Nayan Savla v Commission On Administrative Justice

2. 2. Declaration Regarding Rule 6 FAAA Rules that the six-week limitation in Rule 6(1) of the Fair Administrative Action Rules, 2024, shall not operate to bar or limit the Applicant’s rights in this matter—where proven ongoing, concealed, or unredressed administrative violations have occurred and the Respondent has been in persistent default—consistent with Articles 22, 23, 24, 47, 48, and 50 of the Constitution. 3. Barring of Further Respondent Evidence that the Respondent is barred from filing any further affidavit, evidence, or submissions save with express leave of the Court and only on sufficient cause being shown. 4. Staged Damages and Reservation that the Applicant is entitled to vindicatory, aggravated, exemplary, and special damages for each proven breach; that special damages include the quantifiable value of lost time (in preparing pleadings, service, filings, correspondence, attendance, and all efforts necessitated by Respondent’s default), as well as documented out-of-pocket and opportunity costs—with quantification to be particularized following declarations, completion of discovery, and filing of the psychologist’s report within one month or further as the Court may allow. 5. Structural and Apology Relief a. That the Respondent be ordered, within one (1) months or such period as the Court may direct, to formulate and file a Remedial Action Plan for access to information and fair administrative action in relation to all categories of complaints herein, and to report to the Court on compliance. b. That the Respondent issues a formal written public apology to the Applicant (and to all similarly situated complainants as the Court may direct) for proven violations. 6. Liberty to Amend and Reservation that the Applicant reserves all rights to amend, clarify, or supplement any claim, prayer, quantification, or relief on production of the psychologist’s report, discovery, or further legal/factual development, and that no procedural defect or omission herein shall bar such pursuit as allowed by law. 7. Other/Further Relief Such further or other relief as this Honourable Court may deem just, equitable, and necessary in the circumstances. 8. Costs - that costs of and incidental to the Application and proceedings be provided for. It is the Applicants case that between January 2022 and September 2025 he lodged over 15 complaints/ ATI requests before the Respondent against public and private institutions including: a. National Legal Aid Service, b. Children Office – Westlands Sub-County, c. Immigration Department d. Independent Policing Oversight Authority (IPOA), e. Kenya Health Professionals Oversight Authority (KHPOA), f. Kenya Medical Practitioners and Dentists Council (KMPDC), g. National Association for Clinical Officers (NACOA), h. Nursing Council of Kenya, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 2

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i. Jumbo Commodities Limited, j. Victims Protection Board, k. Dr. Heena Hooker, and l. Kenya Psychiatric Association, m. Mr. Manu savla n. Mr. Piyush savla o. ODPC p. Attorney General q. Ministry of Health CIO for old mental health act records over violations of my rights to fair administrative action, access to information, and accountability. 3. He is concerned because the Respondent closed or refused to act on those files, without investigation or written explanation, between the year 2022 and August/September 2025, contrary to the 2010 Constitution, the Fair Administrative Action Act, and the Respondent’s statutory mandate under Article 252 of the Constitution. 4. Despite several requests from the Applicant, the Respondent has failed to investigate the National Legal Aid Service which failed to provide written reasons for declining to provide legal aid to the Applicant upon his request. 5. He is aggrieved that despite the his request for the Respondent to write to the Children Office Westlands, it failed to properly investigate or follow up on grievances lodged against the Applicant's children, Kush and Nandini Savla, particularly in Children's Case No. 1411 of 2019.The mistakes in the children's report were not corrected even after several requests. 6. Further, the Immigration Department failed to provide a good reason why an injunction issued by a court against the travel of the Applicant's children was violated. 7. The children traveled to India and returned without any official being held responsible. The file was closed in Oct 2022 without further action. 8. The Respondent failed to investigate on IPOA upon the Applicants request when he was in 2016 and 2021 illegally detained in mental units by a family member and police officers who were not his lawfully designated next of kin. IPOA failed to investigate and take witness statements, and refused persistent Access to Information (ATI) requests. 9. The Applicant argues that he has been denied access to Chiromo Centre and the Retreat Facility in Limuru's medical records and procedural documents. The Kenya Health Professionals Oversight Authority (KHPOA), Kenya Medical Practitioners and Dentists Council (KMPDC), National Association for Clinical Officers (NACOA), and the Nursing Council of Kenya have not replied to complaints or requests. 10. The Respondent, upon request of the Applicant, have failed to re-open the files and investigate into the matter. 11. The Victims Protection Board failed to establish a panel to address the complaints of police abuses by the Applicant, in defiance of the guidelines provided by the Kenyan Senate. The Applicant wrote to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 3

