INTRODUCTION The first question that is likely to emerge when judicial review challenge is susce ti!

le to review"# This course work is aimed at discussing what u!lic !odies are for ur oses of judicial review and why only such !odies are amena!le to judicial review" D$%INITION O% &UDICI'( R$)I$* The definition of judicial review in the Civil +rocedure Rule governing $nglish court roceedings ,C+R- is said to refer to .a decision/ action or failure to act in relation to the e0ercise of a u!lic function" It is significant that the definition focuses on the nature of the function !eing erformed rather than the !ody erforming it" 1owever it is said that in reality the category of !odies whose functions may !e challenged is constantly evolving"2 *1'T +U3(IC 3ODI$4 'R$ %OR +UR+O4$4 O% &UDICI'( R$)I$* The courts have ado ted a fle0i!le a roach to determining whether a !ody is su!ject to judicial review" 3ut there is no single test"5 Thus the courts take into account various factors in determining whether a erson or a !ody is amena!le to review" &udicial review is only availa!le against a u!lic !ody in a u!lic law matter" In essence/ two requirements need to !e satisfied" %irst/ the !ody under challenge must !e a u!lic !ody whose activities can !e controlled !y judicial review"6 4econdly/ the su!ject matter of the challenge must involve claims !ased on u!lic law rinci les not the enforcement of rivate law rights"7 1owever/ in !etween these two generalities/ other factors such as the nature of the function the u!lic !ody erforms/ the e0tent to which there is any statutory recognition or under inning of the !ody or the function in question and the e0tent to which the !ody has roceedings are under

consideration is whether the arty which has done something which may give rise to a

1 2

www"publiclawproject.org.uk/downloads/GuideToJRProc.pdf I!id 3 I!id 4 1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 5 4sekaana 8usa Public Law in East Africa ,2::=- (aw'frica +u!lishing/ Nairo!i/ age 5>

interwoven into a system of governmental regulation/ may indicate that the !ody erforms u!lic functions and therefore su!ject to judicial review"? The traditional test for determining whether a !ody of ersons is su!ject to judicial review is the source of ower" &udicial review is concerned with the activities of !odies deriving their authority from statute" If the duty is a u!lic duty then the !ody in question will !e su!ject to u!lic law and judicial review as a u!lic law remedy will only !e invoked if the erson challenging was erforming a u!lic duty"> Thus in the case of the Ludwig Sondashi v Godfrey Miyanda@ ,sued in his ca acity as <eneral 4ecretary of 88D- the a lication/ u on !eing fired from the 8ovement for 8ulti arty Democracy sought an order for judicial review of the decision !y the arty" The 1igh Court held that the 8ovement for 8ulti arty Democracy !eing a clu! whose activities were rivate could not !e a su!ject of u!lic law such as an order for judicial review under administrative law !ut rivate law and the action ought to !e commenced !y general writ" 4imilarly in the case of Nkumbula Vs Attorney General=/ the court held that the United National Inde endence +arty was a clu!/ therefore a su!ject of rivate law" One of the characteristics which have !een considered relevant to whether an act or function can !e reviewed is the issue of statutory under inning"#: 4tatutory under inning is where the government has encouraged the activities of an organisation !y roviding under inning for its work/ or the !ody was esta!lished under the authority of the government/ this can constitute grounds for a !ody to !e considered to !e e0ercising a u!lic function" 1owever/ the fact that a !ody is recognised in legislation is not sufficient to !ring its activities within the remit of u!lic functions"## 4tatutory owers may !e conferred or duties im osed/ on !odies/ which are/ in origin nonA statutory/ rivate !odies" In relation to the e0ercise of its statutory owers/ judicial review will !e availa!le" Universities and schools o!tain charters or licences from government thus in the case of Elizabeth Wainaina and others v he !oard of Governors of "angani Girls
6

1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 7 1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 8 (1992 1994) ZR 115 9 (1987) 2QB 815 10 www.publiclawproject.org.uk/downloads/GuideToJRProc.pdf 11 I!id

