NAME: NEVLA KOOME

ADMISSION NUMBER:1062513

UNIT CODE:CLS 124

UNIT NAME:ADMINISTRATIVE LAW

QUESTION

Think of a contemporary issue using a decided case in kenya explain the tenets of administrative
law
Table of Contents
Introduction....................................................................................................................................3

Corruption &embezzlement of public funds................................................................................3

Principles of administrative law...................................................................................................5

Natural justice............................................................................................................................5

Accountability and Trasparency..............................................................................................6

Rule of law..................................................................................................................................8

Propotionality and reasonableness...........................................................................................9

Judicial review..........................................................................................................................11

Good governance......................................................................................................................12

Sources of Administrative law....................................................................................................14

Judicial precedents...................................................................................................................14

Common law.............................................................................................................................17

Conclusion....................................................................................................................................20

References and bibliography......................................................................................................21

Introduction
Corruption &embezzlement of public funds
Corruption involves the misuse of authority or power for personal benefit. It encompasses
actions like bribery, influence peddling, and embezzlement, along with practices such as
lobbying, which may be legal in some jurisdictions. Article 79 of the Constitution grants
Parliament the authority to create legislation that establishes the Ethics and Anti-Corruption
Commission (EACC) and defines its functions.

Under the Anti-Corruption and Economic Crimes Act (ACECA), the EACC is tasked with
investigating corruption and ethics violations. Once investigations are complete, the EACC
submits its findings to the Director of Public Prosecutions (DPP), who reviews the evidence and
determines whether to pursue legal action, as outlined in Section 11(1)(d) of the EACC Act.

Corruption negatively impacts society by misallocating resources, inflating public project costs,
and discouraging investment. It also undermines the delivery of essential public services like
healthcare, education, and infrastructure development, while eroding trust in government
institutions and the rule of law.

Embezzlement refers to the fraudulent misappropriation of funds or assets entrusted to an

individual, often in an official capacity. Mismanagement of public funds typically arises from
procedural lapses, such as bypassing procurement processes, failing to disclose financial details,
or lacking accountability mechanisms. The diversion of public resources meant for critical
sectors like education, healthcare, and infrastructure stifles economic growth and development.

The Anti-Corruption and Economic Crimes Act of 2003 criminalizes embezzlement and other
corrupt practices. The EACC investigates such offenses and can recommend prosecution for
those involved. Additionally, the Public Finance Management Act, 2012, provides guidelines on
handling public finances to prevent misuse, while Article 227 of the Constitution of Kenya,
2010, mandates efficiency and accountability in public expenditure. However, embezzlement
often involves complex networks spanning both public and private sectors, making it difficult to
trace and prosecute. Weak auditing systems and insufficient financial transparency further hinder
efforts to track financial flows and combat corruption.
Principles of administrative law
Natural justice
Natural justice refers to the fair and reasonable administration of justice, ensuring procedural
fairness in decisions that affect a person’s rights, interests, or legitimate expectations. The
Constitution enshrines this principle, requiring decision-makers to afford individuals an
opportunity to respond to allegations or charges before any adverse action is taken. A core rule
of natural justice is that anyone facing the loss of a right or benefit must be informed of the case
against them and given a chance to present their defense.

The Principle of Audi Alteram Partem:

The Latin maxim audi alteram partem—meaning “no one shall be condemned unheard”—is
central to natural justice. It ensures individuals have a fair opportunity to address the allegations
brought against them. This principle came into focus during the impeachment of Nairobi
Governor Mike Sonko in 2019. He faced accusations of corruption, misappropriation of funds,
and abuse of office. Article 181 of the Kenyan Constitution provides for a two-step impeachment
process:

1. A resolution by the County Assembly.

2. A vote by the Senate to confirm the resolution.

During these proceedings, Sonko was entitled to present his defense, contest the evidence, and
participate in a transparent process. His lawyers argued that the impeachment process violated
his right to a fair hearing, citing insufficient notice and inadequate time to prepare his defense.
Sonko claimed the County Assembly failed to comply with procedural requirements, such as
allowing him adequate facilities to defend himself.