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the Respondent requesting for it to investigate into the matter but went ahead to close the file without giving reasons in writing of why the file had been marked closed. 12. The Applicant has four (4) pending persistent Access to Information (ATI) requests, against Jumbo Commodities which have been partly pursued, ignored and/or yet to be attended to. 13. The Applicant had a persistent Access to Information (ATI) request against Dr. Heena Hooker, the Inspector General of Police which was closed without good reason. Kenya Psychiatric Association which has been partly pursued, ignored or yet to be attended to. Kenton College which has yet to be attended to. 14. On 15th May 2025, a Notice of Intention to Sue was served upon the Respondent, requiring it to: a. Reopen the closed complaint files and conduct further investigations; b. Provide progress reports on the files; c. Track and action his Access to Information requests; d. Ensure that he is accorded a fair hearing as guaranteed under Articles e. 48 and 50 of the Constitution; and f. Demonstrate accountability and transparency as expected of public entities under Chapter 6 of the Constitution g. The Respondent has to date failed and/or refused to respond substantively or reopen the files, thereby breaching his rights under Articles 35 and 47 of the Constitution and the provisions of sections 5, 6, and 7 of the Fair Administrative Action Act. 15. In each instance, the Respondent closed the files without furnishing reasons or undertaking further investigations. 16. He argues that he has exhausted all internal and statutory mechanisms and the files have not been reopened, nor have reasons provided as required by Section 5 of the Fair Administrative Actions Act. 17. Several files were marked closed, without any individualized reasons or notice of a right to review. 18. The Respondent's email of 23rd August 2023 confirms no further action, pushing to court—admitting exhaustion. 19. He has tabulated a list of partial set of closed/pending complaints, the dates of closure, efforts at internal review, and attached supporting correspondence, demonstrating exhaustion of all remedies and absence of lawful reasons. 20. As detailed in the Respondent’s own correspondence dated 23rd August 2023, several files were marked closed on dates such as 14th December 2022, 5th December 2022, and 14th February 2023, without any individualized reasons or notice of a right to review. 21. The refusal to act is in breach of my rights to fair administrative action, access to information, equality and dignity (Articles 27, 28, 35, 47, 48, 50 and 56 of the Constitution; sections 5, 6, 7 FAAA). 22. He is specifically pleading and seeking compensation for a. loss of dignity; b. heightened distress as a minority and vulnerable citizen from ongoing denials since 2022; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 4

