ADMINISTRATIVE LAW GROUP 4 ASSIGNMENT
1a) What is the relevance and impact of the Kenyan Constitution 2010 on Administrative
Action today?
The Kenyan Constitution 2010 has had a wide range of implications on administrative action in
Kenya. Today’s administrative procedures in Kenya are heavily influenced by the 2010 Kenyan
Constitution which makes sure they adhere to the values of accountability, transparency and
fairness.
1.First, the right to be given written decisions for administrative action has promoted
accountability, which is enshrined under Article 10 (2) (c) of the 2010 Constitution.
This requirement means that decision-makers must have a legal basis for the reasons.
Constitutionalizing administrative action has ensured that the courts have more judicial control
over the activities of the administration through the establishment of Judicial review as a relief
for aggrieved parties. This has allowed the courts to scrutinize and set aside or correct
administrative decisions that are inconsistent with the rule of law. As such, any administrative
action can be subjected to constitutional challenge.
2. The Kenyan Constitution has promoted human rights in administrative action.
The administrative actions that infringe on constitutional rights such as the right to equality
which is under Article 27 and human dignity under Article 28. This can now be challenged in
courts or other relevant oversight bodies.
3.The Kenyan Constitution 2010 has promoted good governance in administrative bodies,
particularly in matters concerning administrative action.
Article 47(1) which essentially forms the foundation of administrative action implies that
administrative action is governed by the principles of the Constitution, which promotes good
governance. The fair Administrative Action Act was enacted to operationalize Article 47
mechanisms for aggrieved parties to seek remedies for administrative injustices. This provision
in the 2010 Constitution has helped in challenging decisions which had been made by various
government offices. Case scenario;
Kenya National Examinations Council v. Republic (2014)
The case of Kenya National Examinations Council v. Republic (2014) concerned a decision by the
Kenya National Examinations Council (KNEC) to cancel the results of a student, Geoffrey
Gathenji Njoroge, and nine others, in the Kenya Certificate of Secondary Education (KCSE)
examination.
The facts of the case were as follows:
The case involved Geoffrey Gathenji Njoroge and nine other students who had sat for
the Kenya Certificate of Secondary Education (KCSE) examination in 1996.
KNEC canceled their results, alleging that they had been involved in examination
irregularities. The nature of the alleged irregularities was not fully explained, and the
students were not given an opportunity to defend themselves before their results were
canceled.
The students argued that the decision was unlawful and procedurally unfair, as they
were not informed of the allegations against them or given a chance to respond.
The High Court found in favor of the students, quashing KNEC’s decision. The court held
that KNEC’s decision to cancel the students' examination results was unlawful and
procedurally unfair.KNEC had violated the Right to Fair Administrative Action by lacking
to respect individuals right to be heard before any decision that could adversely affect
them is made.
KNEC appealed the High Court's ruling to the Court of Appeal, but the Court of Appeal
upheld the High Court's decision. The appellate court agreed that KNEC had acted in
violation of the students' right to fair administrative action and that the council had not
followed the due process required under the Constitution. The appeal was dismissed,
and the High Court's decision stood.
4. Has promoted transparency in administrative actions through access to information.
Article 35 gives citizens the right to access information held by the state and information
held by the state information held by any other persons. This encourages public officials
to reveal relevant information to the public and be held accountable for the
shortcomings.
5.The Kenyan Constitution has led to the decentralization of governance.
The Constitution introduces devolution in Chapter 11, which requires county
governments to act in a transparent, accountable and participatory manner. This
decentralization ensures localized scrutiny of administrative action. This has also
improved service delivery by bringing the government close to the people and reducing
inefficiencies in centralized decision making.
6.The Kenyan Constitution has introduced public service principles.
The Constitution also outlines principles for public service, including accountability, efficient use
of resources, and encouraging public input into policymaking. Such provision have aided in
enhancing accountability in their actions and transparency in their operations.
Article 232 of the constitution outlines that:
232. (1) The values and principles of public service include— (a) high standards of professional
ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective,
impartial and equitable provision of services; (d) involvement of the people in the process of
policy making; (e) accountability for administrative acts; (f) transparency and provision to the
public of timely, accurate information; (g) subject to paragraphs (h) and (i), fair competition and
merit as the basis of appointments and promotions; (h) representation of Kenya’s diverse
communities; and (i) affording adequate and equal opportunities for appointment, training and
advancement, at all levels of the public service, of— (i) men and women; (ii) the members of all
ethnic groups; and (iii) persons with disabilities. (2) The values and principles of public service
apply to public service in— (a) all State organs in both levels of government; and (b) all State
corporations
This provision has helped put public service bodies in line to avoid exploitation of the general
public.
