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Court of AppealPartially AllowedAppeal and cross-appeal from Judicial Review proceedings (Nairobi High Court, JR Notice of Motion dated 6th June, 2014)· [2019] KECA 322 (KLR)

Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others (Civil Appeal 141 of 2015) [2019] KECA 322 (KLR)

Court of Appeal of Kenya
27 September 2019
RNR.N. NambuyePKP.O. KiageAMA.K. Murgor
6,419 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that Ombudsman recommendations are enforceable in court and can win mandamus, damages, and costs.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal from the judgment of the High Court at Nairobi (Korir, J.) dated 26th February 2015, which had dismissed judicial review proceedings brought to compel the Vision 2030 Delivery Board to implement the recommendations of the Commission on Administrative Justice in favour of the 3rd respondent, a former Director (Enablers and Macro) whose one-year contract renewal by the Minister the Board refused to effect. The Commission and the 3rd respondent appealed and cross-appealed. The Court framed four issues: the Commission's mandate, the Board's status as a public entity, whether the Commission's recommendations implicated a public duty enforceable by mandamus, and whether the Judge exercised his discretion judiciously. It affirmed that the Commission had mandate and that the Board was a public entity whose actions were amenable to judicial review. It held, however, that the Judge erred in treating Article 254 as confining enforcement of the Commission's recommendations to reporting to the National Assembly, and in restricting judicial review to the traditional three I's, failing to address the interplay of administrative and constitutional law and the 3rd respondent's right to fair administrative action under Article 47. Gross abuse of discretion, manifest injustice and culpable excess of authority having been demonstrated, and no other adequate remedy existing, the Court allowed both the appeal and cross-appeal, granted mandamus compelling compliance with the Commission's recommendations, declared the 3rd respondent's right to fair administrative action infringed, awarded him Kshs. 700,000 in constitutional damages with interest at court rates from the High Court judgment date, and awarded both the appellant and 3rd respondent costs of the appeal, cross-appeal and the proceedings below.

Key legal issues

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01

Whether the Commission on Administrative Justice had mandate to entertain the complaint

Holding

The Court agreed with the trial Judge that the appellant had mandate under Article 59 and the CAJA to entertain and make recommendations on the 3rd respondent's complaint.

Reasoning

Article 59(1) establishes the Commission; Article 59(2) donates powers including investigation and securing redress for complaints of unfair treatment; Article 252 donates the right to receive and redress complaints by persons entitled to institute court proceedings under Article 22(1). Section 8 of the CAJA entrenches the statutory mandate in terms similar to Article 59(1), while sections 26, 41, 42 and 44 are capacitation provisions.

p. 5
02

Whether the 1st respondent is a public entity amenable to judicial review

Holding

The 1st respondent is a public entity created to oversee implementation of a public function; its actions and those of its officers were amenable to judicial review.

Reasoning

The 1st respondent was set up by Gazette Notice No. 1386 of 17th February, 2009 to make policies, advise and provide leadership, oversight, guidance and policy direction in implementation of Vision 2030, a government initiative. Officers hired to discharge that public mandate acted in discharge of a public function, bringing their actions within judicial review.

p. 5
03

Whether recommendations of the Commission are enforceable only by report to the National Assembly

Holding

Article 254 concerns annual accountability reports, not every investigative report; Commission recommendations are amenable to court enforcement and the trial Judge erred in holding otherwise.

Reasoning

The Court construed Articles 59, 249, 252 and 254 with sections 2, 8, 26, 41, 42 and 44 of the CAJA and held Article 254 relates to accountability reports for a given year. Nothing in the Constitution or CAJA confines a beneficiary of the Commission's recommendations to reporting breach to the National Assembly, nor do such recommendations lack force amenable to court enforcement.

p. 7
04

Whether the Judge exercised his discretion judiciously in dismissing the JR proceedings

Holding

He did not; he took a restrictive traditional view of judicial review (the three I's), overlooked Article 47 fair administrative action and the interplay of administrative and constitutional law, so the appeal and cross-appeal were allowed and mandamus granted.

Reasoning

The Court applied the United India Insurance test for interference with discretion and found the Judge misdirected himself. Post-2010 judicial review extends beyond illegality, irrationality and impropriety to relief for rights violations. The 3rd respondent demonstrated gross abuse of discretion, manifest injustice and denial of a settled right by the 1st respondent's refusal to implement the Minister's decision and the Commission's recommendations, with no other adequate remedy.

p. 8
05

Quantum of constitutional damages for infringement of the right to fair administrative action

Holding

The 3rd respondent was awarded Kshs. 700,000 as adequate compensation, taking into account the compensatory relief already accruing under prayer (a).