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c. frustration of rights to information and redress; and d. aggravated constitutional injury from persistent denial 23. The Respondent’s non-action amounts to breach of my rights under Articles 47 and 35 of the Constitution as laid in the Fair Administrative Action Act, influenced further by case law. The Respondent's actions violate fair administrative justice principles. 24. The Respondent’s selective closure of files together with inaction in others, disregarding the Applicant's minority status, represents direct discrimination contravening Article 27's guarantees for equal treatment. 25. He set out incidences and communications, where the CAJ’s actions (or inactions) resulted in differential treatment, illustrating indirect discrimination against him as part of a minority group. 26. In the file for Dr. Hooker, his reply was ignored. In the file for Jumbo Commodities to do with company records, my reply was ignored .In the NLAS file, despite having partially to do with children, the matter has dragged on with no end in sight. 27. Constant procedural delays and file closures disrespectfully undermine the Applicant’s dignity, failing to recognize individual rights to humane treatment in proceedings. 28. Unaddressed ATI requests represent a direct breach of the Applicant's rights under Article 35, affecting both personal and public interest matters. 29. The denial of thorough investigations obstructs timely access to justice, contravening Article 48, mandating facilitations for justice accessibility. 30. The Respondent’s omission of procedural hearings for each case violates the Applicant’s Article 50 rights, removing necessary opportunities for defense and address. 31. It is his case that failure to address minority issues highlights the CAJ’s neglect parallel to Article 56's protections demanding proactive protection and representation. The cumulative pattern across these files demonstrates systemic bias and disregard for me as a minority and vulnerable citizen under Article 56, which exacerbates my distress and denial of dignity. 32. He argues that the Respondent’s action reflects breaches in procedural integrity, challenging the mandate for ethical service standards as outlined in Chapter 6 and Chapter 15. 33. The conduct of the Respondent amounts to a violation of his right to procedural fairness and effective remedy, thereby necessitating this application for judicial review according to him. 34. He specifically challenges the constitutionality of the six-week time limit under Rule 6(1) of the Rules, for reasons set out in his correspondence and the attached petition (NS-3), which demonstrates lack of legal justification, public participation, evidence base, and the arbitrary and disparate effect on access to justice in violation of Articles 22, 23, 24, 47, 48 and 50 of the Constitution. This timeframe was introduced without public participation, empirical justification, or alignment to Article 24 proportionality requirements. 35. He annexes correspondence dated 7 May, 18 May, and 8 September 2025 raising this challenge with the Chief Justice and the Rules Committee. 36. The statutory ground for seeking extension of time alternatively applies: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 5

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a. the Respondent’s conduct deliberately or by misrepresentation prevented me from knowing of/acting on the adverse administrative action taken, or b. even with diligence, I could not have known of specific file closures until service of the last “file closed” communication—details in NS-2, NS-3. 37. He argues that he continues to suffer includes denial of access to information, lack of investigation into breaches of my constitutional rights and professional/medical interests, and denial of redress, offending my dignity, equality and minority protections. 38. Through his further Affidavit he has added new and/or pending files for: Children Office — Westlands; NLAS; IPOA/Police/Mental Health Detention; Jumbo Commodities/Senaca; Medical (KHPOA/ KMPDC/NACOA/Nursing Council); Victims Protection Board; Dr. Heena Hooker/KPA/Kenton College; Kenton College ATI;Mental Health Act ATI/CIO; ATI Requests for Manu Savla and Piyush Savla; CAJ Complaints 9965 (ODPC) and 9969 (Attorney General); and all other files particularized in the Schedules. 39. He also relies on the following key schedules, prepared and verified for and as part of this affidavit SCHEDULE 1: Comprehensive Table of Constitutional / Statutory Breaches (with each file as a distinct entry),S CHEDULE 2: Per-File Breaches, Evidence, and Harm (distinct facts and annexures per file) and SCHEDULE 3: Heads of Damages/Relief (Declarations Sought; Quantification Reserved as per staged relief prayer. The Applicants Submissions; 40. He submits that The Respondent is mandated and has a duty to undertake investigations on behalf of its Citizens and ensure that fair administrative action has been carried upon by its Citizens. 41. He submits that despite multiple formal demands and persistent correspondence by the Applicant, the Respondent has failed, neglected and/or refused to investigate or re-open the relevant complaint and access to information files, in direct violation of its statutory and constitutional obligations under Article 47 of the Constitution and sections 5– 7 of the Fair Administrative Action Act, as well as Article 35 of the Constitution. This unexplained inaction contravenes both the letter and spirit of the Respondent’s mandate under Article 252. 42. Despite numerous correspondences to the Respondent by the Applicant on the progress of the matters, the Respondent has always responded indicating that the Applicant’s files have been closed without any reasonable explanation. 43. He submits that the Respondent failed to file any response within the stipulated timelines and has offered no sufficient cause or application for extension. As reaffirmed in Kwale International Sugar Company Limited v Chief Justice of Kenya ([2024] KEHC 12080 (KLR)), the effect of such default is that the Applicant’s factual averments and evidence stand unchallenged. 44. He submits that while the Court retains ultimate discretion, ‘directions must be respected and complied with by parties; failure to do so without compelling reasons may result in denial of further indulgence and the court is entitled to proceed on the basis of the uncontroverted material before it.’ The Respondent is thus barred from introducing any response except with formal leave, which has neither been sought nor granted. 45. He submits that it is now settled law that this Honorable Court has power to compel government officers to comply with mandates and functions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 6

