1

“…Pursuant to Section 31 of the Kenya Citizenship and Immigration Act, 2011 you are

hereby notified that the passport which is in your possession remains suspended

forthwith...Consequently, you are directed to surrender your passport to the immigration offices

at Nyayo House within 21 days, failing which the document will be declared null and void…”

read a letter addressed to 15 NASA leaders by the Director of Immigration Gordon Kihalang’wa

in the wake of the 30th January 2018 “swearing in” of NASA-leader Raila Odinga as the

“People’s President at Uhuru Park, Nairobi (see “State suspends passport of top Nasa leaders,”

The Daily Nation newspaper, 7th February 2018 page 6).

Using the RELEVANT provisions of the Constitution of Kenya, Kenya Citizenship and

Immigration Act, 2011 and case law, critically analyse the said action of the Director of

Immigration in light of RELEVANT substantive and procedural principles of administrative law.

Fair Administrative Action

The nature of administrative law is primarily focused on official action. It relies on

common law and arises when an individual becomes a victim of an arbitrary exercise of public

power. Administrative action is often equated to social justice achieved through fairness in

administrative processes and just outcomes1. The Constitution of Kenya guarantees that every

person has the right to administrative action that is expeditious, efficient, lawful, reasonable and

procedurally fair2. Individuals have a legitimate expectation that administrative actions and

decisions are founded upon explicable reasons, regardless of whether the outcome is wrong.

Administrative action must be accessible and the cost equitable to the community. There must be

an intelligible explanation regarding the decision-making3. The fair process constitutes

administrative action. The administrative justice system must provide a principled, expansive

and accessible review system, and the government decision-makers must inform individuals

affected by the government decisions of their right to review4. The citizens have a right to access

reasons for administrative actions and the right to access information held by the government5.

The Constitution of Kenya guarantees the protection of all citizens6 and the right to fair

administrative action7 , which guarantees the promotion of individual fundamental rights and

freedoms. Individuals must have a right to demand fairness, reasonableness, and justified powers

regarding administrative action. Fair administrative action is established as a guiding principle

1
Matthew Groves, ‘Ombudsman’s Jurisdiction in Prisons’ (2002) 28 Monash University Law Review, 181
2
Article 47(1)
3
Robin Creyke and John McMillan, ‘Administrative Justice- the Core and the Fringe’ (1999). Available at
http://www.aial.org.au (accessed on 18 January 2024).
4
Mark Aronson et al, Judicial Review of Administrative Action (3rd ed, 2004) p. 14.
5
Ibid
6
The Constitution of Kenya, 2010, Preamble, paragraph 5
7
Ibid, paragraph 6.
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that promotes the mechanisms that safeguard individual rights and limit excessive use of powers

by various administrative bodies8.

Rule of Law

The Rule of Law is the cardinal principle in the administration of administrative law. The

basis of all established laws and principles underscores all governance matters. It provides the

standards against which official government action is accessed9. The laws and principles must be

consistent with international human rights norms and standards. It follows that the Rule of Law

binds administrative bodies in exercising their mandate10. The Rule of Law principle operates

under the tenets of legality, judicial independence and fairness. Under legality, it follows that

every government action must be legally sanctioned, and any individual aggrieved by the action

must have the right to seek legal redress under the law11. It requires every government action to

be within the confines of the law and discourages unlimited discretion. The principle of

lawfulness requires that the law that provides for the functions and powers of the administrative

authorities should be validly enacted, sufficiently clear and specific. It also requires that unlawful

administrative acts must, in principle, be withdrawn12. The principle of legality seeks to balance

between a fair administration and protecting citizens from oppressive government. Under

fairness, the rule of law requires that the law shall be even-handed between the government and

