Kenya Act or statute

Parliament of Kenya

Fair Administrative Action Act

Jurisdiction: Kenya
Structure: 14 provisions
Citation: Cap. 7L
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“The Act may be cited as the Fair Administrative Action Act.”

The Act may be cited as the Fair Administrative Action Act. References "the powers, functions and duties exercised by authorities or quasi-judicial tribunals." Application: section exercising administrative authority Section 4 guarantees that every person is entitled to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, including rights to written reasons and specified procedural protections; administrators may follow alternative procedures when authorized by law. Section 5 lists procedural requirements for administrative action affecting the public: issuing public notice inviting views, considering submitted views and relevant facts, and giving reasons and information on internal appeal mechanisms and appeal timing; it also states available avenues to challenge or review administrative actions under specified laws.

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PRELIMINARY - 1. Short title

The Act may be cited as the Fair Administrative Action Act.

Section 1

FAIR ADMINISTRATIVE ACTION - 4. Administrative action to be taken expeditiously, efficiently, lawfully etc.

Section 4 guarantees that every person is entitled to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, including rights to written reasons and specified procedural protections; administrato…

Section 4

JUDICIAL REVIEW - 11. Orders in proceedings for judicial review

Section 11 lists orders available in judicial review proceedings, including prohibitions and directives affecting administrators such as restraining them from unlawful or prejudicial actions, directing them to give reasons, and compelling performance of public…

Section 11

JUDICIAL REVIEW - 9. Procedure for judicial review

Section 9

MISCELLANEOUS - 14. Transition provisions

If there is difficulty or doubt about procedure, the Chief Justice may issue practice notes or directions on the procedure to be adopted.

Section 14

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Source record from new.kenyalaw.org · As at 31 Dec 2022

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Showing 14 of 14 provisions

Provision 12Short titleInterpretation

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

The Act may be cited as the Fair Administrative Action Act.

Section 1. Short title Section This Act may be cited as the Fair Administrative Action Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

References "the powers, functions and duties exercised by authorities or quasi-judicial tribunals."

Section 2. Interpretation Section the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or

Section 2Verify source

Part II

FAIR ADMINISTRATIVE ACTION

§ 3FAIR ADMINISTRATIVE ACTION - 3. ApplicationProvision

Application: section exercising administrative authority

Section 3. Application Section exercising administrative authority;

Section 3Verify source

§ 4FAIR ADMINISTRATIVE ACTION - 4. Administrative action to be taken expeditiously, efficiently, lawfully etc.Provision

Section 4. Administrative action to be taken expeditiously, efficiently, lawfully etc. Section 4(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4(2) Every person has the right to be given written reasons for any administrative action that is taken against him. Section 4(3)(a) prior and adequate notice of the nature and reasons for the proposed administrative action; Section 4(3)(b) an opportunity to be heard and to make representations in that regard; Section 4(3)(c) notice of a right to a review or internal appeal against an administrative decision, where applicable; Section 4(3)(d) a statement of reasons pursuant to section 6 ; Section 4(3)(e) notice of the right to legal representation, where applicable; Section 4(3)(f) notice of the right to cross-examine or where applicable; or Section 4(3)(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action. Section 4(4)(a) attend proceedings, in person or in the company of an expert of his choice; Section 4(4)(b) be heard; Section 4(4)(c) cross-examine persons who give adverse evidence against him; and Section 4(4)(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing. Section 4(5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings. Section 4(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.

Section 4Verify source

§ 5FAIR ADMINISTRATIVE ACTION - 5. Administrative action affecting the publicProvision

Section 5 lists procedural requirements for administrative action affecting the public: issuing public notice inviting views, considering submitted views and relevant facts, and giving reasons and information on internal appeal mechanisms and appeal timing; it also states available avenues to challenge or review administrative actions under specified laws.

