The doctrine of ultra viresis a legal doctrine. In the English Legal System judicial control of administrative agencies is based on the doctrine of ultra vires. This is the doctrine on the basis of which the courts will interfere or intervene in matters of public administration. Ordinarily courts would not interfere.
WHAT IS ULTRA VIRES
It simply means “beyond the powers” so that if ultra vires is the basis in which courts will interfere or intervene on matters of public administration then the point is that courts will intervene on matters of public administration if the administrative bodies have acted beyond the powers that have been conferred on them.
The essence of this doctrine is that administrative bodies must act within the powers granted them by statutes. They must also act within the requirements of common law.
Administrative bodies must act only within the powers that they have been given by the statutes. They must also recognise the limits imposed on them by the statutes. The exercise of powers by administrative bodies often affects the rights of citizens and for this reason it is necessary that these powers be exercised only with accordance with the statute granting the power so that people do not suffer. Limits are placed by statutes to ensure that powers conferred to administrative bodies do not end up causing suffering to citizens.
For these reasons any act of a public administrative body that is outside the limit of law has no legal validity because it is Ultra Vires.
The term Ultra vires can cover a wide range of actions undertaken in excess of the law or in excess of the powers granted.
For example an administrative body acts ultra vires if that body does an act which it has no authority to do. The second example is where an administrative body in the process of exercising the powers, it abuses those powers, which amounts to acting ultra vires.
There are also cases where bodies act ultra vires because in the cause of exercising those powers that are authorised, they have failed to follow prescribed procedure.
TYPES OF ULTRA VIRES
1. Substantive Ultra Vires.
2. Procedural Ultra Vires.
1. SUBSTANTIVE ULTRA VIRES
Substantive ultra vires is acting in excess of powers with regard to matters of substance. This would include for example an administrative body acting beyond what is authorized to do. Substantive ultra vires includes the following cases:
1. Exercising power in excess of statutory limits;
2. Acting in excess of jurisdiction;
3. Breach of the principles of natural justice; in this case failure to give notice of hearing to a concerned party. For example would amount to breach of principles of natural justice and that falls under substantive ultra vires
PROCEDURAL ULTRA VIRES
These are cases where administrative bodies fail to follow prescribed procedure. They also include cases where an error occurs in following the procedure.
Whereas we do have procedure prescribed in statutes, there are also matters of procedure that are not in the statutes but they are applicable under common law and this is where we find the procedural requirements that fall under the principles of natural justice.
A person has to be given notice of a hearing of their case; this is one of principles of natural justice. This is in order that the person affected must be made aware of what is going on and be given an opportunity to raise any objection that they might have. They must also have the chance to defend themselves.
Courts are mandated to use or to apply ultra vires doctrine to invalidate actions of public bodies. If a body has done something that amounts to procedural ultra vires, the court will be prepared to apply the doctrine of ultra vires to invalidate that action.
The effect of finding that an act or a decision is ultra vires is that it is invalidated. It means that the court will declare that act or decision null and void. Consider the case of White and Collins v.Minister of Health.
This case concerns the exercise of power of compulsory purchase of land. In this case a housing authority was granted power under the Housing Act of 1936 to acquire land compulsorily for housing „provided that land did not form part of any park, garden or pleasure ground.‟ The Housing Authority went ahead and acquired land or purported to acquire land that was a park. After they acquired this land, they sought and obtained confirmation of their acquisition from the Minister of Health (the one responsible for giving confirmation of such services). The parties brought a suit seeking to have the purchase order invalidated on the grounds that the order to purchase this land was Ultra Vires because the land was a park and there was a statutory restriction on the purchase of any land that was a park. The court quashed the order for purchase as well as the purchase declaring it null and void
2. UNREASONABLENESS
One of the things the court considers, in determining unreasonableness is whether a public body has considered or taken into account any matter that it ought not to take into account.
Another thing that the court will consider is whether a public body has disregarded any matter that it ought to take into account.
In R v. Ealing London Borough Council Ex parte Times Newspapers Ltd, the council was held to be unreasonable in refusing to provide certain Newspapers to their libraries because the council did not agree with the Newspapers Proprietors on political grounds. The court held that the council was unreasonable in refusing to provide their libraries with certain Newspapers.
JURISDICTIONAL ERROR
Jurisdiction means the scope or area in which a body is allowed to act. It includes territorial limits.
Where there is an error it means:
1. That an administrative agency has acted without jurisdiction i.e. they have acted over matters which they have no authority to act.
