Control of administrative action.

Control of admission may take various forms. It may take the form of public opinion by way of Complaint, demonstrations, or by way of press through editorial opinion or public forum  or by logging complaint with member of parliament so that s/he can take up the matter to the relevant minister. But the control of administrative action referred to here is the one which is carried out public authorities by enumerable act of parliament. Statutory duties also play their part but it is a mirror one in comparison with powers.

This is because powers confer discretion whether to act or not to act or not to act and also in many cases what action to take. On the other hand duties are obligatory and allow no option. (no discretion on this point). It is the element of discretion which raises the most numerous and difficult problems in the law. (Discretion is problematic). When a question arises as to whether a public authority is acting lawfully or unlawfully, the nature and extent of its power or duty has to be found by seeking the intention of the parliament express or implied in the relevant act. 

The expression administrative act, comprises three different context, namely:

i. Quasi legislative

ii. Quasi judicial

iii. Purely administrative.

QUASI LEGISLATIVE ACT:-

Done by the administration and consist of making rules, regulations, bylaws etc.

QUASI JUDICIAL ACT:-

Requires that, a public body has to adopt a judicial approach to a question to be decided.

PURELY ADMINISTRATIVE FUNCTION:-

Refers to those functions of administrative authorities which are neither legislative nor adjudicative in character,I.e. issuing of rules or directions having no force of law to subordinate administrative authorities. Much as statutory power will be construed as authorizing everything which can fairly be regarded as incidental or consequential to the power itself. Administrative bodies have always exceeded what may be reasonably incidental or consequential in the exercise of their powers. Sometimes they have sought refuge in claiming that, their act is purely administrative and hence outside the power of judicial review of the court.

On the other hand however, the courts have been jealously guarding their role of being custodian of the constitution and rights of the citizens enshrined therein. The view of the court has been that, only the most express words can felter or prevents the otherwise inherent power of the court in inquiring into the legality of an administrative actionbe it legislative, quasi-judicial or the so called purely administrative act.

JUDICIAL CONTROL OF THE ADMINISTRATIVE ACTIONS:-

The law regarding judicial control of administrative action is derived from the common law principle, that the High Court has power to review wrongful administrative acts by declaring them illegal, by doing so the court do not look on the merits of the administrative act. Because doing so will be tantamount/equivalent to exercising appellate powers on issues which may  not be subject to appeal. Essentially the courts would be enquiring on the question of jurisdiction either lack of or default of jurisdiction.

Griffith and street in their book principles of administrative law, the book of 1963 pg 219 defines jurisdiction as follows: “properly defined, jurisdiction is the marking off, of the area of power.  Something ascertainable at the outset of a process, the conditions on which the right of a body to act depends”. Just like in administrative legislation (S.L), the courts have also evolved various devices, means in control of administrative action.

EXCESSIVE OF POWER:-

There are cases where the court will declare that, the act of an administrative body or tribunal is simply in excess of the powers conferred to it by the law i.e. the authority has simply done the wrong thing and hence it will declare it void.

Sheikh Brothers LTD vs. Members of controls hotel authority [1949] 23 (2) KLR pg.1.by the regulation made in 1948, the defense (control of hotels). Regulations, the hotels authority was empowered to fix a percent of accommodations which should be available to monthly residence as may be considered reasonable and to vary in its discretion the percentage that has been fixed. The Hotels authority was also empowered to entertain complaints by hotel residents as to the management of the hotels and to investigate and adjudicate upon such complaints.

Some residency  of Nairobi Salisbury Hotel complained of its management. The hotel authority thereafter fixed the percentage of accommodation at 100% for monthly residence instead of the previous figure of 85%. The Sheikh Brothers Ltd (the owners of the hotel) sought to set aside the decision by way of certiorari (quash of decision) of fixing the percentage of 100% four monthly residence instead of the previous figure of 85%. It was held that: the control of Hotel Authority has clearly exceeded its power. The wording of the regulation in allowing that the proportion of accommodation be fixed required that some comparative relation as may be considered reasonable must be so maintained between the accommodation fixed for monthly resident and other residents. That by fixing the percentage of 100% the hotel authority deals away with the element of proportion.

