THE COURTS SHOULD DRAW LIMITS

TO DISCRETIONARY POWER IN A WAY

WHICH STRIKES THE MOST SUITABLE
BALANCE BETWEEN EXECUTIVE
EFFICIENCY AND LEGAL PROTECTION
OF THE CITIZEN
 OVERVIEW
 INTRODUCTION
 PRINCIPLES OF ADMINISTATIVE LAW
 LEGALITY
 NATURAL JUSTICE
 LEGITIMATE EXPECTATIONS
 REASONABLENESS
 PROPORTIONALITY
 DUTY TO GIVE REASONS
 CONCLUSION
 INTRODUCTION
 Discretionary powers refer to when the administrative agencies have the power to make a
choice
about whether to act or not act, to approve or not approve, or to approve with conditions. The
role of the decision-maker is to make a judgement taking into account all relevant
information.
 Mechanisms therefore have to be put in place to check the administrators’ use of
discretionary
powers.
 It is in this way that the courts through the process of judicial review try to strike a
balance between smooth and efficient functioning of the administrative agencies as well as
protection of the legal rights of citizens.
 Principles of administrative law
Proportionality

Duty To Give Reasons

Legitimate Expectations

Natural Justice

Reasonableness

Legality
 legality
Every exercise of governmental power that affects thee I.
rights of and interests of an individual must be shown to Does not follow
the rules of fair
have a strictly legal pedigree. Promotes rule of law procedure,
Reasons for grant of discretionary powers.
1. Expertise, experience and specialization.
2. Flexibility in decision making. To deal with this issue
courts will adopt a II.
These discretionary powers are so wide so as to IV. wide application of the Irrelevant
The purpose ultra vires doctrine. consideratio
circumvent the principle of legality. The court then will
being obtained ns were
is improper. allow one to challenge
Ultra vires doctrine: A person or body acting under a decision on the
taken into
statutory power can only do those things the statute account,
grounds that it
authorizes him to do
The courts stretch the doctrine of ultra vires, find implied
limitations from statute. III.
Unreasonablene
Legislature would not have intended for this powers to be ss in the
used unreasonably. decision, and
that
 NATURAL JUSTICE
Administrative agencies should remain free of bias, and
accord the affected parties a chance to be heard, present
facts, opinions, arguments and defend themselves on
Natural justice involves the administration, maintenance and provision
decisions that are likely to directly and adversely affect of what is just, right, proper, morally upright or deserved by the
them. inherent nature of a person of what is right and wrong. These principles
“the exercise of some powers may require the are implied. There are two major principles of natural justice
abrogation and abridging or suspension of the
application of these principles (of natural justice)
because it is more difficult for the courts to control an Nemo Judex in Causa Sua Audi alteram partem which
exercise of power on a large scale where the treatment which means that procedures in means that every person should
to be meted out to a particular individual is only one decision making must be free not be denied the right to be
of many matters to be considered” from bias. heard.
- Lord Reid
1.The real likelihood of the bias
Tests
for 2. Reasonable suspicion of bias
bias
used Case • 1. R V. Law Society Of Kenya and Another
Ex Parte Frank Ochieng Walukwe [2016]
by They test for whether the decision eKLR
courts maker has an interest and stands to gain
from the decision, and if he will be
law • 2. Gladys Boss Shollei V. JSC and Another
[2014] eKLR
influenced.
 Legitimate expectations
Legitimate expectation has two aspects: procedural; and substantive.
 Procedural aspect is the expectation of a person that has a right to a certain procedure
e.g. the right to a hearing as a result of the action of the public authority.
 ‘Substantive aspect’ is where an individual is seeking substantial benefit which is
brought about by the legitimate expectation he/she had.

FAIR ADMINISTRATIVE ACTION ACT, S7

(2) (m) “A court or tribunal under subsection (1) may review and
administrative action or decision if - the administrative action
or decision violates the legitimate expectations of the person to

Nabulime Miriam Rose Wangui

& others v Mambo & 2
Case Law Council of Legal
Education &
others v Limuru
Country Club
5others & 17 others
 reasonableness
The doctrine of separation of powers states that ‘it is not
for the courts to substitute their judgement for that of the

Contemporary reasonableness
public body where discretionary power has been assigned
to the latter.’

a) Where manifestly excessive or inadequate weight

CONSTITUTION OF KENYA, ARTICLE 47(1) - has been accorded to a relevant consideration.
Every person has the right to administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair.

b) Where a decision lacks ostensible logic or

FAIR ADMINISTRATIVE ACTION ACT, S4(1) - comprehensive justification.

test
Every person has the right to administrative action which is
expeditious, efficient, lawful, reasonable and procedurally fair. c) Where there is no logical connection between the
evidence and the ostensible reasons for the decision

Associated Provincial Picture Houses Ltd v

It was

in the cases
established

ssof

Wednesbury Corporation. d) Where something which is wrong, or a

misunderstanding of the facts upon which the decision
Council of Civil Service Unions v Minister for depends are taken into consideration.
the Civil Service
Republic v Kenya Power & Lighting
Company & another [2013] eKLR
 Proportionality
The means used to arrive at a decision must be ELEMENTS OF THE
appropriate to achieve the objectives sought and must
not go beyond that which is necessary in so doing. PRINICIPLE OF
PROPORTIONALITY
RELATION TO DISCRETIONARY POWERS:
protects citizens legal rights in that decision makers Appropriateness
cannot use inappropriate means to arrive at a
decision.
Necessity
KENYAN JURISPRUDENCE ON
PROPORTIONALITY.
Suchan Investment Limited v. Ministry of National
Heritage & amp; Culture and 3 others: proportionality Balancing
invites the court to evaluate the merits of the decision.
 Duty to give reasons
This duty asks of an administrator to give adequate and
intelligible reasons for a given decision.
• “If a right or FAIR
RELATION TO DISCRETIONARY POWERS: curbs
fundamental ADMINISTRATIVE
irresponsible exercise of discretionary powers in decision freedom of a person ACTION ACT, S4 (2):
making since the reasons for a decision made by an agency has been or is likely
will ultimately be interrogated; promotes fairness. to be affected by
administrative • "Every person has
action, the person the right to be
has the right to be given written
given written reasons for any
• Republic v National Police reasons for the
KENYAN Service Commission Ex parte administrative
action”. action that is
JURISPRUDENCE Daniel Chacha (2016) eKLR. CONSTITUTION
• Judicial Service Commission v taken against
ON THE DUTY TO OF KENYA,
Mbalu Mutava and another him”.
GIVE REASONS ARTICLE 47(2):
(2014) eKLR
 conclusion

In conclusion, discretionary powers are granted to ensure that decision

making is more precise in tackling given problems. However
discretionary powers do not accord governmental agencies a free pass
to operate in violation of the law. The court therefore through judicial
review uses different tools like the principles of administrative law to
strike down unjust and unlawful decisions. These principles also guide
the court appropriately on what compromise needs to be allowed to let
administrative agencies function effectively.