Judicial Review Grounds in Kenya

Question

With mention to distinct instances, discussextremist vires, legal power mistake, mistake of fact and mistake of jurisprudence as evidences of judicial reappraisal in Kenya.

Introduction

Judicial reviews-They tribunal proceedings in which Judgess review the lawfulness of determinations or actions made by public organic structures such as parastatals or lower tribunals. Our treatment will go around around major issues that call for judicial reappraisal. We are traveling to travel in deepness to understand extremist vires, jurisdictional mistake, mistake of fact and mistake of jurisprudence.

These four constructs are related to some extent and one can easy be confused to intend the other. An effort to demystify them is as follows:

ERROR OF FACT.

A determination may be subjected to judicial reappraisal on the footing of factual affairs. This may originate and be justified if there is an wrong determination as respects precedent facts or if there’s an irrational decision from facts.1Facts are critical to the devising of administrative determinations. The cogency of a determination or an action depends on the devising of rational decisions from facts and proper grasp of the facts. Mistake of jurisprudence may originate where:

  1. Where facts have non been decently appreciated
  2. Where irrelevant facts have been taken into consideration
  3. Where facts have non been decently interpreted
  4. Where there is an wrong determination from facts
  5. Making irrational decision from facts

Where action is taken in the thick of such errors, it’s rendered improper.

In the instance of Richmond upon Thames LBC V Kubicek whereby Mrs Kubicek had sought aid from a local lodging bureau in order to be given shelter since she was being abused at her marital place, at first she was given shelter but at that place after the bureau decided that she was non entitled to it because she had her marital place. Mrs Kubicek challenged this determination in tribunal and at first case the determination was let to stand since there were facts which indicated that Mrs Kubicek was still in regular contact with her hubby and therefore was n’t afraid of him as she claimed. On entreaty it was subsequently brought forward that both the local bureau and first tribunal made their determinations on an factual mistake as it was proved that she had non been in contact with her hubby as earlier claimed therefore the determinations could non stand as they were both made with respect to factual mistakes

ERROR OF Law

It is a error in relation to a jurisprudence regulating the maps of an administrative organic structure. A error in relation to an applicable jurisprudence normally occurs when an administrative organic structure does something contrary to the commissariats of an applicable jurisprudence. The jurisprudence could be an act of parliament, fundamental law, subordinate ordinance.

Factors that give rise to mistakes of jurisprudence include: ignorance, misunderstanding, platen neglect of the jurisprudence, misconstruing the jurisprudence, carelessness, failure to look up the jurisprudence and misconstrual of the jurisprudence.

Mistakes of jurisprudence can be categorized into three:

  1. Harmless mistake –a error by the determination shaper that does non interfere with the parties’ rights or redresss and as a consequence a reversal of the determination is non warranted.
  2. Plain mistake – this is said to be an obvious mistake that has an inauspicious consequence so much that the tribunal reverses the old determination.
  3. Reversible mistake –this involves a error by the determination shaper that adversely affects a person’s right and therefore is a land for judicial reappraisal.

Many mistakes of jurisprudence are mistakes of reading. A determination shaper falls into mistake by holding an wrong reading on the legal regulations applicable to the determination to be made or by using an unsuitable regulation or by disregarding an applicable one.2

