WHAT IS ADMINISTRATIVE LAW?

What is Administrative Law?

Administrative law is regarded as the area of law concerned with the control of governmental
powers. It is that section of public law which governs the organisation, powers and actions of
the state administration. In real terms, these refer to powers derived from, or duties imposed
by, statute law (primary and subordinate); and some aspects of the constitution that regulate
the interaction between the citizen and the state bureaucracy. One key function of
administrative law is thus to control decision-making on the basis of these powers, whether at
the level of the national government, or at the level of devolved government.
Administrative law embodies general principles which can be applied to the exercise of the
powers and duties of authorities in order to ensure that the myriad of rules and discretionary
powers available to the executive and other public decision-makers conform to basic
standards of legality and fairness. The ostensible purpose of these principles is to ensure that,
as well as observance of the rule of law, there is accountability, transparency, and
effectiveness in the exercise of power in the public domain.
Certain functions and characteristics of administrative law flow from the above, broad,
definition:
(a) It has a control function, acting in a negative sense as a brake or check in respect of the
unlawful exercise or abuse of governmental/administrative power.
(b) It can have a command function by making public bodies perform their public duties,
including the exercise of discretion under a statute.
(c) It embodies positive principles to facilitate good administrative practice, for example in
ensuring that the rules of natural justice or fairness are adhered to.
(d) It operates to provide for accountability and transparency, including participation by
interested individuals and parties in the process of government.
(e) It may provide a remedy for grievances occasioned at the hands of public authorities.

Constitutional Principles and Values with implications for Administrative Law

The constitution of Kenya 2010 is hinged on certain basic principles. These are evident in
article 10 of the Constitution. The principles are justiciable in the sense that any law or
conduct inconsistent with them may be declared invalid. But these basic principles do more
work than this. They tie the provisions of the Constitution together and shape them into a
framework that defines the post-2010 constitutional order. The basic principles therefore
influence the interpretation of other provisions of the Constitution and the law which has to
be interpreted consistently with the values and principles of the constitution. In
Communications Commission of Kenya & others v Royal Media Services and Others
Sup. Ct. Petition Nos. 14, 14A, 14B and 14C of 2014 (CCK) the Supreme Court observed
at paragraph 368 that:

“The Constitution itself has reconstituted or reconfigured the Kenyan state from its
former vertical, imperial, authoritative, non-accountable content under the former
Constitution to a state that is accountable, horizontal, decentralized, democratized,
 and responsive to the principles and values enshrined in Article 10 and the
transformative vision of the Constitution. The new Kenyan state is commanded by the
Constitution to promote and protect values and principles under Article 10”

The Principle of Rule of Law

As originally conceived by the English constitutional lawyer A.V. Dicey more than a century
ago, (in the book An Introduction to the Study of the Law of the Constitution), the purpose
of the rule of law was to protect basic individual rights by requiring the government to act in
accordance with pre-announced, clear and general rules that are enforced by impartial courts
in accordance with fair procedures. Put at its simplest, the rule of law requires state
institutions to act in accordance with the law. This means two things. The first is that the
various organs of state must obey the law. The second is that the state cannot exercise power
over anyone unless the law permits it to do so. This means that there must be a law
authorizing everything the state does. If it acts without legal authority it is acting lawlessly.
The essence of the principle of the rule of law is to be found in the “principle of legality”,
which requires decisions to be made by the application of known and general principles of
law.
The Constitutional Court of South Africa has on the basis of the “principle of legality”
developed a general requirement that all law and state conduct must be rationally related to a
legitimate government purpose. In Pharmaceutical Manufacturers Association of SA: In
re: ex parte President of the Republic of South Africa 2000 (2) SA 647 (CC) it was held
that an exercise of public power had to be carried out lawfully and consistently with the
provisions of the Constitution. The Court stated thus:
“it is a requirement of the rule of law that the exercise of public power by the executive
and other functionaries should not be arbitrary. Decisions must be rationally related to
the purpose for which the power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement. It follows that in order to pass constitutional scrutiny
the exercise of public power by the executive and other functionaries must, at least,
comply with this requirement. If it does not, it falls short of the standards demanded by
our constitution for such action.”

