ADMINISTRATIVE LAW

Meaning
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 Government carries out its functions.

Administration is the act or process of administering, which simply means it is the act of meting out,
dispensing, managing, supervising and executing government functions

It is the law relating to control of governmental power. It can also be said to be the body of general
principles, which govern the exercise of powers and duties by public authorities.

The primary purpose of administrative law, therefore, is to keep the powers of government within
their legal bounds, so as to protect the citizen against their abuse.

Administrative law is also concerned with the administration and dispensation of delivery of public
services. However it does not include policy making.

Administrative law is concerned with how the government carries out its tasks. The government’s
tasks include delivery of public services such as health, security, facilitating trade, arbitration of
disputes, and collection of revenue.

Administrative law is the law relating to the Executive branch of government. The law deals with a
variety of things e.g.
i. The establishment of public authorities e.g. the city council, establishment of public bodies
and organs.
ii. The nature of the tasks given to various public organs and public agencies.
iii. The legal relationship between the public bodies themselves and also between the public
agencies and the public and between public agencies and the citizens.

Administrative Law is concerned with the means by which the powers and duties of the various
public agencies, public bodies and public institutes can be controlled.

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 services for
example educational services and in their administration of various social services as in the
case of social security services.

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 ministers.

4. Judicial functions: These primarily involve the functions of determining claims or disputes
between individuals and other bodies. A good example of an 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.

Functions/purposes of administrative law

1. It ensures proper dispensation of services.
2. It seeks to protect citizens from abuse of power.
3. To keep the powers of government i.e., the powers of various public bodies within their legal
bounds, so as to protect citizens from their abuse. Abuse of power can arise either from
malice, bad faith or even from the complexities of the law.
4. There are duties placed in public bodies (public institutions) such that another function of
the law is to see that the duties are performed and that the public agencies can be compelled
to perform their duties where there is laxity or where they refuse or otherwise fail to do so.

Doctrine of Separation of Powers

Doctrine of separation of powers is a legal framework developed by a French jurist named

Montesquieu whose concern to contain the over-concentration of governmental powers in the hands of
one person or a body.

This doctrine is a characteristic of Constitutionalism which is the theory of limited government.

According to Montesquieu the only way to create a system of checks and balances was to ensure
that governmental powers were devolved.

He developed the so-called classical doctrine of separation of powers. He suggested that:

1. There should be different organs of government i.e. executive, legislature and judiciary.
2. These organs must exercise different functions. The legislature makes the law, the judiciary
interprets it, and the executive administers it.
3. No person should be a member of more than one organ.

According to Montesquieu, such an arrangement would ensure that no single organ exercises
unchecked power, however, this framework cannot operate in any country in its pure state, as
government does not operate in water-tight compartments.

Montesquieu is credited for having suggested that this ought to be an independent judiciary.
Montesquieu’s framework is generally effected in many Constitutions of the world.

Independence of the judiciary

The principle of independence of the judiciary is an integral part of the doctrine of separation of
powers. It means that:

i. There should be a distinct organ of government whose function is to administer justice

ii. The organ must operate impartially and in an unbiased manner. It must be disinterested as
possible in the proceedings.
iii. The organ must administer justice on the basis of facts and law without fear or favour and
without eternal influence.

Independence of the judiciary may be actualized in various ways:

i. By providing security of tenure for judicial officers.
 ii. Economic independence i.e. adequate financial provisions for judicial officers.
iii. Immunity from court action for actions taking place in the course of judicial proceedings.
iv. Appointment of persons of unquestionable professional and moral integrity

Independence of the judiciary is critical in that:

i. It promotes the liberty of human beings by checking on the excesses of the state.
ii. It promotes the rule of law.

Natural Justice

Definitions:

Natural: Natural is being in accordance with or determined by nature i.e. based on the inherent sense
of right and wrong.

Just: Means morally upright, correct, proper, good, merited deserved etc.

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.

The 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 i.e. they are not expressed in a statute; they are supposed to
apply in every case unless a statute expressly states that they will not apply.

Principles of natural justice are applicable in the absence of statutory provisions authorizing their
applicability or their observance. Unless the application of principles of 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.

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. The principles also 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.

In Mirugi Kariuki v. The Attorney General and 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.
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 i.e. 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:
1. Rule against bias
2. The right to be heard
3. Prior notice
4. Opportunity to be heard
5. Disclosure of information
6. Adjournment
7. Cross examination
8. Giving reasons
9. Legal representation

Rule against Bias

In summary there can be bias when:
1. There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest;
2. Where short of a direct interest there is a reasonable appearance or likelihood of bias;
3. Where there is actual bias.