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46. Reliance is placed in the two leading decisions on this subject have been delivered by Honorable Justice Odunga and Lady Justice Nyamweya in Nairobi Judicial Review Misc. Appl. No. 276 of 2016: Republic –v- Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka. 47. The Respondent’s inaction violates its constitutional obligations to ensure fair administrative processes (Article 47), lacking inquiry contrary to Article 252’s mandate. 48. He submits that The Respondent's closures without valid reasons infringe on the Applicant's rights to equality (Article 27) and human dignity (Article 28). 49. The Respondent's failure to act on Applicant’s complaints and ATI requests reflects unequal treatment and discrimination against Applicant as a minority. 50. This contravenes provisions against discrimination which guarantee equal treatment for all citizens under the law. 51. The manner in which Applicant’s complaints were handled undermines the inherent dignity and respect the Applicant is entitled to under this provision. 52. The Respondent’s blanket closure of multiple files, and its refusal to furnish case specific reasons for each adverse action, amounts to direct and indirect discrimination contrary to Article 27, and a substantive violation of the Applicant’s dignity under Article 28. 53. These omissions are exacerbated by the Applicant’s minority and vulnerable status, falling squarely within the protective ambit recognized in Njeri & 8 others v Nyakiongora & 3 others [2022] KEELC 2366 (KLR) and entitling the Applicant to elevated constitutional protection and effective relief. 54. The Respondent's conduct, of failing to properly track ATI requests, undermines Article 35 guarantees, reflecting a need for justice as guided by Article 48 of the Constitution. 55. The Respondent's conduct through the administrative inactions, and acts of omission and commission; deny the Applicant access to justice and his constitutional right to a fair hearing, including procedural fairness articulated under Article 48 and 50 of the Constitution. 56. The Respondent’s failings demonstrate a lack of accountability and transparency expected from public entities, as mandated by Chapter 6 on Leadership and Integrity & Chapter 15 on Independent Offices and Commissions of the Constitution. 57. Pursuant to Article 252 of the Constitution, the CAJ’s role involves investigating complaints related to malpractices, and the failure to adequately execute this role results in breaches of duty. 58. He submits that the Respondent’s conduct is in direct breach of Sections 5, 6, and 7 of the Fair Administrative Action Act, which require: 59. a. Written reasons for every adverse administrative action (Section 5(2)); b. Opportunity to be heard (Section 6(1)); c. Procedural fairness in the making of administrative decisions, with duty to provide information, notice of right to review, and to avoid arbitrary decision making (Section 7). The Respondent’s wholesale closure of complaints without written reasons, hearing, or review is ultra vires these statutory provisions. Judicial authority confirms these obligations: see [KO (Suing on behalf of OKJ) v Supreme Council of Kenya, [2024] KEHC 1672 (KLR)]. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 7