In the case of Law Society of South Africa & Others vs. Minister for Transport &
Another[CCT 38/10] [2010] ZACC 25 the Constitution Court of South Africa at paragraph
32 stated:-
“…the rule of law... is a founding value of our constitution.-the rule of law requires
that all public power must be sourced in law – this means that state actors exercise
public power within the formal bounds of the law.”
In Fedsure Life Assurance Ltd & Others vs. Greater Johannesburg Transitional
Metropolitan Council & Others [CCT7/98] [1998] ZACC 17 the Constitutional Court of
South Africa at paragraph 56 stated:-
“it is a fundamental principle of the rule of law, recognized widely that the exercise of
public power is only legitimate where lawful. The rule of law – to the extent at least
 that it expresses this principle of legality - is generally understood to be a fundamental
principle of constitutional law. This has been recognized in other jurisdictions. In The
matter of a Reference by the Government in Council Concerning Certain Questions
Relating to the Secession of Quebec from Canada the Supreme Court of Canada held
that:-
“Simply put, the constitutionalism principle requires that all government action comply
with the Constitution. The rule of law principle requires that all government action
must comply with the law, including the Constitution. This Court has noted on several
occasions that with the adoption of the Charter, the Canadian system of government
was transformed to a significant extent from a system of Parliamentary supremacy to
one of constitutional supremacy. The Constitution binds all governments, both federal
and provincial, including the executive branch (Operation Dismantle Inc. V. The
Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions:
indeed, their sole claim to exercise lawful authority rests in the powers allocated to
them under the Constitution, and can come from no other source.”

The rule of law therefore means more than the value-neutral principle of legality. It has
implication for the content of law and government conduct. In this regard it has both
procedural and substantive components. The procedural component forbids arbitrary
decision-making. The substantive component dictates that the government must respect the
individual’s basic rights.

The Supreme Court in Peninah Nadako Kiliswa v Independent Electoral & Boundaries
Commission (IEBC) & 2 others, Petition Number 28 of 2014 observed thus in respect to
administrative law judicial review:
“[33] It follows that for an appeal to lie to this Court, in a matter originated
under judicial review, the issues have to fall under the canopy of Article 163(4)(a). As
judicial review is concerned with process, but for a case where the process is contested as
being unlawful, irrational or procedurally unfair – elements falling within the purview
of the rule of law (a constitutional principle) – the matter cannot lie to the Supreme
Court.”

The principles of Accountability and Transparency

The Constitution requires the government to respond to the will of the people. It requires the
engendering of the ideas of openness, responsiveness and accountability. These ideas mean
that government institutions must be accessible and the government officials must respond to
the people they govern. Also the duty of accountability requires that the government must
explain its laws and actions if required to do so. One way of looking at accountable
governance is that it is a requirement by explanation rather than government by force. As
Etienne Mureinik has written in the seminal paper “A Bridge to Where? Introducing the
interim Bill of Rights”, the Constitution promotes:
“a culture of justification, a culture in which every exercise of power is expected to be
justified; in which the leadership given by government rests on the cogency of the case
offered in defence of its decisions, not the fear inspired by the force at its command. The new
order must be a community built on persuasion, not coercion’.

In the case of Samura Engineering Ltd & Others v Kenya Revenue Authority Nairobi
petition No. 54 of 2011 Majanja J. noted that:,

“[77] By placing the values of rule of law, good governance, transparency and
accountability at the centre of the Constitution, we must now embrace the culture of
justification which requires that every official act must find its locus in the law and
underpinning in the Constitution.”

Hon. Justice Kalpana Rawal and Others v Judicial Service Commission and Others,
Applications No. 11 and 12 of 2016 Mutunga CJ noted:

“[16] By recalling the words of a South African scholar Etiene Mureinik, writing in the post-
apartheid moment, (in a journal article ‘A Bridge to Where? Introducing the Interim Bill of
Rights,’ 10 SAJHR 31, 32 (1994)), I state that ours is a new era of constitutional
“justification” in which the exercise of all public power is constrained by the Constitution, its
values and principles.”

Trusted Society of Human Rights Alliance and others vs. Judicial Service Commission
and Another, Petition No. 314 of 2016 Odunga J noted:
“I prescribe to the notion advanced by Etienne Mureinik in A Bridge to Where? Introducing
the Interim Bill of Rights (1994) 10 SAJHR 32, that the Constitution instils a culture of
justification, “in which every exercise of power is expected to be justified”.

The right to access governmental information in article 35 of the Constitution and the right to
fair administrative action in article 47, particularly the sub-articles on the right to reasonable
administrative action and the right to written reasons of administrative action, all flow from
the principles of accountability and transparency. In Geothermal Development Company
Limited v Attorney General & 3 others Petition 352 of 2012 [2013] eKLR Majanja J.
observed thus:
“Article 47 enshrines the right of every person to fair administrative action. Article
232 enunciates various values and principles of public service including “(c) responsive,
prompt, effective, impartial and equitable provision of services” and “(f) transparency and
provision to the public of timely, accurate information.”

