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Court of AppealPartially AllowedCivil Appeal No. 152 of 1986

Onyango v General (Civil Appeal 152 of 1986) [1987] KECA 56 (KLR)

Court of Appeal
7 May 1987
JNJ.O. NyarangiHPH.G. PlattJGJ.M. Gachuhi
6,679 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that even prison officials must give inmates a fair hearing before taking away earned early release.

What this practically means

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Executive summary

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The appellant, a prisoner serving five years for an offence under Section 57 of the Penal Code, was credited with one-third remission on admission under Section 46(2) of the Prisons Act. By letter dated 17 February 1983, the Commissioner of Prisons, acting under Section 46(3A)(a), deprived him of all remission in the interests of 'reformation and rehabilitation', without informing him of the grounds or giving him any hearing. The High Court (Sheikh Amin J) dismissed the appellant's suit, holding it was not for the court to inquire into the workings of prisons. The Court of Appeal allowed the appeal. It held that although the Commissioner's act was administrative, rules of natural justice applied because it affected the appellant's rights and legitimate expectation of early release; there is a presumption that parliament does not authorise breaches of natural justice, and a decision-maker required to 'consider' must hear the affected person. The court set out minimum procedural steps: written notice of the alleged offence and particulars, an opportunity to be heard and to submit a written answer, and notification of the decision with a right to petition the Minister under Section 46(5). Because there was no evidence of what the Commissioner took into account, the decision could not be shown to be fair and was quashed as null and void. The High Court judgment was set aside, declarations substituted, and costs of both courts awarded to the appellant. Platt and Gachuhi JJA each gave concurring opinions agreeing with the result.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether rules of natural justice apply to the Commissioner of Prisons' decision under Section 46(3A)(a) of the Prisons Act to deprive a prisoner of remission
  2. 2.Whether the Commissioner's decision was null and void for breach of the rules of natural justice
  3. 3.Whether the decision was null and void as it was not based on any material facts

Key legal issues

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01

Whether natural justice applies to the Commissioner's decision under Section 46(3A)(a) of the Prisons Act

Holding

Yes. The decision is administrative but affects the appellant's rights and legitimate expectation of early release, so the Commissioner must hear the inmate on the reports before him before depriving him of remission.

Reasoning

The court applied the presumption that parliament does not authorise breaches of natural justice (Fairmount Investments) and followed Reg v Gaming Board ex p Benalim and R v Hull Prison Board of Visitors ex p St Germain. Because the deprivation imposes substantial loss of liberty and no statutory provision excludes judicial supervision, the Commissioner could not act fairly without giving the inmate an opportunity to be heard on the reports against him.

p. 3
02

Whether the Commissioner's decision was null and void for absence of material facts and non-disclosure of the basis of the decision

Holding

The decision could not stand. There was no evidence of what matters the Commissioner took into account, so it was impossible to determine whether he acted fairly or arbitrarily.

Reasoning

Against the Wednesbury unreasonableness standard invoked by the respondent, the court held that the absence of any record of the Commissioner's reasons meant it could not be said relevant matters were considered and irrelevant ones excluded. A decision-maker required to 'consider' must weigh the inmate's explanation against adverse reports; leaving the affected person guessing was improper and unfair, and the decision was quashed as null and void.

p. 4
03

What procedural protections the Commissioner must afford under Section 46(3A)(a)

Holding

The Commissioner must inform the inmate in writing of the alleged disciplinary offence and particulars, allow a written answer, and thereafter inform the inmate of his decision and the right to petition the Minister to restore forfeited remission under Section 46(5).