The Court’s Role in Reviewing Due Process

The High Court of Kenya examined whether the County Assembly adhered to the proper
impeachment procedures and upheld Sonko’s right to be heard. The Court ruled that while the
Assembly conducted the impeachment proceedings correctly, due process remained a critical
requirement. Similarly, the Senate was required to follow natural justice principles, providing
Sonko a fair opportunity to respond to the allegations during its deliberations and vote.
Broader Allegations Against Sonko

In addition to the impeachment process, Sonko faced criminal charges, including embezzlement
of public funds, money laundering, and corruption. His administration was accused of opaque
procurement practices and illegally awarding tenders, raising concerns about accountability and
transparency. While public participation and transparency are not strictly components of natural
justice, they are often closely linked, particularly in decisions involving public resources. For
instance, public scrutiny of budgetary allocations and infrastructure expenditures ensures
accountability and discourages misuse.

The Importance of Natural Justice in Governance

Sonko’s case underscores the significance of fair hearings and impartiality in governance and
legal proceedings. Natural justice safeguards the rights of individuals while upholding the
integrity of administrative and legal processes. Whether through impeachment, criminal
prosecution, or administrative actions, adherence to due process ensures that decisions are free
from bias and misuse of authority. In this case, natural justice served as a safeguard for Sonko’s
rights while promoting transparency and accountability in combating corruption and
mismanagement of public resources.

Accountability and Trasparency

Administrative bodies have a fundamental responsibility to be transparent and accountable,
especially in managing public resources. Corruption and embezzlement erode this accountability
by enabling officials to evade scrutiny and avoid consequences for their actions. This lack of
oversight undermines public trust and creates significant barriers to holding perpetrators
responsible.

Transparency is a critical expectation for administrative bodies. Decisions should be openly

explained, and clear information must be shared with the public to justify actions taken.
However, embezzlement often thrives in secrecy, with officials deliberately concealing
information about public funds and operating without transparency. Such practices breach the
principles of accountability by preventing public and oversight bodies from monitoring decision-
making processes. This concealment can involve fabricating records, suppressing evidence, or
claiming non-disclosure to obscure unlawful activities.

Former Nairobi Governor Mike Mbuvi Sonko serves as a prominent example of the challenges in
combating corruption. Facing numerous charges, including corruption, assault, and terrorism-
related offenses, Sonko denies all allegations. Among these, he and his associates are accused of
misappropriating 357 million Kenyan shillings (approximately $3.5 million). Prosecutors claim
that money from contractors was funneled through Sonko’s accounts as part of a scheme to
benefit from city tenders. Despite pleading not guilty to over 30 charges, Sonko has been
implicated in bribery, money laundering, and conflicts of interest.

Sonko’s arrest and court appearances have been marked by drama, including scuffles with police
during his apprehension and public outcry from his supporters. While prosecutors allege that
Sonko knowingly acquired illicit funds, he maintains that the charges are politically motivated
and insists on his innocence. He has also faced allegations of avoiding court dates, drug
trafficking, and using intimidation tactics to cover up his activities. His arrest in Voi, where he
was forcibly flown to Nairobi, highlights the tensions surrounding high-profile corruption cases.

Corrupt officials often engage in strategies to evade accountability, such as falsifying records,
intimidating whistleblowers, and obstructing investigations. These actions not only impede
justice but also allow public funds intended for essential services to be siphoned off unlawfully.
Such misconduct disrupts economic development and undermines the credibility of governance
systems.

Ultimately, transparency and accountability are essential safeguards against corruption.

Administrative bodies must ensure that decisions, particularly those involving public funds, are
open to scrutiny and that any misconduct is thoroughly investigated and addressed. The Sonko
case underscores the broader need for strong legal frameworks and enforcement mechanisms to
combat corruption and uphold public trust in governance.