  • R V Northumberland Compensation Appeal Tribunal ex parte ShawThe applier worked with the employer for a period of clip and resigned and rehired. The employee claimed compensation on the expiration of employment. Under the relevant ordinances, the court was required to measure the compensation collectible by aggregating two periods of employment. In its determination the court stated that the two periods of employment, merely the 2nd period should be taken into history. The tribunal ruled that there was mistake of jurisprudence and that the organic structure failed to see the 1stperiod of employment and merely considered the 2neodymiumperiod. The determination was quashed due to error of jurisprudence. The tribunal found that this amounted to an mistake on the face of the record and the order of certiorari was issued.
  • Abdul Majid cockarVthe Director of pensions. The pensions section made a error in ciphering the pension collectible to the former head justness Cockar. He went to tribunal and upon application of judicial reappraisal the tribunal issued the order of certiorari to repress the determination presenting the former CJ an sum of money as pension.
  • Kenneth MatibaVAttorney General.The tribunal considered a determination made by the regulations commission of the High tribunal sing applications for leave to use for judicial reappraisal. The Rules commission of the High tribunal is empowered to do regulations for judicial reappraisal and must do the regulations in conformance with the enabling legislative act which is the jurisprudence reform Act ( cap 26 ) by legal notice no 164 of 1992. The commission purported to amend order 53 of the civil process regulations by making off with the demand for leave as a conditional case in point to using for Judicial reappraisal. In so making they did non think with the commissariats of the subdivision 8 of the Law Reform Act. The tribunal ruled that the Acts of the Apostless of the Rules commission wereultra-viresand hence void and null to the extent that they were non in conformance with the enabling legislative act.
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JURISDICTIONAL ERROR.

Legal power may be defined as the authorization of an administrative organic structure or the district on geographic country within which an administrative organic structure is authorized to run. The territorial facet applies where a organic structure does non hold a national authorization – where a organic structure has a defined boundary within which to run such as land control boards, county authoritiess.

The term legal power mistake occurs when the extent of that authorization is misconceived, in state of affairss where a organic structure mistakenly purports to exert legal power which it does non possess or diminutions to exert one which it does. Decisions affected by jurisdictional mistake can be quashed by judicial reappraisal. Judicial reappraisal will lie where an inferior tribunal or tribunal or public organic structure has acted without or in surplus of its legal power. In doing its determination, such a organic structure must non inquire itself the incorrect inquiries, and must non take into history affairs which it has non been directed to take into history. Any order must be one which it has legal power to do.7

Jurisdictional mistake besides arises when an administrative organic structure fails or diminutions to make something that falls within its authorization in the misguided belief that it is non within its authorization. The landmark instance on jurisdictional mistake is:

  • Anisminic limited 5 Foreign compensation committee.Anisminic was an English company which had owned belongings in Egypt. As a consequence of the Suez canal crisis the belongings was occupied by Israeli forces and so sequestrated by the Egyptian authorities. Anisminic obtained ? 0.5 million from mandatory “sale” of is belongings to an Egyptian organisation called TEDO. Under a pact, the Egyptian authorities paid the UK authorities ? 27.5 million compensation for belongings claims by UK subjects. The FCC was the organic structure empowered to pull off this fund, in conformity with the foreign compensation Act of 1950 and a 1962 order in council. By article 4 of the order it was provided that FCC “shall treat a claim…as established “if satisfied that the applier was the “owner” of the relevant belongings or the “successor in rubric of such person” . The FCC rejected Anisminic’s claim on the footing that TEDO was its “successor in title” , and as such it was non of British Nationality and so the claim did follow with the footings of the relevant delegated statute law.

Opinion: The House of Lords held that FCC had misconstrued article 4, in such a manner that its finding was a “nullity” and so non covered by subdivision 4 ( 4 ) of the act which provided that FCC’s finding of any application “ shall non be called into inquiry in any tribunal of law” . It had made an erroneous enquiry, departed from its authorization and made a determination outside its permitted field.

In instances of jurisdictional mistake, the built-in powers of the tribunal may be invoked to guarantee that the organic structure concerned if it failed to exert legal power which it has, is compelled to make so by manner ofmandamus, and in instances where the organic structure did non hold legal power, the ensuing determination is quashed by manner ofcertiorari.

ULTRA VIRES

Ultra viresagencies moving in surplus of power / beyond powers. When an administrative organic structure acts beyond its powers or in surplus of its powers it has acted extremist vires and whatever it does extremist vires is void and nothingness.Ultra viresbesides refers to an exercising of power that was non intended by the legislative authorization doing the Torahs. Such exercising of power is improper and is rendered void and nothingness. Theextremist viresphilosophy supports the thought of application of natural justness in administrative determination devising.

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By and large, theextremist viresphilosophy is of a impression that an authorization can non make up one’s mind on a affair which it has no legal power and if intents to hold such authorization, tribunals will repress the determination in its exercising of judicial reappraisal.