8
8John Locke, Two Treatises of Civil Government (1690). Available at https://librivox.org/two-treatises-of-
civil-government-by-john-locke/ (accessed on 18 January 2024).
9
Beukes, ‘The Constitutional Foundation of the Implementation and Interpretation of the Promotion of
Administrative Justice Act No. 3 of 2000’ in Lange and Wessels (eds), The Right to Know: South Africa’s
Promotion of Administrative Justice and Access to Information Acts (2004), p.12.
10
Albert Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) (1915). Available at
https://oll.libertyfund.org/title/michener-introduction-to-the-study-of-the-law-of-the-constitution-lf-ed (accessed on
18 January 2024).
11
Article 10
12
Republic v the Deputy Inspector General of the National Police Service & 2 Others exparte PC Morris
Sagala & 29 Others, Nairobi High Court Misc. Application No. 93 of 2013(JR), where the High Court held that the
Inspector General of the National Police had no power under the Constitution to ‘transfer’ members of the National
Police Service from one station to another, as he had purported to do.
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the citizens13. It safeguards the citizens against the government’s unnecessary privileges or

exceptions.

Natural Justice

The principles of natural justice are the rules that govern procedure and the conduct of

administrative bodies. The principles of natural justice are provided for under the Constitution of

Kenya, 201014 . They are applicable to the extent that the public body has the power to determine

a question affecting an individual’s rights. The principles of natural justice are applicable even in

the absence of the statutory powers that authorize their applicability. The violation of the

principles of natural justice often results in arbitrariness that compromises equality. The

principles of natural justice denote the principle of Audi Alteram Partem, which means that no

person shall be condemned unheard15. The principles provide the rules against bias, the right to

be heard, prior notice, giving reasons and the disclosure of information by government bodies

against an individual.

In instances where an administrative body fails to hear the concerned individual, the

decision it makes is likely to be invalidated upon review. It applies in common law that the right

to be heard is critical to ensure that the adequate administration of justice as an individual is

presumed innocent until proven guilty in a court of law, as held in Woolmington v D.P.P 16. The

administrative body must operate under the law, and the powers must not be abused or exercised

13
Article 27
14
Supra Note 2 and Article 50
15
The principle captured by Isaacs J in the case of Thomas A Edison Ltd v Bullock . The jurisprudential
principle asserts that no man is to be condemned unheard, and no order should be prejudicially made against a party
unless they have an opportunity to be heard in their defense.
16
The approach of the common law to the presumption of innocence was memorably stated by Viscount
Sankey LC in Woolmington v D.P.P. 1935 AC 462, 481 to be that "Throughout the web of the English criminal law
one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt
 5

ultra vires17. In the Republic v the Deputy Inspector General of the National Police Service & 2

Others exparte PC Morris Sagala & 29 Others18, it was held that the Inspector General of the

National Police had no power under the Constitution to ‘transfer’ members of the National Police

Service from one station to another, as he had purported to do.

The Kenya Citizenship and Immigration Act

The Act19 provides for all the matters relating to citizenship and the issuance of travel

documents and immigration. Under the Act, the Director of Immigration is empowered to

suspend or confiscate a passport or any other travel document20. However, the law enforcement

officer shall do so in accordance with the provisions of the conditions of the Act and provide

notice in writing citing the reasons for the confiscation or suspension21. The Director of

Immigration must provide clear and specific reasons for the suspension, as required by

administrative law principles.

The action taken by the Director of Immigration to suspend passports belonging to 15

NASA leaders was against the substantive and procedural principles of administrative law. The

Director of Immigration failed to provide adequate and reasonable grounds for the suspension of

their passports as stipulated under the Act22. Moreover, the Director of Immigration failed to

exercise his mandate arbitrarily and unlawfully, and the courts can declare the decision to be an

abuse of power. The principle of lawfulness requires that the law that provides for the functions

17
Latin for Beyond Powers. Often denoted excessive use of powers or powers exercised beyond the
required scope.
18
Nairobi High Court Misc. Application No. 93 of 2013(JR)
19
Kenya Citizenship and Immigration Act, 2011
20
Section 31 (1) of the Kenya Citizenship and Immigration Act, 2011
21
Ibid Section 31 (2)
22
Ibid
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and powers of the administrative authorities should be validly enacted, sufficiently clear and

specific. It also requires that unlawful administrative acts must, in principle, be withdrawn.