[2008] KEHC 3900 (KLR)

[2008] KEHC 3900 (KLR)

The court found that Regulation 27 and Part V of the KNCHR (Complaints Procedures) Regulations 2005 were ultra vires the KNCHR Act 2002, as the Act did not provide for the establishment of a hearing panel as set out in the Regulations. The appointment of a single commissioner to preside over the hearing panel was contrary to the clear requirements of Regulation 27, rendering the proceedings and decisions unlawful. The court held that the Respondent, by expressing a view on the merits of the complaint prior to the hearing, created a real likelihood of bias, thus breaching the rules of natural justice and the applicant's legitimate expectation of a fair hearing. The court further found that...

Citation
[2008] KEHC 3900 (KLR)
Parties
Applicant: Kenya Commercial Bank Ltd; Respondent: Kenya National Commission on Human Rights
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
19 December 2008
Case Number
Miscellaneous Application 688 of 2006
Procedural Posture
Miscellaneous Application / Judgment
Outcome
Application allowed in part; impugned regulations and proceedings quashed; prohibition granted; no order as to costs.
Legal Topics
Judicial Review, Ultra Vires Regulations, Natural Justice, Bias and Impartiality, Statutory Interpretation, Legitimate Expectation
Source Language
English
Administrative Law Constitutional Law Civil Procedure Judicial Review Ultra Vires Regulations Natural Justice Bias and Impartiality Statutory Interpretation +1 more

Case Brief

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Parties

Kenya Commercial Bank Ltd

Applicant

Kenya National Commission on Human Rights

Respondent

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether Regulation 27 and Part V of the KNCHR (Complaints Procedures) Regulations 2005 are ultra vires the KNCHR Act 2002 and thus invalid.
  2. 2 Whether the composition of the hearing panel by a single commissioner was unlawful under the Regulations.
  3. 3 Whether the Respondent breached the rules of natural justice, including bias and legitimate expectation of a fair hearing.

Ratio Decidendi

The court found that Regulation 27 and Part V of the KNCHR (Complaints Procedures) Regulations 2005 were ultra vires the KNCHR Act 2002, as the Act did not provide for the establishment of a hearing panel as set out in the Regulations. The appointment of a single commissioner to preside over the hearing panel was contrary to the clear requirements of Regulation 27, rendering the proceedings and decisions unlawful. The court held that the Respondent, by expressing a view on the merits of the complaint prior to the hearing, created a real likelihood of bias, thus breaching the rules of natural justice and the applicant's legitimate expectation of a fair hearing. The court further found that...

Court Disposition

Application allowed in part; impugned regulations and proceedings quashed; prohibition granted; no order as to costs.

Orders

  • Regulation 2, 14, 21, and 22 of the KNCHR Regulations 2005 are quashed.
  • Regulation 27 and Part V of the KNCHR Regulations 2005 are quashed.