#igh S$hool#2 where the 1igh Court quashed the decision of the 3oard of <overnors of +angani <irlsB 4chool indefinitely sus ending the three a licants" The court found that the school was not a rivate clu! and therefore the court had jurisdiction to entertain the a lication where it was alleged !reach of natural justice and the $ducation 'ct"#5 In su!sequent cases the 1igh Court has held that it has jurisdiction to entertain decisions of administrative !odies" In the case of Mi$hael %mole %haro and others v he &oun$il for Legal Edu$ation#6/ the a licants were holders of law degrees from universities in India" They a lied to !e admitted to the Cenya 4chool of (aw !ut the res ondent institution refused to admit them to the school" The a licants went to court seeking orders that the res ondentBs decision denying them admission to the Cenya 4chool of (aw !e quashed and that the res ondent had failed to give them a hearing !efore denying them admission" The Court/ while conceding that the res ondent had !een in !reach of the rules of natural justice/ nevertheless declined to order their admission/ !ut directed that the res ondents reconsider their a lications" The a licants in the Oharo case a!ove relied heavily on an earlier case of 'ita !iwott v he &oun$il of Legal Edu$ation#7 where the court was called u on to decide the a licantBs fate under similar circumstances" The a licantBs a lication to !e admitted to the Cenya 4chool of (aw was rejected on the ground that the Council did not a rove her two year degree at the University of $din!urgh under 4ection #5,#- of the 'dvocates 'ct" In finding for the a licant/ the 1igh Court ruled that she had not !een given a hearing !efore her a lication was rejected and thus there was a !reach of the rules of natural justice" The decision of the Council was quashed and the rinci al of the Cenya 4chool of (aw ordered to admit her into the school" 'n additional test for determining whether a articular !ody is susce ti!le to judicial review is !y looking into the nature of its function" 3odies erforming u!lic duties or e0ercising ower that could !e characteriDed as E u!licB may !e su!ject to judicial review even though the owers are not statutory"#?
12 13

8iscellaneous civil case num!er @#@ of #==2 1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 14 8iscellaneous a lication num!er =#> of #==? 15 Miscellaneous civil case nu !e" 1122 o# 1994 16 1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals

Two a roaches have !een laid down to understanding the definition of E u!licB in res ect of u!lic law and nature of function" %irst/ there is the e0tent to which the !ody o erates under the authority of government or was esta!lished !y the government/ or !y some other recogniDed u!lic authority"#> 4econdly/ there is the e0tent to which a articular function is erformed against a !ackground of statutory owers even though there is no s ecific statutory authority for the ower/ which is the su!ject of review"#@ 1owever/ it has !een argued that not every act of a statutory !ody necessarily involves an e0ercise of statutory ower" 4tatute may im ose a duty on a u!lic !ody only/ !ut that duty may still create rivate rights in favour of individuals/ enforcea!le !y way of ordinary claim as well as im osing u!lic law o!ligations enforcea!le !y way of judicial review" The fact that one of the arties to the dis ute ha ens to !e a u!lic authority is incidental to the nature of the dis ute" It is ossi!le for questions of u!lic law and rivate law to arise in relation to one dis uteF it is also ossi!le for situations to arise where the courts will su erim ose on a rivate law question an o!ligation to o!serve rinci les derived from u!lic law" There is no universal test which will !e a lica!le to all circumstances which will indicate clearly when judicial review is or is not availa!le"#= Thus it is not every action ,or omission- of a u!lic authority that can !e challenged !y judicial review" It is not availa!le to enforce urely rivate rights against u!lic !odies/ for e0am le em loyment of contractual rights as the act in question must !e Gin relation to the e0ercise of a u!lic functionH" In the case of (akhem &onstru$tion )*enya+ Ltd v "ermanent Se$retary, Ministry of 'oads and "ubli$ Works and another2:/ the court stated that if arties to a contract want to have the rocess of judicial review a lica!le to their contract/ there is nothing to sto them from e0 ressly roviding in the written contract" Therefore/ u!lic element gauge equally e0tends to rivate !odies/ clu!s/ and societies that erform functions which are im ortant to the u!lic" The justification for this is remised on the fact that the individual erson or mem!ers of the u!lic who deal with these !odies

17 18

$u%"a no&e 3 a& %a'e 40 (!i) 19 1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 20 *ivil a%%eal nu !e" 244 o# 2006

legitimately e0 ect that the rules of good administration will a ly" 2# Thus in the case of "atel and others v -han.i and others22/ the Court of ' eal o!served that the courts will entertain suits !y mem!ers of societies or clu!s for im ro er e0 ulsion or violation of the rinci les of natural justice/ !ased on the mem!ersB rights in ro erty/ !ut that the courts should !e slow to interfere in the running of clu! affairs/ the remedy !eing in the hands of the mem!ers" In the case of ' v !isho/ Silas 0ego and the 'egistrar of So$ieties e1 /arte -avid Mulei Mbuvi and others25/ the a licants were granted leave to a ly for rohi!ition to sto the Registrar of 4ocieties from registering a new constitution introduced !y the church administration without rior consultations with church mem!ers" It was held that rovided a matter is justifia!le and constitutes a cause of action/ the court can e0ercise its judicial review jurisdiction es ecially where there is a !reach of the rules of natural justice/ or where there is an issue concerning the ro rietary and or contractual rights of individuals" 'lthough reasona!le efforts should !e made to u hold the rivate li!erty of administrative officials/ more so in using the owers they osses as rivate individuals/ the e0ercise of rivate owers may nevertheless !e su!ject to judicial review where there is legitimate e0 ectation on the art of those affected that the ower will !e e0ercised fairly/ on reasona!le grounds and relevant considerations" In the case of -avid %nyango %loo v A2G26, David was convicted and sentenced to serve a five year im risonment sentence and was entitled under section 6?,2- of the +risons 'ct to !e credited with full amount of remission to which he would !e entitled at the end of sentence if he loses no remission of sentence" One year into his sentence/ the Commissioner of +risons wrote to the Officer in Charge of the +rison where David was im risoned informing the InA Charge that he ,the Commissioner- considered that it was in the interest of reformation and reha!ilitation of David that he !e de rived of remission" David challenged the legality of the CommissionerBs decision and contended that it was ar!itrary/ in !reach of the rules of natural justice/ ultra vires section 6? of the +risons 'ct" The Court of ' eal ruled that the