See Further Walter Khobe ‘The Architectonic of Administrative Law in Kenya Post-2010’
Journal of Law and Ethics for enunciation of the concept of open democracy (governance)
and link with administrative law

Principle of Good Governance

The constitutional principle of good governance usually connotes as a minimum democratic
governance and respect for human rights. Good governance thus means government that is
democratically organised within a democratic political culture and with efficient
administrative organisations. The 2010 Constitution by entrenching the value of good
governance requires the accountability of leaders to the people, respect for human rights,
strengthening of the rule of law and bringing decision making closer to the people.

Administratively, good governance requires accountable and transparent public

administration, and effective public management, including a capacity to design good
policies as well as to implement them. The East African Court of Justice in Baranzira
Raphael v Attorney-General, Republic of Burundi reference no 15 of 2014 relying on the
United Nations Development Program (UNDP) definition of good governance, spoke thus:
" .. good governance is the existence of effective mechanisms processes and institutions
through which citizens articulate their interests, exercise their legal rights, meet their
obligations while mediating their differences ."

In Garissa County Government v National Land Commission & 3 others, Petition No.
401 of 2014 [2016] eKLR Justice Lenaola held thus in this respect:

“It is the Petitioner’s contention that the administrative action of the 1st Respondent that is
the subject of the instant Petition, was contrary to the principles of good governance,
integrity and transparency, all of which are values espoused in Article 10 and Chapter 6 of
the Constitution. While good governance denotes upright and wholesome means for making
decisions and relating to members of the public, integrity embodies always being honest and
driven by strong moral conviction, and transparency indicates operating in a manner that
allows for the public to see how institutions arrive at decisions or perform actions....... I am
in agreement with the above holdings on good governance, integrity and transparency.
Guided thereby, I resolve that the impugned decision having been undertaken and executed
unilaterally, without requisite consultation or co-operation and not being clear on how
information considered was obtained, the administrative action in question was neither
infused with good governance nor transparency.”

Sources of administrative law and the development of Administrative Law in Kenya

Prior to the adoption of the 2010 Constitution, the predominant influence on Kenyan
administrative law was English Law. This is not surprising because of the English pedigree of
Kenyan constitutional institutions until 2010. With the British colonisation of Kenya, the
country embraced the Westminster system and what went with it. For administrative law, it
meant, most importantly, the acceptance of the common law as the rationale for the
jurisdiction of the ordinary courts to review administrative action. Because of the influence of
English common law on Kenyan administrative law, reliance has always been placed on
English (and, to a lesser extent, Commonwealth) case law.

The Constitution
Article 47 entrenches a fundamental right to fair administrative action. The entrenchment of
fundamental principles of administrative law in the Constitution and the Bill of Rights must
be seen against the background of a long history of abuse of governmental power in Kenya.
The range and scope of the discretionary power of government officials was expanded by
legislation. The courts’ common law authority to review the exercise of that discretion has
not been effectively deployed to constrain administrative powers. The Constitution seeks to
cure this by protecting the institution of judicial review of administrative power from
legislative interference, while providing individuals with justiciable rights to claim relief
from the effects of unlawful administrative action. The Constitution requires the
administration to act in accordance with fundamental principles of justice, fairness and
reasonableness. It prohibits the legislatures from allowing any departure from these principles
and requires parliament to enact legislation to govern the performance of administrative
action and judicial review of it.

Prior to the Constitution 2010, the superior courts possessed a common-law power to review
administrative action. The body of legal principles and rules developed by courts in course of
their application of this power is referred to as administrative law. When administrative
officials or bodies went beyond their statutory powers, failed to perform their statutory duties
or otherwise failed to meet the standards imposed on them by law, aggrieved persons could
challenge their actions and decisions in the superior courts by means of an application for
judicial review.

The Constitution 2010 has brought in a new era of administrative law. The review power of
the courts is no longer grounded in the common law but instead the Constitution has itself
confers fundamental rights to administrative justice. Majanja J. has captured this shift in the
case of Dry Associates Ltd v Capital Markets Authority and Another, Petition No. 328 of
2011, as follows: “Article 47 is intended to subject administrative processes to constitutional
discipline hence relief for administrative grievances is no longer left to the realm of common
law ... but is to be measured against the standards established by the Constitution.”

In the case of Republic v Kenya Revenue Authority ex parte Lab International Kenya
Limited, Mombasa High Court, Misc. Civil Application No. 82 of 2010[2011]eKLR
Ojwang J (as he then was) similarly observed that:

“The Common law in its evolution has defined the rules of conduct for a public authority
taking a public decision, entrusting the overall control-jurisdiction in the hands of the Courts
of law; but for Kenya a general competence of the Courts is now no longer confined to the
terms of Statute law and subsidiary legislation, but has a fresh underwriting in the
Constitution of Kenya, 2010, Article 47 which imposes a duty of fair administrative action
and Article 10(2)(c) demands, “good governance, integrity, transparency and
accountability.”