There are two types ofextremist vires:

  1. Proceduralextremist vires

Proceduralextremist viresis a state of affairs where an administrative organic structure or person has the legal power to make something but fails in run intoing a demand that relates to exerting that power in a lawful mode. Another possible account is when an administrative organic structure fails to follow a prescribed process in making a determination.

A determination is declared void and null if an administrative organic structure fails to follow the process laid out by the related legislative act. Even when no process is provided for in a legislative act, it is implied that the regulations of natural justness, pattern of good religion and equity every bit good as the rules of good disposal must be applied in doing determinations.

Courts are acute to separate between compulsory procedural demands and directory procedural demands when make up one’s minding on instances associating to proceduralextremist vires.

A compulsory procedural demand must be purely followed and applied. A failure to make this renders the determination or action invalid and it can be dismissed by the tribunal.

  • Maina v. Nairobi Liquor Licensing Court. Facts: The Liquor Licensing Act stated that the president of the spirits licencing tribunal should give a licensee a 30 days’ notice of a summon on evidences of misconduct. The licensee was nevertheless given a fortnight’s notice. On the twenty-four hours of the meeting, the licensee’s licence was withdrawn. The appellate argued that he had been denied the 30 days’ notice which he was entitled to and dispute that the notice given to him did non follow with the commissariats of the jurisprudence. Opinion: The tribunal ruled that the aforementioned demand was compulsory and therefore the notice was improper.

However, a directory procedural demand is a mere usher and when an administrative authorization does non follow it ; its determination still remains valid and actionable. The importance of following with the processs set out has been illustrated in the undermentioned instances:

  • Muge Cherogony V Chief of General Staff of the armed forces of Kenya and others. The applier was a military officer and wanted the High Court to reexamine a determination made by the respondents to subject him to the legal power of the Court Martial. The applicant argued that the respondents had made the determination reverse to the commissariats of the Standing Orders of the ground forces. The commissariats stated that certain stairss had to be taken before the applier could be sent to a Court Martial. These stairss were non taken and the determination was hence immature. The tribunal held that the said process was non followed and a fatal procedural breach was hence committed because the demands were compulsory and non simply directory.
  • Irungu Kangata and others v University of Nairobi. The appliers were pupils of the University of Nairobi and were suspended by the University expecting disciplinary action. The University subsequently summoned the pupils to look before its Senate Disciplinary Committee and as a consequence of the disciplinary session, the commission suspended some pupils and expelled others. The appliers applied to the tribunal to render the determination nothing and nothingness on the evidences that the process as to their suspension and ejection was improper. This is because University ordinances set out that any disciplinary action against pupils be dealt with first by the Halls Disciplinary Committees and College Disciplinary Committees. The Senate Disciplinary Committee merely had appellant legal power and hence did non hold the power to take any disciplinary action against them. The appliers besides argued that the determination of the Senate Disciplinary Committee was void and nothingness because the Senate Disciplinary Committee lacked pupil representatives and this contradicted the compulsory commissariats in the university ordinances that required the presence of at least three pupil representatives. The Court, after carefully analyzing the University ordinances came to the decision that the Senate Disciplinary Committee merely had appellant legal power over disciplinary action and non original legal power and therefore it acted inextremist vires.

It is normally hard to determine whether a procedural demand is compulsory or directory. It can be deciphered from frequent tribunal pattern that the more indispensable a procedural demand is, the more it is likely to be held compulsory.

Courts are really acute on procedural demands and frequently grant alleviation to the people affected by the in attachment of such demands particularly when a right has been infringed because such a misdemeanor is penal in nature.