Reasoning

The purpose of a constitutional remedy is to vindicate rights, not merely to compensate. Comparables from Lucas Omoto Wamari, Jennifer Muthoni Njoroge and Benedict Munene Kariuki involved awards of Kshs. 1.5 to 2 million for torture, cruel and inhuman treatment and unlawful detention over 7-14 days; those aggravating factors do not arise here, so a lower award was appropriate.

p. 11

Legal principles established

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  • Recommendations of the Commission on Administrative Justice are not confined to an accountability report to the National Assembly; they are amenable to enforcement by a court of law.
  • A public officer or body owed an appellant-commission direction to implement a settled right may be compelled where gross abuse of discretion, manifest injustice or culpable excess of authority equivalent to denial of a settled right is demonstrated and no other plain, speedy, adequate and efficacious remedy exists.
  • Since the promulgation of the 2010 Constitution, judicial review is available as a remedy for violation of rights and fundamental freedoms, and the court must appreciate the interplay between administrative law and constitutional law.

Court orders

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  1. 1.Both the appeal and cross appeal are allowed.
  2. 2.Prayer (a) of the JR proceedings for an order of mandamus is granted as prayed.
  3. 3.Under prayer (b) which is also granted, a declaration is issued that the 3rd respondent's right to fair administrative action was infringed.
  4. 4.The 3rd respondent is entitled to Kshs. 700,000 as compensation for the infringement of his constitutional right to fair administrative action.
  5. 5.Resulting sums will carry interest at court rates from the date of Judgment in the High Court.
  6. 6.Both the appellant and the 3rd respondent as the cross-appellant will have costs of the appeal and cross appeal and the JR proceedings before the High Court.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 8, 22, 23, 24, 26, 27, 28, 35, 41, 42, 47, 50, 59, 249, 252, 254
  • Commission on Administrative Justice Actsections 2, 8, 26, 29, 41, 42, 44
  • Law Reform Actsections 8 & 9
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (26)

  • Speaker of the Senate & another versus Hon. Attorney General & 4 others
    [2013] eKLR
  • Paul Musili Wambua versus Attorney General & 2 others
    [2015] eKLR
  • In Re matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • Mbogo & another versus Shah
    [1968] EA 93
  • Kenya National Examination Council versus Republic ex-parte Geofrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • National Social Security Fund Board Trustees & 2 others versus Central Organization of Trade Union (C)
    [2015] eKLR
  • Speaker of the National Assembly versus the Hon. James Njenga Karume
    [2008] 1 KLR 425
  • Kakuta Maimai Hamisi versus Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • Selle & Another versus Associated Motor Boat Company & others
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A 270
  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • Commissioner of Lands versus Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers versus Republic
    Civil Appeal No. 265 of 1997 (UR)
  • Zakayo Michubu Kibwange versus Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Prabhulal Gulabuland Shah versus Attorney General & Erastus Gathoni Mlano
    Civil Appeal No. 24 of (1985) (UR)
  • Child Welfare Society of Kenya versus Republic and 2 others, Exparte Child in Family Forces Kenya
    [2017] eKLR
  • United India Insurance Company Limited versus East African Underwriters Kenya Ltd
    [1985] KLR 898
  • Ransa Company Ltd versus Mania Francesco & 2 others
    [2015] eKLR
  • Bahajj Holdings Ltd versus Abdo Mohammed Bahajj & Company Ltd & another
    Civil Application No. Nai 97 of 1998
  • Re. National Hospital Insurance Fund Act and Central Organization of Trade Union Kenya
    Nairobi HCMA No. 1747 of 2004 [2006] 1 EA 47
  • Ericson Kenya Limited versus Attorney General & 3 others
    [2014] eKLR
  • Gitobu Imanyara & 2 others versus Attorney General
    [2016] eKLR
  • Lucas Omoto Wamari & 2 others versus Attorney General & Another
    [2017] eKLR
  • Jennifer Muthoni Njoroge and others versus the Attorney General
    [2012] eKLR
  • Benedict Munene Kariuki & 13 others versus the Attorney General
    High Court Petition No. 722 of 2009
  • Kenya Agricultural Research Institute versus Peter Wambugu Kariuki & others
    Nakuru Civil Appeal No. 315 of 2015
On appeal from
High Court of Kenya at Nairobi
JR Notice of Motion dated 6th June, 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a) cited); the JR proceedings below were premised on sections 8 & 9 of the Law Reform Act and Articles 2, 8, 22, 23, 26, 27, 28, 35, 41, 42, 47, 50 & 59 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others (Civil Appeal 141 of 2015) [2019] KECA 322 (KLR)", Case Analysis (2019). Appeal and cross-appeal from Judicial Review proceedings (Nairobi High Court, JR Notice of Motion dated 6th June, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/322/eng@2019-09-27

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