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60. The Respondent’s pattern of unreasoned, blanket closure of complaints, and its failure to treat the Applicant’s grievances with individualized consideration, constitutes discrimination contrary to Article 27 and to the established standard for equality before the law, particularly in the case of minorities and the vulnerable (see e.g., Njeri & 8 others v Nyakiongora & 3 others [2022] KEELC 2366 (KLR), High Court, and Macharia). 61. That the Applicant’s dignity rights under Article 28 have been violated through dismissive institutional conduct and the stigma of unjustified file closures, warranting compensatory and vindicatory relief. 62. The Supreme Court in Macharia emphasizes that loss of dignity and resulting stigma merit distinct constitutional damages. 63. It is his case that the repeated non-responsiveness to the Applicant's ATI requests, without lawful reasons or compliance with statutory timelines, violates the direct terms of Article 35 and the Access to Information Act. 64. Macharia reaffirms that denial of information required for the exercise of other rights is a justiciable harm. 65. The Respondent has, by omission and summary closure, denied the Applicant’s rights under Article 47 to administrative action that is expeditious, lawful, reasonable, and procedurally fair. 66. The controlling authorities [KO (Suing on behalf of OKJ) v Supreme Council of Kenya, [2024] KEHC 1672 (KLR)] affirm that such breaches attract constitutional relief. 67. It is his case that by closing complaints and ATI files without investigation or written reason, and failing to communicate rights of review, the Respondent has obstructed the Applicant’s right of access to justice and legal remedies under Article 48. 68. The lack of individualized hearing, the absence of procedural opportunities for reply, and the refusal to give written reasons for closure contravene Article 50 on fair hearing—especially where reputational and participatory rights are at stake. 69. The Respondent’s practices have disproportionately affected the Applicant as a member of a minority, violating Article 56’s obligation for affirmative steps to protect minority and marginalized citizens from exclusion and administrative neglect. 70. The Applicant prays for determinations by the court regarding re-opening of individual files, establishing specific procedural failings by the Respondent regarding their lack of action or wrongful action. 71. Following favorable determinations, the Applicant prays Declarations to issue confirming the violation of statutory and constitutional duties, resulting in acknowledged failure in administrative justice and access to information compliance, necessitating individual redressed actions. 72. On damages he relies in Charles Muturi Macharia (Suing as next friend of Christine Wangari Muturi) & 6 others v Standard Group & 4 others (SC Petition 13 (E015) of 2022), the Supreme Court held— a. Proof of “pecuniary loss” is not a prerequisite for an award of constitutional damages where there is a clear violation of fundamental rights; b. The controlling measure is the need to vindicate the right and deter future breaches, not strict quantification of loss ([see, eg., Macharia SC at paras 97–102]); https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 8