21

1on" 8r" &ustice 'lnashir )isram ,4ydney 9 2:#:8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals 22 +1975, -. 301 23 Miscellaneous a%%lica&ion /o. 155 o# 2006 24 *ivil .%%eal /o. 152 o# 1986 (0")

CommissionerBs act in de riving David of remission was ultra vires/ illegal/ null and void/ and roceeded to quash it" %urther in the case of ' v &hief 3usti$e of *enya and others e1 /arte Lady 3usti$e 'oselyn Naliaka Nambuye27/ the question arose as to whether judicial review can !e used to challenge constitutional owers" The a licant had challenged the owers of the +resident and the Chief &ustice in res ect of section ?2 of the Constitution" The court held in the negative/ er Nyamu &; .the e0ercise of residential owers under the Constitution cannot !e challenged !y way of &udicial Review at all !ecause &udicial Review jurisdiction is derived from an 'ct of +arliament and is not entrenched in the Constitution unlike India and the United 4tates where &udicial Review jurisdiction has !een s ecifically conferred under the res ective constitutions" In Cenya the jurisdiction is statutory"I It is also necessary in deciding whether a !ody is u!lic or rivate to a ly the test set out in the Datafin case" In ' v &ity "anel on akeovers and Mergers e1 /arte -atafin Ltd 45 the court said that usually the source of the ower e0ercised was decisive" If the source was statute or rerogative it was likely to !e a u!lic !ody" 1owever sometimes the court would look !eyond the source and e0amine the nature of the ower to see if u!lic law functions or functions with u!lic law consequences were !eing e0ercised" In this case the Takeover +anel ,which had no statutory or rerogative !asis- was a u!lic !ody" The test has !ecome im ortant as more rivate !odies take over former u!lic functions as in the case of ' )!eer+ v #am/shire 6armers Markets Ltd 47 , rivate com any took over running of farmersB markets from County Council-" It was held after referring to Datafin that there was a sufficient u!lic element"

%urther in another case of ' )Mullins+ v A//eal !oard of the 3o$key &lub 8 Another 49 / the 1igh Court had cause to reconsider whether the &ockey Clu! was amena!le to judicial review" In the case of ' v -is$i/linary &ommittee of the 3o$key &lub, e1 /arte Aga *han4: the court had reviously decided that it was not/ !ut it was su!mitted that the decision should !e distinguished/ rimarily in light of the juris rudence as to the meaning of
25
26 27 28 29

Miscellaneous civil case nu !e" 764 o# 2004 #=@> C ' 2::6 C ' J2::7K $*C1C 2#=> J#==5K # *(R =:= ,C'-

. u!lic !odyI under the rovisions of the 1uman Rights 'ct ,1R'- #==@" In a ro!ust decision/ 4tanley 3urnton & held that the &ockey Clu! was not amena!le to judicial review" Im ortantly/ he found that !oth Civil +rocedure Rule ,C+R- +art 76 ,governing judicial review roceedings- and s"? of the 1R' #==@ shared the conte0t of u!lic law and a lied to functions of a u!lic nature" 1e found that the test to !e a lied under C+R +art 76 was su!stantially the same as that a lied !y the court in Aga *han/ namely whether the functions of the clu! were governmental" 1e therefore found that the decision in the earlier case remained authority for the ro osition that the clu! was not a u!lic authority for the ur oses of s"? and that the articular function e0ercised in that case/ which was identical to the function e0ercised in the instant case/ was not a function of a u!lic nature" 1e therefore held that 8r 8ullins could only challenge the decision of the ' law/ not u!lic law roceedings" *1L ON(L +U3(IC 3ODI$4 'R$ '8$N'3($ TO &UDICI'( R$)I$* The reason why only u!lic !odies are amena!le to judicial review is that judicial review is the rocedure used !y the courts to su ervise the e0ercise of u!lic ower and it is a means !y which im ro er e0ercise of such ower can !e remedied and it is therefore an im ortant com onent of good 8 u!lic administration" 5: The court in 'e/ubli$ v "ermanent Se$retary;Se$retary to the &abinet and #ead %f "ubli$ Servi$e %ffi$e of he "resident wo %thers e1</arte Stanley *amanga Nganga=> took the view that the ur ose of judicial review is to check that u!lic !odies do not e0ceed their jurisdiction and carry out their duties in a manner that is detrimental to the u!lic at large" Therefore judicial review rovides one of legal controls on administrative actions" Thus it is one of the mechanisms em loyed in administrative law to hold u!lic !odies accounta!le" &udicial review is there for only concerned with the control of ower of u!lic !odies" These u!lic !odies can !e ministers or u!lic cor orations" &udicial review is not concerned with rivate !odies" eal 3oard !y way of rivate

