Administrative law is the body of law that governs the administration and regulation of government administrative agencies. Lawmakers create government agencies to carry out laws and administer the functions of government. These agencies create, implement and enforce regulations. All of the work that goes into these activities falls under the category of administrative law.Over the years, governmental administrative agencies have steadily grown in number and importance in Kenya.i. Administrative law is a branch of pulblic law which deals with the relationship between individuals and government.
Administrative law, though law is different from other branches of law as some times it goes beyond the law to examine administrative circulars, policy statements, memoranda and resolution.It deals with organisation and power of administrative and quasi administrative bodies with emphasis on the manner of exercise of the power.Administrative law is primarily concerned with official action.It relies greatly on the common law.It is cross-cutting and will arise wherever a person becomes a victim of arbitrary exercise of public power.
HISTORICAL DVLPT OF ADMINISTRATIVE LAW
Administrative law, currently practiced in Kenya has it's origin in England .In England it emerged in the second half of the 17th century . However a number of the principles like natural justice pre-date this time . Earlier in England justices of peace served as all purpose administrative authorities. They were supervised by judges who conveyed instructions from the queen and also acted upon malpractices.Tudor Monarch strengthened this system through the use of the provincial councils and privy council the in north and in Wales which was a drift towards decentralization of power. The the privy council exercised oversight with the aid of the star chamber which punished those who disobeyed the justices of peace and reprimanded the justices themselves. The star chamber was abolished in 1642, and hence destruction of the executive powers of the privy council. This lead to rise of new situations. The machinery of central political control was broken downand thus court of kings bench stepped in and this marked a new era of control by administrative organs and use of courts. The kings bench issued its writs of;
Mandamus
Certiorari
prohibition
together with ordinary damages to anyone who wished to dispute the legality of administrative acts of justices or other public authorities. The courts extended the application of the principle of ultra-vires and judicial preview. Later the same rules were applied to the administrative state and it began to emerge to regulate the central government. In kenya, the constitution now guarantees the right to fair administrative action as part of rights and fundamental freedoms under the bill of rights. Art 47 provides:
Every person has the right to administartive action that is expenditious, efficient, lawful, reasonable and procedurally fair.
If a right of fundamental freedom of a person has been or is likely to be adversely affected by administrative action the person has the right to be given written reasons for the action. .Parliament shall enact legislation to give effect to the rights in cross 1 and the legislation shall:
I.Review of admistrative action by a court of law or an independent tribunal
II.Promote efficient administration
In Kenya, the development of modern administrative law can be traced back to the advent of colonisation, Kenya was declared a British protectorate in 1895 and this was the start of deportation of British systems of governance including its systems of public administration.
Kenya’s central government is structured through the constitution with administrative and policy making powers being distributed to its three arms namely Executive, Legislature and Judiciary. However, the current structuring was as a result of enactment of tha 2010 constitution.
THE EXECUTIVE
It consists of the President, the Deputy President and the rest of Cabinet. The President is the Head of State and Government; he exercises the executive authority of the Republic with the assistance of the Deputy President and Cabinet Secretaries. He is the Commander-in-Chief of the Kenya Defence Forces and a symbol of national unity. The Deputy President is the principal assistant of the President, and shall deputise for the President in the execution of the President’s functions.
The Legislature
According to the new constitution, the Legislature is held responsible for advocating for the people’s interest in law making. In addition to that, it is vested in two houses - the national assembly and the senate. The adoption of the new constitution adds an interesting twist to law making. This is because the old constitution exclusively placed the law making process in the hands of parliament. The specific roles of the national assembly are:
Members of the national assembly are obligated to represent their constituents and all the special interests within their respective constituencies
Enactment of legislation for both county and national government
Approval or disapproval of revenue allocation presented by the senate, determining the national distribution across the counties.
Check the conduct of the executive and other state officers and if necessary initiate the process of removal of president, deputy president and other state officers.
Exercise oversight over state organs and approve the state of emergency and eclaration of war.
The Senate
The roles of the Kenya Senate under the new constitution are:
Debate and approve county bills
Determine the allocation of national revenue to be distributed according to the counties
Represent the interests of the counties at the national level
Consider and determine the resolution of impeachment of the president or his/her deputy
THE JUDICIARY
This is the body responsible for determining disputes and interpreting statutes. It is independent of both the Executive and the Legislature. The constitution provides for the establishment of the High Court as a superior court of record, having unlimited original jurisdiction in civil and criminal matters; and the Court of Appeal as superior court of record, having jurisdiction and powers in relation to appeals from the High Court or as may be conferred on it by law. It also provides for the appointment of the Chief Justice, and judges of the court of appeal and the High Court. The constitution also establishes other courts subordinate to the High Court and the Judicial Service Commission, vested with the power to appoint and to exercise disciplinary control and the removal of judicial officers.
ENFORCEMENT OF ADMINISTRATIVE LAW
There are 3 different types of remedies:
Private law remedies. Eg, damages, injunctions etc
Public law remedies also known as prerogatove remedies. Eg, certiorari, prohibition and mandamus.
Special statutory remedies
They could be prayed for separately, jointly or in an alternating manner. The choice of remedy may determine the procedure for enforcing that remedy. Art 22(1) of the COK grants everybody the right to institute court prceedings to vindicate a fundamental right. Art 23(3) provides that in any proceedings brought under Art 22, the court may provide remedies which include:
A declaration of rights
An injunction
A conseravatory order
A declaration of invalidity of any law.
An order for compensation.
An order for judicial review.
PUBLIC LAW REMEDIES
They are discretionary in nature and thats why they are called prerogative. They include an order for certiorari, prohibition and mandamus. a)
Certiorari
The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an Lower Court.
It seeks to quash a decision or action that has already been made. It brings to the high court the decision of an inferior tribunal or authority in order that it may be investigated and possibly quashed. It puts inferior tribunals within the proper confines of their limited jurisdiction. Certiorari seeks to address something that has happened already. b)
Prohibition
The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any Lower Court.
Even though both the above ( Certiorari and Prohibition) lie against legal bodies, they differ in the sense, as to when you can knock the doors of a Court - while the Certiorari can be resorted to only after the culmination of the judicial process, Prohibition can be pleaded during the pendency of such a legal action.
Mandamus
Is compelling in nature and is employed when a person wants to compel a government authority to do something required by the law. Public law remedies are obtained through the proceess of judicial review provided for in order 53 of the civil procedure rules. Application for judicial review is done at 2 stages:
Is compelling in nature and is employed when a person wants to compel a government authority to do something required by the law. Public law remedies are obtained through the proceess of judicial review provided for in order 53 of the civil procedure rules. Application for judicial review is done at 2 stages:
Preliminary stage- to obtain the leave of court to seek the prerogative orders. Application for leave is made ex-parte by way of chamber summons. The application must be accompanied by a statement setting out the name and the description of the applicannt the relief sought and the grounds supporting it. Application for leave may operate as an order of stay if the court directs.
Filing of the main application- it is filed by way of a notice of motion and must be done 21 days after the grant of leave
jerop5614 answered the question on December 22, 2018 at 10:09