7. The Kenyan Constitution has strengthened the independence of the Judiciary
The 2010 constitution established an independent judiciary with the power to review
administrative decisions and ensure they comply with the law and the principles of fair
administrative action.
Article 160 outlines that:
160. (1) In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be
subject only to this Constitution and the law and shall not be subject to the control or direction
of any person or authority.
8.Has promoted public participation and accountability
We have Article 10 which enshrines the principles of governance, including participation of the
people, transparency and accountability. This has helped to ensure that administrative
decisions are made with public involvement, reducing instances of corruption. The public
officers are also required to adhere to the Constitutional values making them more accountable
for all their actions. Administrative bodies are required to provide mechanisms for consultation,
ensuring that the voices of citizens are heard in governance processes.
9.Has enhanced judicial oversight.
Article 165 gives the High Court jurisdiction to review administrative decisions thus ensuring
checks and balances on administrative powers. Judicial review is now anchored as a
constitutional right, not merely as a common law remedy. The Constitution does strengthen
judicial review by providing mechanisms to challenge any unlawful administrative actions. This
offers a safeguard for individuals or groups who feel that their rights seem to have been
violated by any administrative decisions, ensuring that these actions are consistent with
constitutional standards.
b)Do you agree that the Constitution 2010 has constitutionalised administrative law? Explain
your answer using constitutional provisions and judicial decisions.
Yes, the Constitution of Kenya, 2010 has indeed constitutionalized administrative law.
Administrative law deals with the exercise of power by public authorities and the rights and
remedies available to individuals when they are adversely affected by such exercises of power.
The Constitution of Kenya 2010 has introduced several provisions that directly impact
administrative law.
We can ascertain this using various provisions in the constitution of Kenya 2010:
1. Article 47
Administrative action has its foundation in article 47 of the Constitution of Kenya which states,
47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
Article 47 guarantees the right to fair administrative action, which is one of the core principles
of administrative law. This provision ensures that administrative decisions and actions are
lawful, reasonable, and procedurally fair.
The Constitution of Kenya as well as the Fair Administrative Action has put up stipulations that
open up administrative actions to review scrutiny under the lens of the law by giving
frameworks that have to be adhered to when taking administrative actions that affect the
public or that in line with the public interest.
The case of Kenya Human Rights Commission v. Attorney General & Another (2017) is a
significant example of how Article 47 of the Constitution is applied.
In this case, the Kenya Human Rights Commission (KHRC) challenged the government's
decision to suspend the registration of non-governmental organizations (NGOs) by the Non-
Governmental Organizations Coordination Board.
The key issues in the case centered around whether the government’s action was lawful,
reasonable, and procedurally fair, as required under Article 47. Specifically, KHRC argued that
the decision to suspend the registration of NGOs was arbitrary, lacked transparency, and was
made without giving the affected NGOs an opportunity to be heard—thus violating their right
to fair administrative action.
The High Court agreed with the KHRC and found that the suspension of the NGO registrations
was unlawful. The court held that the government had failed to provide adequate reasons for
its decision and had not followed the proper procedures, such as informing the affected
organizations and giving them a chance to respond before the decision was made. In essence,
the government’s actions violated the principles of fairness, transparency, and accountability
outlined in Article 47 of the Constitution.
The court’s decision reinforced the idea that administrative decisions, especially those that
impact the rights of individuals or organizations, must not only be made according to the law
but must also adhere to the principles of procedural fairness.
2.Article 232
Article 232 outlines the principles and values of public service, which include
transparency, accountability, and public participation in decision-making. These values
help in ensuring that administrative actions are not only efficient but also fair and
equitable.
232. (1) The values and principles of public service include— (a) high standards of
professional ethics; (b) efficient, effective and economic use of resources; (c) responsive,
prompt, effective, impartial and equitable provision of services; (d) involvement of the
people in the process of policy making; (e) accountability for administrative acts; (f)
transparency and provision to the public of timely, accurate information;
It mainly highlights the principles of public service which emphasize on efficiency,
responsiveness and meritocracy in administrative actions. The case of Kenya Civil Aviation
Authority v. Aviation and Allied Workers Union Kenya & 2 Others (2020) is an example where
court applied the provision in article 232 of the 2010 constitution regarding constitutional
principles of fair administrative action, transparency, accountability, and public participation.