Section 5. Administrative action affecting the public Section 5(1)(a) issue a public notice of the proposed administrative action inviting public views in that regard; Section 5(1)(b) consider all views submitted in relation to the matter before taking the administrative action; Section 5(1)(c) consider all relevant and materials facts; and Section 5(1)(d) give reasons for the decision of administrative action as taken; Section 5(1)(d)(i) give reasons for the decision of administrative action as taken; Section 5(1)(d)(ii) issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and Section 5(1)(d)(iii) specify the manner and period within the which such appeal shall be lodged. Section 5(2)(a) challenge any administrative action or decision in accordance with the procedure set out under the Commission on Administrative Justice Act (Cap. 7J) or any successor to the Commission on Administrative Justice under section 55 of the Commission on Administrative Justice Act (Cap. 7J); Section 5(2)(b) apply for review of an administrative action or decision by a court of competent jurisdiction in exercise of his or her right under the Constitution or any written law; or Section 5(2)(c) institute such legal proceedings for such remedies as may be available under any written law.

Section 5Verify source

§ 6FAIR ADMINISTRATIVE ACTION - 6. Request for reasons for administrative actionProvision

People materially or adversely affected by an administrative action are entitled to information to support an appeal or review; the administrator must, within thirty after receiving a request, furnish the applicant in writing the reasons for the action; an administrator may depart from giving reasons if reasonable and justifiable but must inform the requester of the departure.

Section 6. Request for reasons for administrative action Section 6(1) Every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review in accordance with section 5 . Section 6(2)(a) the reasons for which the action was taken; and Section 6(2)(b) any relevant documents relating to the matter. Section 6(3) The administrator to whom a request is made under subsection (1) shall, within thirty after receiving the request, furnish the applicant, in writing, the reasons for the administrative action. Section 6(4) Subject to subsection (5), if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision shall, in any proceedings for review of such action or decision and in the absence of proof to the contrary, be presumed to have been taken without good reason. Section 6(5) An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and shall inform the person making the request of such departure.

Section 6Verify source

Part III

JUDICIAL REVIEW

§ 10JUDICIAL REVIEW - 10. RulesProvision

Applications for judicial review are to be heard without strict procedural technicalities; the Chief Justice may make rules of practice governing judicial review of administrative action.

Section 10. Rules Section 10(1) An application for judicial review shall be heard and determined without undue regard to procedural technicalities. Section 10(2) The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.

Section 10Verify source

§ 11JUDICIAL REVIEW - 11. Orders in proceedings for judicial reviewProvision

Section 11. Orders in proceedings for judicial review Section 11(1)(a) declaring the rights of the parties in respect of any matter to which the administrative action relates; Section 11(1)(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant; Section 11(1)(c) directing the administrator to give reasons for the administrative action or decision taken by the administrator; Section 11(1)(d) prohibiting the administrator from acting in a particular manner; Section 11(1)(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions; Section 11(1)(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right; Section 11(1)(g) prohibiting the administrator from acting in a particular manner; Section 11(1)(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions; Section 11(1)(i) granting a temporary interdict or other temporary relief; or Section 11(1)(j) for the award of costs or other pecuniary compensation in appropriate cases. Section 11(2)(a) directing the taking of the decision; Section 11(2)(b) declaring the rights of the parties in relation to the taking of the decision; Section 11(2)(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or Section 11(2)(d) as to costs and other monetary compensation.

Section 11Verify source

§ 7JUDICIAL REVIEW - 7. Institution of proceedingsProvision

Proceedings may be instituted by a court in accordance with section 8 or by a tribunal exercising jurisdiction conferred under any written law; the section lists multiple grounds and factual circumstances (e.g. lack of authorization, excess of jurisdiction, bias, denial of opportunity to state a case, procedural unfairness, error of law, bad faith, abuse of discretion, unreasonableness, disproportionality, violation of legitimate expectations) and states that the administrator may be under a duty to act, may have failed or refused to act, or an action may be required within a specified period.