30

.n)"ew 1e $ueu" an) Mau"ice $un2in Public Law 1 (e)) (1997) 1on' an3 1on)on3 %a'e 466 31 +2006, e41R

&udge 8usonda52 asserts that the reason why u!lic law dis utes have !een su!jected to the Order 75 rocedure is that s ecific rotections have !een incor orated into this order/ for !enefit of u!lic authorities" It is trite that government is a rivileged litigant"

CONC(U4ION It has !een seen that !efore a !ody can !e considered amena!le to judicial review it has to !e a u!lic !ody and for any clu!/ !ody or organisation to !e considered as a u!lic !ody its activities must !e Gwoven into a system of governmental control/ or into the fa!ric of u!lic regulation/ in other words there needs to !e some form of state under inning of the ower concerned/ or if not/ then at least a close ro0imity with another recognised u!lic !ody" Thus a u!lic !ody for ur oses of judicial review includes among othersF a !ody erforming u!lic functions/ a !ody whose owers are derived from statute/ a !ody created !y an act of arliament" It has also !een seen that only u!lic !odies are amena!le to judicial review !ecause judicial review is the rocedure !y which the decision/ action or failure to act of a u!lic !ody such as a government de artment or a local authority or other !ody e0ercising a u!lic law function can !e challenged"

'E6E'EN&ES (e 4ueur/ '"/M 4unkin/ 8" ,#==>-" Public Law # ,#st ed-" (ondonF (ongman 8usonda/ +" ,2::?-" Administrati e law !!" Nam!ian O en University 8odule" Un u!lished
32

Muson)a.3 5.(2006). .) inis&"a&ive law ((. Za !ian 6%en 0nive"si&7 Mo)ule. 0n%u!lis8e). 5.3

8usa/ 4" ,2::=- Public Law in East Africa" Nairo!iF (aw'frica +u!lishing )isram/ '"&" ,2:#:F 8arch-" #:th Congress of the International 'ssociation of 4u reme 'dministrative &urisdictions; Review of 'dministrative Decisions of <overnment !y 'dministrative Courts and Tri!unals" 4ydney WE! S? ES www"publiclawproject.org.uk/downloads/GuideToJRProc.pdf &ASES &? E(udwig 4ondashi v <odfrey 8iyanda ,#==2 9 #==6- NR ##7 Nkum!ula )s 'ttorney <eneral ,#=@>- 2O3 @#7 $liDa!eth *ainaina and others v The 3oard of <overnors of +angani <irls 1igh 4chool 8iscellaneous a lication num!er =#> of #==? 8ichael Omole Oharo and others v The Council for (egal $ducation 8iscellaneous civil case num!er ##22 of #==6 Rita 3iwott v The Council of (egal $ducation 8iscellaneous civil case num!er @#@ of #==2 Nakhem Construction ,Cenya- (td v +ermanent 4ecretary/ 8inistry of Roads and +u!lic *orks and another Civil a eal num!er 266 of 2::? +atel and others v Dhanji and others J#=>7K $' 5:# R v 3isho 4ilas Lego and the Registrar of 4ocieties e0 arte David 8ulei 8!uvi and others 8iscellaneous a lication No" #77 of 2::? David Onyango Oloo v '"< Civil ' eal No" #72 of #=@? ,UrR v Chief &ustice of Cenya and others e0 arte (ady &ustice Roselyn Naliaka Nam!uye 8iscellaneous civil case num!er >?6 of 2::6 R v City +anel on Takeovers and 8ergers e0 arte Datafin (td J#=@>K C ' R ,3eer- v 1am shire %armers 8arkets (td J2::6K C ' R ,8ullins- v ' eal 3oard of the &ockey Clu! M 'norther J2::7K $*C1C 2#=>
9

R v Disci linary Committee of the &ockey Clu!/ e0 arte 'ga Chan J#==5K # *(R =:= ,C'Re u!lic v +ermanent 4ecretaryP4ecretary to the Ca!inet and 1ead Of +u!lic 4ervice Office of The +resident M Two Others e0A arte 4tanley Camanga Nganga J2::?K eC(R

10