In this case, the Kenya Civil Aviation Authority (KCAA) made a decision to transfer several
employees to different locations, but the employees were not properly consulted, nor were
they provided with sufficient reasons for the transfers. The Aviation and Allied Workers Union
Kenya (the union representing the affected employees) challenged the decision, arguing that it
violated the employees' rights under the Constitution, particularly the principles governing
public service and administrative action.
The Employment and Labour Relations Court found in favor of the Aviation and Allied Workers
Union and the affected employees. The court held that the Kenya Civil Aviation Authority had
violated the constitutional principles of transparency, accountability, and public participation as
enshrined in Article 232. The court emphasized that when a public authority makes decisions
affecting employees, those decisions must not only be lawful but must also follow proper
procedures and principles of fairness and inclusivity. The KCAA’s failure to consult the
employees and provide transparency regarding the reasons for the transfers was a breach of
both procedural fairness and the requirement for public participation.
3.Article 165 (3) (6) and (7)
The Constitution grants the High Court the authority to oversee administrative actions and
ensure they align with constitutional principles, particularly in protecting rights and
fundamental freedoms.
Article 165 (6) The High Court has supervisory jurisdiction over the subordinate courts and over
any person, body or authority exercising a judicial or quasi-judicial function, but not over a
superior court. (7) For the purposes of clause (6), the High Court may call for the record of any
proceedings before any subordinate court or person, body or authority referred to in clause (6),
and may make any order or give any direction it considers appropriate to ensure the fair
administration of justice.
Judicial review is essential for ensuring that administrative decisions comply with both
procedural fairness and the substantive law. Courts can set aside decisions that are irrational,
unreasonable or violate constitutional rights.
The Nairobi Metropolitan PSV Saccos Union Limited & 3 Others v. County Government of
Nairobi & 2 Others (2015) case is a landmark example of the High Court exercising its
supervisory jurisdiction under Article 165(6) of the Constitution. In this case, the court
reinforced the principle that administrative bodies, particularly those performing quasi-judicial
functions, are subject to judicial review to ensure adherence to constitutional and legal
standards.
The County Transport and Licensing Board, as highlighted in this case, was deemed to perform
quasi-judicial functions because its decisions affected the rights, obligations, and interests of
public service vehicle operators. The High Court held that it had the jurisdiction to review the
Board's actions to ensure they complied with the principles of fair administrative action under
Article 47 of the Constitution.
4.Article 10
Article is national values and principles and it works on binding all state organs, public officers
and citizens in order to uphold values such as transparency, good governance, accountability
and integrity. These values play a key role in influencing the conduct of administrative bodies
and assist in the decision making processes. In article 10(2) which provides that "The national
values and principles of governance include—...c) good governance, integrity, transparency and
accountability" Administrative bodies must be accountable for their decisions. In Nancy
Makokha Baraza v Judicial Service Commission & 9 others [2012] eKLR, he Petitioner prayed
for, among other things, the court’s declaration that the process- which led to the decision,
findings and recommendations of the sub-committee that made inquiries into the allegations
about her conduct- was ‘unprocedural, unconstitutional, autocratic, biased, compromised,
in breach of the rules of natural justice, in breach of the doctrine of separation of powers and in
particular judicial independence…” The court stated that bodies exercising administrative
authority must give reasons for administrative actions, and that they must comply with the
principles of natural justice. Natural justice, according to the court, required that persons affected
by an adverse position must be given an opportunity to make representations.
The Commission on Administrative Justice, also known as the office of the Ombudsman, is a
constitutional commission established by the Commission on Administrative Justice Act of
2011, which is essentially mandated to protect the right to fair administrative action in Kenya.
This is an important aspect in the constitutionalizing Administrative Action because an
independent commission set up to promote human rights in public and private institutions is
essential in holding Administrative Actions accountable to the standards of the constitution.
Other relevant case laws;
1) Application E057 of 2022; Republic v National Cohesion and Integration Commission;
Chama Cha Mawakili Limited (Exparte) (Judicial Review Application E057 of 2022)
[2022] KEHC 10206 (KLR) (Judicial Review) (14 July 2022) (Judgment)
CASE SUMMARY;
Court faults the National Cohesion and Integration Commission for the unprocedural
classification and ban of the terms “hatupangwingwi” and “watajua hawajui” as hate
terms.