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c. (c) The Court must consider intangible harms—including stigma, emotional distress, exclusion, humiliation, and loss of dignity—as actionable and compensable, especially for vulnerable or marginalized complainants; d. Vindicatory damages are a constitutional remedy for breach per se, and not ancillary or exceptional. The “fact of infringement and context of violation” suffice for relief so long as a deserving case is disclosed. 73. The record establishes persistent, unjustified denial of fair hearing, access to information, and procedural fairness by the Respondent. 74. In accordance with the Supreme Court’s binding holding in Macharia, the Applicant’s demonstrated distress, humiliation, loss of dignity, and exclusion—documented by affidavit and not denied—require non-pecuniary constitutional damages as a matter of law. we reiterate: for constitutional/public law claims, damages need not be proven to a strict quantifiable standard where the fact of infringement and the context of the violation are clear; the remedy serves both to vindicate the right and deter future harm...” (Macharia SC Petition 13 (E015) of 2022, para 99–102). 75. The Applicant seeks constitutionally mandated compensation, including general, exemplary, aggravated, and vindicatory damages, for the breach of fundamental rights under Articles 27, 28, 35, 47, 48, and 50. 76. This is consistent with current High Court and Supreme Court authority that compensation for intangible harm—such as distress, humiliation, and loss of dignity—is available and necessary to vindicate rights (see Muchelule & 5 others v Attorney General; Judicial Service Commission (Interested Party) [2024] KEHC 12116 KLR). 77. The Applicant specifically pleads for: a. General damages for emotional distress and humiliation, quantifiable per file/incident on the Njeri & 8 others scale. b. Exemplary/punitive damages to deter willful administrative neglect, as awarded in Muchelule & others (for abuse of state power); c. Aggravated damages for sustained failure to mitigate harm after continued notice and correspondence; d. Vindicatory damages, per Supreme Court principle, recognizing the need to restore the dignity and constitutional status of vulnerable/victimised litigants and to reinforce public law values —see KO (Suing on behalf of OKJ)([2024] KEHC 1672 (KLR)), which confirmed an award for school exclusion without a hearing. 78. The Applicant advances this claim as both an aggrieved individual and as a public interest litigant under Articles 22 and 23, on behalf of similarly situated minority, vulnerable, and self-represented citizens systematically excluded from meaningful redress by the Respondent’s blanket practices. 79. Per Njeri & 8 others and RAB & RAB (Minors) v Makini Schools ([2025] KEHC 2475 (KLR)), the Court is enjoined to grant robust relief where a pattern of administrative conduct jeopardizes the rights of marginalised or disadvantaged groups, and costs should not be visited on the Applicant on grounds of public utility and constitutional vindication. 80. The Supreme Court and High Court are clear that it is not sufficient to issue mere declarations when the facts establish proved violations of fundamental rights by public authorities: see Muchelule & https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 9

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5 others v Attorney General; Judicial Service Commission (Interested Party) [2024] KEHC 12116 (KLR) and Njeri & 8 others v Nyakiongora & 3 others; National Land Commission & another (Interested Parties) [2022] KEELC 2366 (KLR). In cases involving continued or aggravated harm, especially to the vulnerable, damages are necessary for effective redress and deterrence. Analysis and determination; The issues for determination are; 1. Whether the application has merit. 2. Who shall be the cost. The Merit analysis question; 81. The Supreme Court in the case of Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) summarized the two approaches to judicial review in the following manner: “ It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.” 82. The court is satisfied that the application qualifies to be one that allows me to conduct a merit review. The next issue is whether the applicant’s right to be heard was violated; 83. The Supreme Court in the case of Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) held that under Article 50(2) of the Constitution procedural fairness in the administration of justice involved the fair hearing rule that required a decision maker to inter alia afford a person an opportunity to be heard before making any decision affecting his/her interests. 84. Justice Odunga (as he then was) explained in the case of Republic v Commission on Administrative Justice & 2 others Ex parte Michael Kamau Mubea [2017] eKLR the importance of an affected party being accorded an opportunity to be heard as follows: ‘‘112. In my view, reference to hearing the other side must have been with respect to oral representation since I do not see how a decision affecting a person can be made without affording that person an opportunity to present his case either orally or by in writing in light of the provisions of Article 47 and 50 of the Constitution. However, the law is clear that where a tribunal decides to hear one party then it must hear all the parties.’’ 85. This court is satisfied that the closure and refusal to give reasons for the closure took away the applicants right to be heard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 10

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On the issue of access to information: 86. Everybody has a right to access to information that is held by constitutional bodies like the respondent. This is subject to the Constitutional limitations under Article 24 of the Constitution. The respondent has not justified why it is declining or refusing to furnish the applicant with the information sought. 87. The applicant has demonstrated that he made numerous requests for information under Article 35 of the Constitution which have not been attended to. The refusal or denial to give information without justification amounts to violation of the applicant's right to access to information under Article 35 of the Constitution and I so hold. On the issue of fair administrative action; 88. In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada persuasively held that the values underlying the duty to procedural fairness relate to the principle that the individual(s) affected should have the opportunity to present their case fully and fairly. The Court stated as follows: “ The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: 89. 1. the nature of the decision being made and process followed in making it; 2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3. the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; 4. the choices of procedure made by the agency itself. This list is not exhaustive.” On the factors affecting the content of the duty of fairness, the Court had this to say: a. “(1) Factors Affecting the Content of the Duty of Fairness b. 21.The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. c. 22. Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 11