Rule of law
The rule of law requires that all powers exercised by public officials or administrative authorities
are both lawfully granted and exercised within legal limits. No authority is allowed to act beyond
the scope of its legal mandate. Article 2(1) of the Constitution establishes the supremacy of the
Constitution as the binding framework for all individuals and state organs, ensuring that no one
is above the law. Abuse of authority, such as mismanaging public funds through illegal means
like manipulating procurement processes or siphoning money intended for public services,
represents a clear violation of these principles.

Public officials entrusted with legal powers are expected to act within their mandates to serve the
public interest. Misusing these powers for personal enrichment or fostering corruption constitutes
a grave betrayal of public trust. This was evident in the case of Hon. Mike Mbuvi Sonko, who
faced serious accusations of corruption, misappropriation of funds, and abuse of office during his
tenure as Nairobi Governor.

Sonko’s past was marked by legal controversies, including imprisonment in the 1990s for land
fraud and an escape attempt through bribery. Later, as governor, he allegedly diverted public
funds, awarded irregular contracts to companies linked to him, and manipulated public resources
for personal gain. Despite his political influence, Sonko was held accountable under the law. His
impeachment followed constitutional processes, with both the Nairobi County Assembly and the
Senate adhering to due process before confirming his removal from office. The evidence
presented against him formed the basis for his impeachment, not political favoritism or external
influence.

In the criminal cases against him, Sonko was subjected to the same legal standards as any other
citizen. The judiciary and investigative bodies, including the Ethics and Anti-Corruption
Commission (EACC) and the Director of Public Prosecutions (DPP), ensured that the
proceedings were conducted transparently and subjected to public scrutiny. This transparency
aligned with the rule of law, which demands that justice be open and accessible, particularly in
cases involving high-profile individuals accused of corruption.

The public interest in Sonko’s case stemmed from the gravity of the allegations and the
significant office he held. His trial demonstrated that no one, regardless of their political
standing, is exempt from accountability or the rule of law. The judiciary and oversight bodies
acted as impartial arbiters, ensuring that Sonko's financial dealings and actions as governor were
thoroughly investigated and adjudicated without bias.
Sonko’s case underscores the principle that the rule of law guarantees equal treatment before the
law, regardless of status or influence. Transparency and public scrutiny remain critical in
upholding this principle, ensuring that public officials are accountable and that justice is not only
done but seen to be done.

Propotionality and reasonableness

Administrative actions must be proportional to the issue at hand, ensuring they do not impose
unnecessary burdens on individuals or society. Disproportionate actions, such as diverting public
resources from critical areas to benefit a few individuals, represent a blatant misuse of power and
a breach of the principle of proportionality. When public officials exploit their positions for
personal gain, they act against the public interest, misallocating resources meant for the common
good.

Proportionality is essential in ensuring that any limitation on rights or public action serves a
legitimate purpose and is reasonably justified. Courts, in assessing whether an action is
reasonable, often consider factors such as:

 whether there is a valid and rational connection between the action and a legitimate
public interest, avoiding arbitrary or irrational decisions; and
 whether alternative measures could achieve the same result without infringing on rights
unnecessarily.

In Hon. Mike Sonko's case, he challenged the legality and constitutionality of his removal from
office through impeachment, arguing that the process was irregular and marred by procedural
violations. According to Sonko, the impeachment motion, dated November 25, 2020, was
forwarded to the Senate without adhering to the proper procedures. He was invited to a hearing
scheduled for December 16, 2020, but was only served with substantial evidence on the evening
of December 15, giving him inadequate time to prepare a defense. Additionally, his lawyer, Mr.
Evans Ondieki, was denied access to the County Assembly Chamber, further infringing on his
right to be heard.

Sonko argued that the County Assembly Standing Order No. 72(2), which requires furnishing the
accused with evidence at least three days before the debate, was violated. Moreover, he claimed
that the Senate failed to provide written reasons for its decision, contravening Article 10(1)(c) of
the Constitution, which mandates good governance, integrity, and accountability. He also
pointed out that senators voted uniformly on all charges without offering any justification for
their decision.