In R v. Hendon Rural District Council ex-parte Chorley, 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 councilors 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
grounds 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 v. Lennon applies. 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. In this case, the court
said;
… In considering whether there was a real likelihood of bias, the court does not
look 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.

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 vs. The Attorney
General, where 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.
Prior Notice

This rule requires that adequate prior notice be given to the person of any charge or allegation. It
simply means that if an administrative body makes a charge it has to give the person against whom
allegations have been made adequate notice before a decision is made. Prior notice must be served at
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 a reasonable
time within which the appellant must submit his written answer.

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.

Disclosure of Information
The 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.

In Ridge v. Baldwin the House of Lords 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.

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 v. Fisher & Sons. A heating engineer
was denied an adjournment in a case where 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.

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 request 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 cannot complain.

Giving Reasons
Progressively, courts are insisting on giving reasons for a decision as a component for natural justice.
(If an administrative body denies you a licence, they must give you the reasons why, failure to which
you can petition the High Court for a review). In the case of Padfield v. The Cabinet Secretary for
Agriculture Fisheries and Food (1968), Lord Reid stated;
I cannot agree that a decision cannot be questioned if no reasons are given. It
means that if no reasons are given a decision can be questioned.
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.

Judicial Control of The Executive

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 a party
aggrieved by an administrative body can find redress.

Judicial Review refers to the examination of the actions or inactions of public bodies by the High
Court.

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

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.

The primary legal basis of Judicial Review is the Law Reform Act. From the wording of Section 8 of
the Law Reform Act, one can only apply for Judicial Review in the High Court and not the
Magistrates Courts.

Judicial review 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.

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.

A person has the 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.

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. If found wanting on any one of the grounds we
studied including ultra vires, be quashed.

The order can issue against:

1. Administrative tribunals.
2. Inferior courts such as the industrial courts.
3. Local authorities.
4. Ministers of Government.
5. Miscellaneous public bodies exercising public functions.

In Majid Cockar v. Director of Pensions, a 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 the
amount of money as pension.

Prohibition
The order of Prohibition is one issued by the High Court which prohibits a body (administrative
bodies) from continuing with proceedings. It will also prohibit a body from continuing to carry out
decisions wrongly or wrongfully made.

This order may be issued against:

1. A judicial body acting in an administrative capacity i.e. Industrial Court.
2. An administrative body performing administrative duties or against the government
officials.
3. It can be issued to stop a public body from continuing proceedings that are ultra vires.
4. It can also be issued to stop an administrative body from continuing to do something in
excess of jurisdiction.
 5. It can also be used to stop an administrative body from abusing their powers.

In R v. Electricity Commissioners Ex parte Electricity Joint Committee (1924) 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 stated that:

“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 seeks 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 a 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 issued where there is a duty imposed by statute or Common Law. 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 administrative 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.

Mandamus is used to enforce performance of specific duties and not the exercise of mere powers.

In Daniel Nyongesa & Others v. Egerton University College (1989), 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.

Grounds of judicial review

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 administrative bodies in one or more of the following
circumstances:

1. When a body acts ultra vires;

2. Unreasonableness;
3. When there is jurisdictional error;
4. When there is an error of law;
5. When there is an error of fact;
6. When there is an abuse of power;
7. When irrelevant considerations governed the making of a decision;
8. When there is bias;
9. When there is unfair hearing;
10. When there is procedural flaw;
11. When there is irrationality
12. When a public official or body acts in bad faith;
13. When there is breach of the principles of natural justice.

There are some 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.

One does not have to have all the 13 circumstances to apply for judicial review. Any one of the
grounds will suffice and the list is not exhaustive.

1. Doctrine of Ultra Vires

The doctrine of ultra vires is a legal doctrine. In the English Legal System judicial control of
administrative agencies is based on the doctrine of ultra vires. 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 courts will intervene on matters of
public administration if the administrative 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 to them
by law. They must also act within the requirements 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 law. 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 in accordance with the statute granting the power so that people do not
suffer. Limits are placed by statutes to ensure that powers conferred to administrative 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.

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 an administrative body acts ultra vires if that body does an act which it has no authority
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 powers that are authorised, they have failed to follow
prescribed procedure.