The National Cohesion and Integration Commission (the respondent) was a body in
charge of promoting national identity and values, mitigated ethno-political competition
and ethnically motivated violence, as well as elimination of discrimination on ethnic,
racial and religious basis and promoted national reconciliation and healing. Part of their
mandate was classifying and banning terms that they considered to be hate speech. On
April 11, 2022 the respondent classified the words “hatupangwingwi” and “watajua
hawajui” as hate speech and banned the words.The petitioner challenged the decision
of the respondent in the instant petition to ban the aforementioned terms. The
petitioner faulted the respondent for unilaterally classifying the words as hate speech
and contended that the ban on the words was irrational, unreasonable, made in bad
faith, ultra vires and a breach of its right to fair administrative action.
Issues
1. Whether the mandate of the National Cohesion and Integration Commission to classify
and ban hate terms/speech was an administrative action that was amenable to judicial
review.
2. Whether the National Cohesion and Integration Commission followed the proper
procedure laid in its decision to ban and/or classify the terms “hatupangwingwi” and
“watajua hawajui” as hate terms.
3. Whether the decision of the National Cohesion and Integration Commission to ban
and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms
violated the petitioner’s right to fair administrative action.
COURT’S DECISION
1. Article 47 of the Constitution granted every person the right to administrative action
that was expeditious, efficient, lawful, reasonable and procedurally fair. Section 2 of the
Fair Administrative Action Act (FAAA)defined an administrator as any person who took
an administrative action or who made an administrative decision. The impugned action
was an administrative action within the meaning of the FAAA as it affected the legal
rights and interests of the applicant and other citizens who may be inclined to use the
targeted words. The respondent was an administrator as defined in the FAAA in the
context of the action taken.
2. The applicant’s freedom of speech was affected by the decision of the respondent. The
impugned action being an administrative action within the meaning of the FAAA
brought it directly within the purview of the court’s jurisdiction conferred by section
9(1) of the FAAA. It was an action amenable to judicial review.
3. Where an administrative action was likely to materially and adversely affect the legal
rights or interests of a group of persons or the general public, section 5(1) of the FAAA
safeguarded the rights of such a group of persons or the general public by requiring an
administrator to issue a public notice of the proposed administrative action inviting
public vies or considering any views submitted relating to the action. There was no
evidence that the respondent issued the notice or considered all material facts. Though
the respondent appeared to have given reasons for the administrative action, giving the
reasons at the tail end of the impugned action in the absence of hearing the affected
parties could not in all possibility sanitize the action. The respondent had not issued a
public notice specifying the internal mechanism available to the persons directly or
indirectly affected by the action to appeal and the manner and period within the which
such appeal was to be lodged.
4. The right to be heard was cardinal and could not be derogated. The respondent
undertook a crucial and sensitive role in promotion of national cohesion in an
environment of pronounced diversity. The statutory power donated to it, however, had
to be exercised within the law and in strict observance of individual and collective rights
enshrined in the Constitution and the law. However well-meaning the respondent could
not get away with unilateral decisions that affected the citizenly without regard to their
constitutional and legal rights topmost of which was the right to heard.
5. Every administrator bestowed with statutory powers to make decisions or to take
actions that adversely affected an individual or group of individuals was not to lose sight
of the provisions of sections 4 and 5 of the FAAA and to specifically accord such
person(s) notice of intended action, hear their views, consider all relevant matters, give
reasons for the decision taken and inform them of the right and manner of appeal. The
respondent did not follow due process before taking the impugned action. The
applicant’s rights enshrined in article 47 of the Constitution and operationalized through
the FAAA were trampled upon.
2.Judicial Service Commission v Mbalu Mutava $ Another
The appeal raised primarily two constitutional questions, first whether the Judicial
service Commission in initiating the process of removal of judge under Article 168(2) of
the Constitution is bound to afford a judge a fair administrative action under Article
47(2) of the Constitution and if so, to what extend and secondly, whether the president
upon receipt of a petition from JSC for removal of a judge is bound by Article 168(5) of
the Constitution to both suspend the judge and appoint a tribunal to inquire into the
matter within 14days of the receipt of the petition.
The court of appeal held that Article 47 entrenches the right to fair administrative action
as a fundamental right, shifting administrative justice from the realm of common to a
constitutional framework. In addition to that the court stated that it 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.
