be taken away by any statute except by the most clear
and explicit words. The word ‘final’ is not enough. That
only means without appeal. It does not mean without recourse to Certiorari. It
makes the decision final on the facts but not final on the
law. Notwithstanding that the decision is by a statute made final,
Certiorari can still issue for excess of jurisdiction or for error on the face
of the record. If tribunals were to be at liberty to exceed their
jurisdiction without any checks by the courts, the rule of law would be at an
end.”
By extrapolation this rule of Lord Denning
would apply to Mandamus and Prohibition
In Kenya the High Court has ruled that
where there is an ouster clause, for example the one appearing in Section 17(2)
of the Trade Disputes Act, the High Court nevertheless has jurisdiction to
interfere with the decision of an administrative body if anyone or more of the
grounds of the judicial review are present. The best case that
illustrates this is
Kenya Airways Limited V. Kenya Airline Pilot Association