FAILURE OF EXERCISE OF JURISDICTION:-

Where the law provides for discretion, on a public body to do or not to do a certain act, it is expected that such discretion will be exercised by the public body upon which such “discretion” has been conferred. But were such a public body adopts the policy under the influence or direction of some other authority, it will be deemed that, the public authority/ body exercising the power has abdicated or surrender its power to the other authority.if the direction or order is given under the statute such as the transfer and delegation of powers act, then the said direction or order will be in order. But were an independent authority such as licensing authority obeying the direction of a minister, whereas the relevant law prescribes for the exercise of discretion by itself acting at the dictation of the minister meaning that it is no longer exercising its own discretion as the legislature had intended that should be: this amount to delegation in the form of surrender or abdication of power i.e. your omitting to do your duty and give that power to another person to do it on your behalf.

Must-read:-   Odendaal vs. Gray (1960) E.A 263:-

ABUSE OF DISCRETIONARY POWER:-

Were a statute allows an authority to act in its discretion, it doesn’t imply that the powers given are limitless. In spite of the generality of such phrases there must be some limits to such power both in the interest of efficient administration and all who are affected by exercise of such discretionary powers. Abuse of discretionary powers occurs were an authority used its power ostensibly in the further less of statutory acts whereas the actual fact the objective is to achieve some object outside the purpose or object of the statute. 

RE BUKOBA GIMKANA CLUB VS. LIQUOR LICENSE ;( 1963) E.A pg 478.

The applicant was the holder of a liquor license for about 40 years, applied for removal of license under s.9 of the Liquor Licensing Ordinance to the Bukoba Township Liquor Licensing Board. Under the Act the board could refuse an application for the renewal of a license in its discretion, an application by BukobaGymkhana Club was refused on the ground that the constitution of the club was still largely discriminatory. On this alleged ground, the board pointed out rule 6 in the Club’s constitution which required application for membership to  be supported  by to current members of the club, but the board failed to file the counter affidavit to show that this clause was being used so an effect racial discrimination. In a letter to a board, the secretary of the club wrote, they had members of all three nationalities. The club thereafter imposed the writ of certiorari to invalidate the refuse and the writ of mandamus to order the board to re hear the application. On these facts the court held that; the board’s decision was based on considerations extraneous to the proper scope of exercise of the board’s power and hence this amounted to abuse of discretionary powers.

ERROR OF LAW ON THE FACE OF RECORD:-

It has been already stated that were an inferior tribunal acts within its jurisdiction but erroneously whether in fact or in law. It may be corrected by appeal, but its decision cannot be challenged. However were the decision of an inferior tribunal though it has acted within its jurisdiction is vitiated by:-

i. An error of law:

ii. Which is apparent on the face of record. That, such decision must be invalidated.

Anisminic ltd vs. Foreign Compensation Commission (1969) 2 AC. 147.

The Plaintiff an English Company owned property in Egypt worth 4.4 million pound which was confiscated in 1956 by Egyptian government, in 1957 the defendant sold the property TEDO an Egyptian organization for a mere five hundred thousand pound, by a treaty between Britain and Egypt, they had entered a compensation arrangement to the tune of 27.5 million pounds to be given by Egypt to Britain for the purpose of compensating the British nationals whose property had confiscated. A commission known as foreign compensation tribunal was set up to administer the fund and to compensate the British nationals who qualified for compensation under the foreign compensation (Egypt) determination and registration of claims order of 1962.the plaintiff applied to be compensated from the same commission of which refused the plaintiff application on the ground that he failed to establish his claim under the said order. The plaintiff sought the declaration that, the determination of the commission was nullity as it misconstrued the order. In the HC the application was granted. The Court of Appeal reversed the decision of the HC. Thereafter the plaintiff appealed to the House of Lords (HL). Lord Reid said, “ it has sometimes been said that it is only when were a tribunal acts without jurisdiction that its discretion is a nullity but in such cases where although tribunals jurisdiction to enter an enquiry and has done or failed to do something on the course of the inquiry and has done  or failed to do something on the course of the inquiry which is of such a nature that and its decision is a nullity…” it may have given its my decision in bad faith or made a decision which it had no power to make, or fail in the cause of an inquiry to comply with the requirement the natural justice or it may in perfectly misconstrued the provision giving its power to act so that it fail to deal with the question remitted to it and decided some questions which was not remitted to it, it may fail to take into account, or it may have based its decision on some matters which under provisions it has it up it had no right to make. I do not intend this list to be exhausted but if it decides a question remitted to it for decision without omitting any of these errors; it is much entitled to decide the matter wrongly as it had to decide it or rightly”.