Sonko emphasized that the Speaker of the Senate refused to consider his Preliminary Objection,
and the Senate proceeded with deliberations and voting without addressing his concerns. He
referred to Prof. Migai Akech's assertion in Administrative Law that the rule of law requires
strict adherence to procedural mandates. According to Sonko, the failure of both the County
Assembly and the Senate to follow the established procedures undermined the rule of law and
led to an unjust outcome in his case.

Sonko's challenge highlights the importance of procedural fairness and proportionality in

administrative actions. Failure to adhere to proper procedures not only undermines the rule of
law but also risks causing injustice to individuals subjected to such actions. The rule of law
demands that all decisions, particularly those affecting governance, be conducted transparently,
justly, and within the confines of established legal frameworks.

Judicial review
Judicial review empowers courts to evaluate the decisions of administrative bodies to ensure they
are lawful, reasonable, and consistent with principles of justice. It serves as a key mechanism to
safeguard against the mismanagement or misappropriation of public resources by holding
decision-makers accountable for their actions and ensuring adherence to the law. This oversight
prevents administrative authorities from exceeding their legal powers and imposes accountability
for violations.

However, corruption can undermine the effectiveness of judicial review. In some cases, judicial
systems themselves may be compromised by corruption, eroding judicial independence and
rendering the process ineffective. Public officials accused of embezzlement or corruption may
seek to evade judicial scrutiny by interfering with court processes or undermining judicial
institutions.

In the case of Hon. Mike Sonko, judicial review played a critical role in assessing the legality of
his impeachment and the actions of oversight bodies involved. Sonko was impeached by the
Nairobi County Assembly in 2019 on charges of gross misconduct, including corruption and
misuse of public funds. He challenged the impeachment process, claiming it was
unconstitutional, biased, and violated his right to a fair hearing. Judicial review was invoked to
determine whether the Nairobi County Assembly and the Senate followed proper procedures and
adhered to constitutional principles such as due process and natural justice.

The High Court reviewed the case to assess compliance with the rule of law and fairness. It
found that the County Assembly had conducted a proper and constitutional impeachment
process, and as a result, Sonko’s petition was dismissed. The court’s ruling highlighted the
importance of judicial review in ensuring government agencies operate within the bounds of the
law, maintain fairness, and hold powerful individuals accountable for corruption.

Judicial review also examined the actions of investigative and prosecutorial bodies, such as the
Ethics and Anti-Corruption Commission (EACC). Questions of transparency, fairness, and
procedural adherence in Sonko’s investigation were addressed through judicial scrutiny. The
courts assessed whether these agencies acted within their legal mandates, adhered to due process,
and ensured public accountability.

Sonko’s case underscored the necessity of judicial oversight in situations involving allegations of
corruption by public officials. Through judicial review, the judiciary not only ensured that
Sonko’s removal from office followed proper legal procedures but also reinforced accountability
in the prosecution of his criminal charges. This process demonstrated the judiciary’s role in
upholding the rule of law, ensuring public funds are managed responsibly, and maintaining
public trust in legal institutions.

Good governance
Good governance embodies principles such as transparency, accountability, integrity, and
fairness in managing public affairs and resources. It is a cornerstone of administrative law,
ensuring that public officials serve the interests of the public rather than their personal gains.
Effective governance fosters trust between the government and citizens, enhances efficiency in
service delivery, and builds a system where decisions are made openly and responsibly.

The case of Mike Sonko highlights significant governance failures that undermined these
principles. During his tenure as Governor of Nairobi, allegations of corruption, misappropriation
of public funds, and abuse of office revealed critical lapses in accountability and transparency.
Investigations uncovered irregularities in the procurement process, such as awarding contracts
without proper tendering and engaging in undisclosed deals with contractors and business
associates. These practices violated ethical standards and betrayed the trust of the public, making
it difficult for citizens to understand or question how public funds were being utilized.