Types of ultra vires

i. Substantive Ultra Vires.
ii. Procedural Ultra Vires.

i. Substantive ultra vires

Substantive ultra vires is acting in excess of powers with regard to matters of substance. This would
include for example an administrative body acting beyond what is authorized to do. Substantive ultra
vires includes the following cases:

1. Exercising power in excess of statutory limits;

2. Acting in excess of jurisdiction;
3. 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

ii. Procedural ultra vires

These are cases where administrative bodies fail to follow prescribed procedures. They also include
cases where an error occurs in following the 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 also have the chance to defend
themselves.

Courts are mandated to use or to apply ultra vires doctrine 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. Consider the case of White and Collins v.
Cabinet Secretary of Health.

This case concerns the exercise of the 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 Cabinet Secretary 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 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
 2. Unreasonableness

One of the things the court considers in determining unreasonableness is whether a public body has
taken into account any matter that it ought not to take into account or has disregarded any matter that
it ought to take into account.

In R v. Ealing London Borough Council Ex parte Times Newspapers Ltd, 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.

3. Jurisdictional Error
Jurisdiction means the scope or area in which a body is allowed to act. It includes territorial limits.

Where there is an error it means:

1. That an administrative agency has acted without jurisdiction i.e. they have acted over
matters which they have no authority to act on.
2. They have acted within jurisdiction but have exceeded their limits. This can happen:
 When a body erroneously exercises power or authority over a matter that is outside of
its territorial limits.
 Where a body legislates over a matter that falls outside of the matters it is authorised to
legislate over.
 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. (The Administrative body has the authority to do something but it declines to do
it.)
 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, the aggrieved person can apply to
the High Court for Judicial Review on the grounds that a public body has committed jurisdictional
error.

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 Cabinet Secretary of Local Government for example has no idea that he cannot sack an elected
mayor, this is an act of ignorance.

Negligence would be where an administrative body fails to do what the law provides for and in that
case they have failed to look up to the law to see what it provides. This can result from a number of
things:

1. Failure to ascertain what the law says about a particular matter;

2. 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 administrative 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 Cabinet Secretary for Justice and Constitutional Affairs and they give
incorrect directions on the same, this is misdirection.

5. Error of Law on The Face of the Record

In all the above cases, it is usually said that there is an error of law on the face of the record.
An error of the law on the face of the record is an error which may be ascertained by an examination
of the record of proceedings without looking at 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 and all the acts done in error of law are invalidated
upon judicial review because they are illegal.

In R v. Northumberland Compensation Appeals Tribunal ex parte Shaw 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 said that in computing compensation one 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 an 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 which involves the production of proceedings of the tribunal to
the High Court so they can be quashed.

6. Error of Fact

It is important to note that facts are 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.

7. Abuse of Power

Abuse of power is where the power and authority given to public bodies have:
1. been put to a wrong or improper use;
2. been used so as to injure or to damage;
3. been misused;
4. been used corruptly.

If the court finds that an administrative body has abused its power, any act done or decision made
will be invalidated.
 8. Improper Exercise of Discretion
An administrative body has the authority to exercise discretion whenever the limits of its statutory
authority leave it 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 does 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:

1. Discretion must be exercised properly;
2. Discretion must be exercised reasonably;
3. Discretion must be exercised by the proper authority only and not by a delegate;
4. Discretion must be exercised without restraint;

Certain circumstances will give rise to improper exercise of discretion which includes:
1. Exercising discretion for improper motive;
2. Where power to exercise discretion is delegated to a person who is not charged with the
responsibility in question;
3. Where discretion is exercised so as to serve self-interest.

Consider Fernandes V. Kericho Liquor Licensing Court, the case concerns the authority given to
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.

9. Irrelevancy
Irrelevancy occurs in two situations:
1. 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 gender a licence is denied.
2. Where an administrative body disregards something which it ought to consider in making a
decision.

10. 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.

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 or remote it is to
the matter decided.

iii. Actual Bias:

There are cases where in the absence of the real likelihood of bias, pecuniary or other interests and
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-
m a k i n g 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 the decision.

11. Unfair Hearing

Administrative bodies are bound to give a fair and proper hearing to those who come before them.
Often the law 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.

In Neil v. North Antrim Magistrate’s Court it was suggested 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.

It is important to note that if a party petitions the court for judicial review on the grounds 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.

12. Irrationality
Irrationality is derived from the word irrational. This means that if a decision-making body or an
administrative body act irrationally, whatever that body does or whatever decision it makes can be
invalidated upon judicial review. Irrationality 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.

13. Bad Faith (Mala Fide)

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.
Video to watch:
Title: “What is Administrative Law?
Link of the video;
https://www.youtube.com/watch?v=sXpp3igzNWI