2. They have acted within jurisdiction but have gone beyond or exceeded their limits. This can happen:
When a body erroneously exercises power or authority over a matter that is outside of its territorial limits.
Where a body legislates over a matter that falls outside of the matters it is authorised to legislate over.
Where an administrative body declines to exercise jurisdiction to hear and decide a case or to legislate over a matter over which it has jurisdiction to hear or decide or legislate over. (the Administrative body has the authority to do something but it declines to do it.)
It may also arise when a body fails to administer a function or to carry out a duty that it has the statutory authority to administer or to carry out.
In case any one of these things occurs and a person is aggrieved, the aggrieved person can apply to the High Court for Judicial Review on the ground that a public body has committed jurisdictional error.
4. ERROR OF LAW
An error of law is a condition or an act of ignorance, negligence or imprudent deviation or departure from the law.
Ignorant departure would include a situation where an administration official is ignorant of the law. If the Minister of Local Government for example has no idea that he cannot sack an elected mayor, this is an act of ignorance.
Negligence would be where an administrative body fails to do what the law provides and in that case they have failed to look up the law to see what it provides.
This can result from a number of things:
1. Failure to ascertain what the law says about a particular matter;
2. misconstruction of the law;
3. Misinterpretation of the law;
4. Blatant disregard of the law;
5. Misunderstanding of the law; or
6. Misdirection on the law (this involves a situation where an administrative body seeks direction on the law) i.e. if the head of civil service seeks direction from the AG or from the Chief Justice or Minister for Justice and Constitutional Affairs and they give incorrect directions on the same, this is misdirection.
5. ERROR OF LAW ON THE FACE OF THE RECORD
In all the above cases, it is usually said that there is an error of law on the face of the record. An error of the law on face of the record is an error which may be ascertained by an examination of the record of proceedings without recourse to any evidence. Just by looking at the record of proceedings, one can tell that the law was not followed.
The result of error of law is that the decision made and all the acts done in error of law are invalidated upon judicial review because they are illegal.
In R v. Northumberland Compensation Appeals Tribunal ex parte Shaw a former employee of an administrative body claimed compensation on termination of his employment. Under the applicable regulations the tribunal was required to assess compensation payable by aggregating two periods of employment i.e. the law was saying that in computing compensation one would have to aggregate two periods of employment. In its decision the tribunal stated that of the two periods of employment, they would take into account only the second period. Upon application for judicial review this decision was quashed because of the error of law that had been committed. The court found that this amounted to an error on the face of the record and the decision was quashed. The court issued an order of certiorari which involves the production of proceedings of the tribunal to the High Court so they can be quashed.
6. ERROR OF FACT
It is important to note that facts are integral to the making of a decision. The validity of a decision depends on the proper appreciation and interpretation of facts.
An error of fact occurs where there has been an act or a condition of ignorance, negligence or imprudent deviation from facts. This may occur from a number of facts:
1. Where facts have not been properly appreciated;
2. Where facts have not been properly interpreted;
3. Where there is an incorrect finding of facts;
4. Where irrational conclusions are made from facts;
5. Where a decision is made without giving due regard to the factual circumstances of the case at hand.
The effect of error of facts is that it renders a decision null and void.
7. ABUSE OF POWER
Abuse of power includes cases where the power and authority given public bodies have:
1. been put to a wrong or improper use;
2. been used so as to injure or to damage;
3. been misused;
4. Been used corruptly.
If the court finds that an administrative body has abused its power or his power, any act done or decision made will be invalidated.
8. IMPROPER EXERCISE OF DISCRETION
An administrative body has the authority to exercise discretion whenever the limits of its statutory authority leave it to decide between two or more causes of action or inaction.
There will have to be a statutory authorisation to do something but the statutory provisions does not completely specify what one is authorised to do. The exercise of discretion is an important aid to the exercise of statutory powers.
Whenever circumstances give rise to the exercise of discretion:
1. Discretion must be exercised properly;
2. Discretion must be exercised reasonably;
3. Discretion must be exercised by the proper authority only and not by a delegate;
4. Discretion must be exercised without restraint;
Certain circumstances will give rise to improper exercise of discretion which includes:
1. Exercising discretion for improper motive;
2. Where power to exercise discretion is delegated to a person who is not charged with the responsibility in question;
3. Where discretion is exercised so as to serve self-interest.
Consider Fernandes V. Kericho Liquor Licensing Court. The case concerns the authority given to Kericho Liquor Licensing Court to grant licences. In this case they decided they were only going to give liquor licences to Africans. The Court ruled that they had exercised their discretion improperly by deciding to issue licences only to Africans.