Section 7. Institution of proceedings Section 7(1)(a) a court in accordance with section 8 ; or Section 7(1)(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law. Section 7(2)(a) was not authorized to do so by the empowering provision; Section 7(2)(a)(i) was not authorized to do so by the empowering provision; Section 7(2)(a)(ii) acted in excess of jurisdiction or power conferred under any written law; Section 7(2)(a)(iii) acted pursuant to delegated power in contravention of any law prohibiting such delegation; Section 7(2)(a)(iv) was biased or may reasonably be suspected of bias; or Section 7(2)(a)(v) denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case; Section 7(2)(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with; Section 7(2)(c) the action or decision was procedurally unfair; Section 7(2)(d) the action or decision was materially influenced by an error of law; Section 7(2)(e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant; Section 7(2)(f) the administrator failed to take into account relevant considerations; Section 7(2)(g) the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions; Section 7(2)(h) the administrative action or decision was made in bad faith; Section 7(2)(i) the purpose for which it was taken; Section 7(2)(i)(i) the purpose for which it was taken; Section 7(2)(i)(ii) the purpose of the empowering provision; Section 7(2)(i)(iii) the information before the administrator; or Section 7(2)(i)(iv) the reasons given for it by the administrator; Section 7(2)(j) there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law; Section 7(2)(k) the administrative action or decision is unreasonable; Section 7(2)(l) the administrative action or decision is not proportionate to the interests or rights affected; Section 7(2)(m) the administrative action or decision violates the legitimate expectations of the person to whom it relates; Section 7(2)(n) the administrative action or decision is unfair; or Section 7(2)(o) the administrative action or decision is taken or made in abuse of power. Section 7(3)(a) the administrator is under duty to act in relation to the matter in issue; Section 7(3)(b) the action is required to be undertaken within a period specified under such law; Section 7(3)(c) the administrator has refused, failed or neglected to take action within the prescribed period.

Section 7Verify source

§ 8JUDICIAL REVIEW - 8. Period for determination of applications and appealsProvision

An application for review or an appeal must be determined within ninety days of filing the application.

Section 8. Period for determination of applications and appeals Section An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.

Section 8Verify source

§ 9JUDICIAL REVIEW - 9. Procedure for judicial reviewProvision

Persons aggrieved by an administrative action may apply for judicial review to the High Court or a subordinate court without unreasonable delay; courts generally must not review until internal and other legal remedies are exhausted, may in exceptional circumstances exempt applicants from exhausting remedies, must direct applicants to exhaust remedies if the court is not satisfied they have been exhausted, and orders of the High Court on judicial review may be appealed to the Court of Appeal.

Section 9. Procedure for judicial review Section 9(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. Section 9(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Section 9(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1). Section 9(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Section 9(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.

Section 9Verify source

Part IV

MISCELLANEOUS

§ 12MISCELLANEOUS - 12. Principles of common law and rules of natual justiceProvision

This Act supplements and does not override the general principles of common law and the rules of natural justice.

Section 12. Principles of common law and rules of natual justice Section This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice.

Section 12Verify source

§ 13MISCELLANEOUS - 13. RegulationsProvision

The Cabinet Secretary may make regulations (in consultation with the Commission on Administrative Justice) to better carry out the Act; regulations made under subsection (5) must be approved by Parliament before publication in the Gazette.

Section 13. Regulations Section 13(1) The Cabinet Secretary may, in consultation with the Commission on Administrative Justice, make regulations for the better carrying out of the provisions of this Act. Section 13(2) Regulations made under subsection (5) shall, before publication in the Gazette , be approved by Parliament.

Section 13Verify source

§ 14MISCELLANEOUS - 14. Transition provisionsProvision

If there is difficulty or doubt about procedure, the Chief Justice may issue practice notes or directions on the procedure to be adopted.

Section 14. Transition provisions Section 14(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done. Section 14(2)(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and Section 14(2)(b) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.

Section 14Verify source

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1 referenced instrument

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Commission on Administrative Justice Act
Section 5

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31 Dec 2022 · currentEnglish

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