Reasoning

The court set out minimum fair-hearing steps: written notice in a language the inmate understands, an opportunity to be heard in person and to submit a written answer through the officer-in-charge, and communication of the decision showing the grounds and defence were considered. Depriving remission without hearing the prisoner would also conflict with Section 53 of the Act.

p. 5

Legal principles established

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  • Rules of natural justice apply even to administrative decisions affecting a person's rights or legitimate expectations, and a statutory decision-maker required to 'consider' a matter must hear the affected person before deciding.
  • There is a presumption in statutory interpretation that parliament does not authorise the exercise of powers in breach of the rules of natural justice unless expressly excluded.
  • A decision made in breach of natural justice is a nullity even if the same result would have been reached on a fair hearing.
  • Courts remain custodians of inmates' rights and will review internal prison disciplinary or administrative decisions unless jurisdiction is clearly excluded by statute.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court set aside
  3. 3.Declaration substituted that the decision of the Commissioner dated 17th February 1983 to deprive the appellant of his remission is null and void and is quashed
  4. 4.The Commissioner is required to follow rules of natural justice by giving the appellant a full opportunity of hearing what is alleged against him and presenting his own case, and in default the inmate is to be released unless unlawfully held
  5. 5.Costs of this appeal and of the High Court to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JN
majority

Wrote the judgment

HP
concurring

Wrote the judgment

Platt JA agreed in general and added a separate opinion analysing the distinction between 'forfeited' and 'deprived' remission and the content of the Commissioner's duty to 'consider', holding that the substance of the consideration must include the prisoner's side of the story, though not necessarily a physical hearing.

it is plain in my judgment, that a consideration of the prisoner's likely reformation or rehabilitation must include a consideration of his side of the story upon which the decision is to be madep. 8
JG
concurring

Wrote the judgment

Gachuhi JA agreed with Nyarangi JA's reasoning, adding that in the absence of any material facts the Commissioner's decision was arbitrary, ultra vires Section 46(3A)(a), and that denial of the protections of Sections 52 and 53 renders any decision affecting an inmate null and void ab initio.

Denial of this statutory provision to an inmate renders any decision made affecting the inmate null and void ab initio.p. 10
On appeal from
High Court of Kenya at Nairobi
High Court Civil Suit No. 1423 of 1986
Jurisdiction invoked
Appeal to the Court of Appeal from the High Court (statutory first appellate jurisdiction; no constitutional or specific statutory provision cited in the judgment)

Relief refused

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Claim for general damages for false imprisonment and declarations on entitlement to release under Rule 95(1) of the Prisons Rules

The court confined relief to the nullity of the Commissioner's decision; whether the appellant should still be deprived of remission and his release date were matters left to the Commissioner to decide after a fair hearing.

p. 10

Costs

Costs of this appeal and of the High Court to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Commissioner could not act fairly and be seen to have acted fairly without giving an inmate an opportunity to be heard before imposing loss of the liberty
p. 3application of natural justice to administrative decisions affecting liberty
There is a presumption in the interpretation of statutes that rules of natural justice will apply
p. 3statutory interpretation presumption
A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right.
p. 4effect of breach of natural justice
There is no provision in the Prisons Act which excludes the jurisdiction of Courts to concern themselves with the rights of inmates however circumscribed by a penal sentence.
p. 5judicial review of prison administrative decisions
In the upshot in my judgment the appeal should be allowed, the judgment of the High Court set aside and there will be substituted therefore a declaration that the decision of the Commissioner dated 17th February, 1983 to deprive the appellant of his remission is null and void and is quashed.
p. 6disposition
Costs of this appeal and of the High Court to the appellant.
p. 6final orders - costs

Issues in the judgment

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minor

The judgment prints Ridge v Baldwin with an erroneous year, '1984 AC 40', when the citation given is in the standard form of the 1964 decision.

minor

The trial judge's second ground is stated inconsistently: the appeal grounds record the judge as holding the decision 'was not based on any of the material facts' as a ground of appeal against him, while the judgment narrative elsewhere attributes the contrary finding to the judge.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Onyango v General (Civil Appeal 152 of 1986) [1987] KECA 56 (KLR)", Case Analysis (1987). Civil Appeal No. 152 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/56/eng@1987-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.