Transparency is a critical component of good governance, as it ensures openness in decision-

making processes, particularly regarding public expenditure. In Sonko’s administration, critics
noted a lack of clear and accessible information about how funds were allocated or spent,
especially on public projects and contracts. This opacity eroded public trust and created barriers
to holding leaders accountable. Good governance requires public officials to disclose relevant
information, subjecting their decisions and actions to scrutiny to build confidence and
legitimacy.

Furthermore, Sonko faced accusations of using his position to enrich himself and his family,
diverting public resources for personal benefit. Such actions directly contravene the ethical
obligations of public office and highlight a failure to prioritize the public good over private
interests. Abuse of office undermines the foundations of good governance, as it not only misuses
resources but also perpetuates inequality and distrust in government institutions.

Sonko’s case underscores the importance of reinforcing accountability mechanisms, such as

audits, public participation, and judicial oversight, to ensure that governance processes adhere to
constitutional principles. For governance to be effective, leaders must embrace transparency,
allow public scrutiny, and be held accountable for their actions. By aligning governance with
these values, public trust can be restored, and the efficient, equitable management of resources
can be achieved.
Sources of Administrative law
Judicial precedents
Judicial precedents play a pivotal role in shaping administrative law, particularly in addressing
corruption and the misuse of public funds. They establish legal principles that guide future cases
and define the scope of accountability for public officers. In Kenya, several landmark rulings
have underscored the importance of transparency, integrity, and accountability in public service
while reinforcing the legal frameworks designed to combat corruption. Below is a summary of
key cases and their implications:

Key Judicial Precedents

The Republic v. John Harun Mwau & 2 Others (2012)

 Facts: Involved abuse of office and diversion of public funds for personal use.
 Ruling: Public officials must act in the public interest, not for personal enrichment.
 Significance: Highlighted the principle of integrity as central to public service.

Jared Nyataya & Another v. Ethics and Anti-Corruption Commission (EACC) (2017)

 Facts: Challenged the forfeiture of assets acquired through corruption.

 Ruling: The court upheld the Proceeds of Crime and Anti-Money Laundering Act,
mandating that illegally obtained assets be forfeited to the government.
 Significance: Reinforced the principle that public officers cannot benefit from corrupt
actions.

The Republic v. Ndungu Gichuru (2011)

 Facts: Related to embezzlement of public funds by a government official.

 Ruling: Misappropriation of public funds warrants stern legal action and proper
accounting practices.
 Significance: Advocated strict anti-corruption measures.

Ethics and Anti-Corruption Commission (EACC) v. Philip Ndwiga (2014)

  Facts: Misappropriation of public funds for personal benefit by a retired officer.
 Ruling: Public officers must not misuse their position for personal gain.
 Significance: Reinforced accountability for misappropriation of public funds.

Key Legal Frameworks Supporting Judicial Precedents

1. The Constitution of Kenya, 2010

Chapter Six on Leadership and Integrity sets guidelines for ethical conduct and accountability in
public service.

2. Anti-Corruption and Economic Crimes Act, 2003

Criminalizes corruption and provides penalties for the misuse of public resources.

3. Public Finance Management Act, 2012

Regulates the management and auditing of public finances to ensure efficient and intended use of
resources.

4. Proceeds of Crime and Anti-Money Laundering Act, 2009 (POCAMLA)

Provides for the tracing, seizure, and forfeiture of assets acquired through criminal or corrupt
means.

Implications for Administrative Law

These precedents underscore the judiciary's role in enforcing administrative law and ensuring
that public officers uphold their constitutional responsibilities.
They provide a framework for combating corruption, promoting good governance, and ensuring
public resources are utilized for their intended purposes.

Judicial decisions in such cases set a strong deterrent against misuse of public funds and
reinforce the principles of transparency, accountability, and the rule of law

Common law

The Kenyan legal system, rooted in the British Common Law tradition, significantly benefits
from common law principles in administrative law, particularly in matters concerning corruption
and misuse of public funds. These principles complement statutory frameworks to ensure
accountability, transparency, and adherence to the rule of law.