  • White and Collins v curate of Health.Concerns exercising of power of mandatory purchase of land. A lodging Authority was granted power under the Housing Act of 1936 to get land obligatorily for lodging provided that land did no signifier portion of any park, garden or pleasance land. The lodging authorization went in front and acquired land or purported to get land that was a park. After they acquired this land, they sought and obtained verification of their acquisition from the curates of wellness ( responsible for giving verification of such services ) . The parties brought an suit seeking to hold the purchase order invalidated on the evidences that the order to buy this land wasextremist vires. The purchase was extremist vires because the land was a park and there was statutory limitation on purchase of any land that was a park. The tribunal quashed the order declaring it void and nothingness. The administrative organic structure is the Housing authorization which acted in surplus of its powers by buying land that was restricted by legislative act.
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When an administrative organic structure acts irrationally or unreasonably, a individual aggrieved by such action is entitled to petition the High tribunal for judicial reappraisal. Unreasonable action is administrative action or behavior that goes beyond the scope of responses moderately open to an decision maker. A organic structure is considered unreasonable if they have failed to see affairs that should be taken into history.

  • R V Ealing Borough council Ex parte Times Newspaper ltd( 1986 ). In this instance the council was held to be unreasonable in declining to supply certain newspapers to their libraries because the council did non hold with the newspapers owners on political evidences. The tribunal held that the council was unreasonable in declining to supply their libraries with certain newspapers.
  1. Substantialultra-vires

Whether or non an authorization is moving within the legal range of its powers is a affair of reading of the jurisprudence or organic structure allowing the power in inquiry. A good illustration, an establishment granted power by parliament to look into affairs impacting Security can non in their exercising of powers assume legal power over non-security affairs. In using the same logic, a tribunal vested with powers to judge upon differences affecting concern premises can non purport exercising of the power assume legal power over residential premises. The undermentioned instances are exemplifying:

  • Attorney General V Fulham Corporation.Fulham Corporation had statutory authorization to set up baths, washhouses and unfastened bathing topographic points where persons could rinse their ain apparels and bath for free. While purporting to move under that power, the corporation opened a new strategy of laundry service in which its employees would rinse apparels at a certain fee and invited individuals to go its clients. The tribunal held that in making the new strategy, the Corporation was movingultra-viresthe enabling legislative act as this constituted a wholly different endeavor affecting a trade for net income.
  • Koinange Mbiu V R. The Governor in Council was vested with powers to do regulations and ordinances refering to the countries in which java would be grown. The governor made regulations curtailing Africans from turning java in peculiar countries. Mbiu Koinange was charged and convicted on his ain supplication of guilty under this ordinance. On entreaty it was held that the regulation wasultra-viresand nothingness for alternatively of commanding countries where java could be grown by all individuals by and large, it sought to command races that could turn java in peculiar countries.

Decision

The modern universe welcomes a really complex administrative determination doing both in tribunals and courts. The creative activity of judicial reappraisal is to guarantee that the determination shapers consider the followers when giving their finding of fact unreasonableness, Relevant or irrelevant considerations, Error of jurisprudence. The reappraisal assist the determination shapers non to travel outside the boundaries when giving the finding of fact.

Mentions

  1. PLO Lumumba, Judicial Review In Kenya ( 2neodymiumerectile dysfunction, Law Africa 2006 ) at 25
  2. P Crane An Introduction to Administrative Law ( 3rderectile dysfunction )
  3. [ 1951 ] 1 KB 711
  4. Miscellaneous civil Application 532 of 1998
  5. Miscellaneous civil application figure 790 of 1993
  6. Chapter 26 of the Torahs of Kenya
  7. PLO Lumumba, Judicial Review In Kenya ( 2nd erectile dysfunction, Law Africa 2006 ) at 22
  8. [ 1969 ] 2 Ac 147
  9. PLO Lumumba, Judicial Review In Kenya ( 2nd erectile dysfunction, Law Africa 2006 ) at 23
  10. 2 KB 838
  11. [ 1964 ] AC 40
  12. [ 1948 ] 1 KB 223
  13. Kaluma Peter, Judicial Review Law Procedure and Practice 2nd edition.
  14. Webster new universe jurisprudence lexicon right of first publication 2010 by Wiley printing inc. Hoboken New Jersey
  15. West’s encyclopaedia of American jurisprudence edition 2 right of first publication 2008
  16. KENYA jurisprudence studies
  17. Re Refugee Review Tribunal ; Ex parte Aala ( 2000 ) HCA 57, 162 Hayne J

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