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administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. d. 23, several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J. e. 24.A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”: Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67. f. 25. A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113: g. … h. As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667: i. In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body. j. The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 12

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90. k. 26. Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. l. 27. Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J. m. 28. I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.” [emphasis added] The court has considered the nature of the statutory scheme and the terms of the statute pursuant to which the Respondent operates and I find that it is a commission in charge of administration of justice with a mandate related to what the Applicant is complaining of. It has a higher duty to ensure that the Applicant’s legitimate expectation that he will enjoy a speedy, expeditious and a legal process. It failed to uphold this duty. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 13

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91. The Court finds that the applicant has proven that the respondent acted unfairly when it refused to inform him or give him the reasons why it failed or refused to act, investigate his complaints, when it closed his complaints without giving reasons and when it failed to inform him of what was going on. 92. This amount to procedural impropriety and an administrative action that amounts to the breach of the Applicant’s right to fair administrative action and the legitimate expectation right that the respondent owed the applicant. 93. The failure to act amounted to a breach or applicants rights to fairness study action is guaranteed under Article 47 of the Constitution. 94. The Fair Administrative Action Act gives this court power to generate orders that are appropriate for purposes of giving redress to a litigant. 95. The court cannot issue adverse blanket orders against the respondents officers and agents since they are not particularised nor identified by the Applicant. 96. The Applicants did not prove that there was discrimination. 97. The application was admitted given that the applicant has proven that there are ongoing, concealed, or un redressed administrative violations which have occurred and the Respondent has been in persistent default. 98. The applicant prayers for an order that the Applicant reserves all rights to amend, clarify, or supplement any claim, prayer, quantification, or relief on production of the psychologist’s report, discovery, or further legal/factual development, and that no procedural defect or omission herein shall bar such pursuit as allowed by law is declined since the law does not allow piecemeal litigation. Costs: 99. In Republic vs. Rosemary Wairimu Munene, Ex-parte Applicant vs. Kururu Dairy Farmers Cooperative Society Ltd the court held; “ The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case" 100. The applicant is successful and he shall be awarded costs. Determination: 101. The application has merit. Orders: 1. A Declaration is hereby issued that the Respondent is in breach of the rights and duties conferred by Articles 27, 28, 31, 35, 47, 48, 50 of the Constitution. 2. A declaration is hereby issued that the Respondent, its officers (including Commissioners, Chief ATI Officer, and all staff), are vertically and horizontally bound by the Bill of Rights for all acts/omissions under Article 3 and 20 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 14

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3. The prayer that the Applicant is entitled to vindicatory, aggravated, exemplary, and special damages for each proven breach; that special damages include the quantifiable value of lost time (in preparing pleadings, service, filings, correspondence, attendance, and all efforts necessitated by Respondent’s default), as well as documented out-of-pocket and opportunity costs—with quantification to be particularized following declarations, completion of discovery, and filing of the psychologist’s report within one month or further as the Court may allow is declined. 4. The Respondent shall formulate and issue the applicant with a schedule containing all the information and the status of each of his complaints listed in this suit within two months. 5. The prayer that the Respondent issues a formal written public apology to the Applicant (and to all similarly situated complainants as the Court may direct) for proven violations is declined. 6. The prayer that the Applicant reserves all rights to amend, clarify, or supplement any claim, prayer, quantification, or relief on production of the psychologist’s report, discovery, or further legal/factual development, and that no procedural defect or omission herein shall bar such pursuit as allowed by law is declined. 7. Costs to the applicant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF DECEMBER, 2025. ……………………………………….. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19318/eng@2025-12-23 15

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