Majanja J held thus in the case of Moses Kiarie Kairuri & 4 others v Attorney General &
3 others, Petition No. 280 of 2013 in H.C at Nairobi [2014] eKLR:
 “The Constitutional guarantee of the right to fair administrative action is aimed at
instilling discipline to administrative action so that the values and principles of the
Constitution are infused in matters of public administration.”
In Judicial Service Comission v Mbalu Mutava & another, Civil Appeal 52 of 2014
[2015] eKLR Githinji, JA observed thus:
“Article 47(1) marks an important and transformative development of administrative justice
for, it not only lays a constitutional foundation for control of the powers of state organs and
other administrative bodies, but also entrenches the right to fair administrative action in the
Bill of Rights. The right to fair administrative action is a reflection of some of the national
values in article 10 such as the rule of law, human dignity, social justice, good governance,
transparency and accountability. The administrative actions of public officers, state organs
and other administrative bodies are now subjected by article 47(1) to the principle of
constitutionality rather than to the doctrine of ultra vires from which administrative law
under the common law was developed.”
In Gregory Magara Magare v University of Nairobi & another, Petition 325 of 2016
Justice Mwita recognised the elevation of fair administrative action from a common law
entrenchment to a constitutional right. He states thus:
 “The right to fair administrative action forms part of the Bill of Rights in the
constitution, which is a set of values and principles aimed at protecting everyone.
These rights must be respected and protected and may not be violated by any
individual, institution, or government. The right to fair administrative action is now
anchored in the Constitution, the constitution having clearly declared it a right and
everyone has to enjoy it just like any of the many fundamental rights in the Bill of
Rights. This basic right aims to ensure that government or institutional
administrators make decisions in a fair way. Any contemplated administrative action
must therefore be subject to the constitutional standard set in Article 47(1). The right
to fair hearing which had its foundation in common law, has attained constitutional
basis. It is now a constitutional requirement that anybody who takes administrative
action, must do so expeditiously, act reasonably and be procedurally fair. ...
As a constitutional right, a breach of the right to fair administrative action, would
amount to an infringement of fundamental rights and would attract sanctions just like
breach of any of the other fundamental rights. This is so, because the right to fair
administrative action is granted by the constitution. Article 47(2) has gone further to
demand that where a right to fundamental freedom is likely to be adversely affected
by administrative action, a person has a right to be given reasons for the action. The
constitution recognizes that this right may be violated and has prescribed measures
that must be met to avoid infringement. Speed, procedural fairness as well
reasonableness as the hallmarks of fair administrative action must be the guiding
principle whenever such action is to be taken, as a way of ensuring that the person
knows from the onset what action to expect and reasons for it.”

Although the common law principles would help in interpreting the right to fair
administrative action it must be recognised that where there are limitations and constraints
within common law the same cannot be used to constrain the articulation of this right. The
Constitutional Court of South Africa in its decision in President of the Republic of South
Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000
(1) SA 1, at paragraphs 135 -136 held as follows with regard to similar provisions on just
administrative action in section 33 of the South African Constitution:

“Although the right to just administrative action was entrenched in our Constitution in
recognition of the importance of the common law governing administrative review, it is not
correct to see section 33 as a mere codification of common law principles. The right to just
administrative action is now entrenched as a constitutional control over the exercise of
power. Principles previously established by the common law will be important though not
necessarily decisive, in determining not only the scope of section 33, but also its content. The
principal function of section 33 is to regulate conduct of the public administration, and, in
particular, to ensure that where action taken by the administration affects or threatens
individuals, the procedures followed comply with the constitutional standards of
administrative justice. These standards will, of course, be informed by the common law
principles developed over decades…”
Legislation: The Fair Administrative Actions Act, 2015
Parliament is required under article 47 to enact a statute giving effect to the right to fair
administrative action. Parliament has complied with this duty by enacting the Fair
Administrative Actions Act, 2015. The statute makes the right to fair administrative action
effective by providing an elaborate and detailed expression of the right to fair administrative
action and providing the remedies to vindicate them. The statute is a general and
comprehensive administrative law code applicable to all instances of administrative action as
defined by the statute.

The Common Law

The common law continues to apply in areas where the constitution and statute does not
apply. This is the import of section 12 of the Fair Administrative Actions Act, 2015 that
provides thus: “This Act is in addition to and not in derogation from the general principles of
common law and the rules of natural justice.” The extent of this area is extremely narrow. To
a large extent now administrative law now has a legislative basis. The common law obviously
still has a considerable though indirect role to play as a source of interpretation of article 47
of the constitution and the provisions of the Fair Administrative Actions Act, 2015.