Role of Common Law in Administrative Law

The doctrine of precedent, encapsulated in the Latin maxim stare decisis et non quieta movere,
mandates courts to adhere to established decisions. While Kenya's legal framework is governed
by statutory laws and the Constitution of Kenya, 2010, common law principles are applied
where:

1. Statutes are silent or gaps exist.

2. Interpretation of statutory provisions is required.
3. Fairness, accountability, and transparency must be upheld.
4. Judicial review is necessary to check misuse of authority or resources.

Judicial Review in Administrative Law

Judicial review ensures that public officials act within their legal authority (ultra vires), follow
due process, and avoid irrational or procedurally flawed decisions. Courts invoke judicial review
to:

 Examine whether public funds have been misallocated or misused.

 Investigate abuses of power or discretion by public officers.
 Ensure procedural fairness and natural justice.
Key applications of judicial review include:

Invalidating decisions that lack transparency or public participation (Republic v. Kenya Anti-
Corruption Commission ex parte Kivuitu [2008]).

Scrutinizing decisions for breaches of fiduciary duty (Kenya Anti-Corruption Commission v.

Karume [2012]).

Reviewing misapplication of funds against public trust (Public Procurement Oversight Authority
v. Republic [2014]).

Key Cases Highlighting Common Law Principles

1. Republic v. Judicial Service Commission [2014]

 Issue: Challenged the legality of decisions by public officials.
 Significance: Reinforced the role of judicial review in scrutinizing public decisions for
fairness, legality, and procedural correctness.
2. Kenya Anti-Corruption Commission v. Karume [2012]
 Issue: Breach of fiduciary duty by a public officer in the handling of public funds.
 Significance: Highlighted accountability in managing state resources.
3. Public Procurement Oversight Authority v. Republic [2014]
 Issue: Diversion of public funds to unintended purposes, breaching public trust.
 Significance: Stressed transparency and accountability in government spending.
4. Republic v. Kenya Anti-Corruption Commission ex parte Kivuitu [2008]
 Issue: Decisions made without public participation and transparency.
 Significance: Emphasized natural justice and public involvement in governance
Conclusion
In conclusion, corruption and embezzlement in public administration are direct contradictions to
the core principles of administrative law, which emphasize accountability, transparency, fairness,
and the effective management of public resources. These malpractices erode public trust and
hinder the government’s ability to serve its citizens, leading to misallocation of resources and the
undermining of democratic values. To effectively combat corruption and embezzlement, a
multifaceted approach is necessary, one that involves the implementation of strong legal
frameworks, the establishment of effective institutions for oversight and accountability, and the
active participation of the judiciary and citizens in holding public officials to account. It is
critical that legal mechanisms such as judicial review, public audits, and anti-corruption
commissions are not only in place but are also empowered to take swift and decisive action
against any misuse of public funds. Furthermore, the adherence to ethical standards and moral
behavior must be enforced within the public sector, ensuring that public officials act in the best
interest of the citizens they serve. In this regard, the judiciary plays a crucial role in overseeing
the actions of public officials and ensuring that they are held accountable through the application
of the rule of law. Public institutions must be transparent in their decision-making processes, and
mechanisms of accountability must be clear and accessible to the public. By strengthening these
legal and administrative frameworks, public funds can be better safeguarded from corruption,
and public confidence in governance can be restored. Ultimately, the success of these efforts will
be determined by a collective commitment to uphold the principles of justice, integrity, and
public service, ensuring that public resources are used to benefit the people rather than to enrich
those in power.

References and bibliography

"Kenya Law: Ethics and Anti-Corruption Commission".

https://kenyalaw.org
https://supremecourt.judiciary.go.ke ›

http://libraryir.parliament.go.ke

https://www.standardmedia.co.ke ›

https://www.citizen.digital › news ›