8. IRRELEVANCY
Irrelevancy occurs in two situations:
1. Where a decision making body considers a matter which it ought not to consider in arriving at a decision; e.g. if on the basis of gender a licence is denied.
2. Where an administrative body disregards something which it ought to consider in making a decision.
9. BIAS
It is a predetermined tendency to favour one outcome, one outlook or one person against another. It involves acting partially i.e. acting favourably to one side. Whenever an allegation of bias is made, a reviewing court will investigate whether there is an appearance of partiality. A reviewing court will evaluate whether there is a tendency of one side to favour one person.
There are certain principles that will guide the court in determining the presence of bias.
(i) The Real Likelihood of Bias;
Circumstances in which the court will conclude that there was a real likelihood of bias include cases where the decision maker has an interest in the matter under consideration. Interest may be pecuniary, interest may also be adverse.
(ii) The Real Danger Test:
This is another of the tests that the court will apply in determining the presence or absence of bias. The consideration is whether there is a real danger that a public official or body participating in a decision will be influenced by a personal interest in the outcome of a case.
The question to ask is how significant the interest is and how closely or remotely related to the issue it is. In the real danger test the consideration is whether there is a real danger that an official participating in a decision will be influenced by a pecuniary interest and how closes or remote it is to the matter decided.
(iii) Actual Bias:
There are cases where in the absence of the real likelihood of bias, pecuniary or other interests and the real danger of partiality, bias does actually occur and in this situation the test is whether there was actual bias.
In cases where there is a likelihood of bias, for example in cases where members of the decision making body have a pecuniary interest in the matter to be considered, they must disqualify themselves from taking part in making that decision.
If they do not, this will give rise to bias and the decision made can be invalidated upon review. Invalidation is by way of quashing the decision.
10. UNFAIR HEARING
Administrative bodies are bound to give a fair and proper hearing to those who come before them. Often the statutes will prescribe the procedure for hearing indicating how concerned parties are to be heard.
In such statutory provisions, the duty to grant a fair and proper hearing may be implied. In the absence of statutory provisions setting forth procedure for hearing, common law rules regarding fair and proper hearing will apply.
Where a public body makes a decision without due regard to prescribed procedure or without due regard to common law principles of fair hearing, an aggrieved party will be entitled to petition the court for review.
In Neil v. North Antrim Magistrate’s Court it was suggested that even if a right decision is arrived at a party may still petition the court if some procedural flaw occurred occasioning damage. This means that if a party had a case and even if he argued that case as cogently as he could, failure to grant a fair hearing will bring the court to invalidate that decision no matter how bad the case was. A person must have a chance to be heard.
It is important to note that if a party petitions the court for judicial review on the ground that he was not granted a fair hearing and should the court find that this person was not given a fair hearing, the court will declare the decision null and void.
11. IRRATIONALITY
Irrationality is derived from the word irrational. This means that if a decision making body or an administrative body acts irrationally, whatever that body does or whatever decision it makes can be invalidated upon judicial review.
Irrationality means conduct beyond the range of responses reasonably open to an administrative body. In determining whether a particular act or decision is irrational, a reviewing court will consider whether a public body has done something which a reasonable body with the same function and confronted with the same circumstances could not do. This is an objective test.
12. BAD FAITH (Mala Fides)
If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather hard to define bad faith but it covers a wide range of circumstances including malice, corruption, fraud, hatred and similar things. It also includes cases of vindictiveness.
Definitions:
Natural: Natural is being in accordance with or determined by nature i.e. based on the inherent sense of right and wrong.
Just: Means morally upright, correct, proper, good, merited deserved etc.
Natural Justice is the administration, maintenance, provision or observance of what is just, right,proper, correct, morally upright, merited or deserved by virtue of the inherent nature of a person or based on the inherent sense of right and wrong.
The principles of natural justice are rules governing procedure and conduct of administrative bodies. They were developed by the courts in England and imported into Kenya as part of common law principles.
Principles of natural justice are implied i.e. they are not expressed in a statute; they are supposed to apply in every case unless a statute expressly states that they will not apply.
Principles of natural justice are applicable in the absence of statutory provisions authorising their applicability or their observance. Unless the application of principles of natural justice is expressly or impliedly excluded by statutory provisions these principles are always to be implied. It is to be implied that parliament has authorised the applicability and observance of the principles of natural justice in every case.
To which bodies do the principles of natural justice apply?
In Kenya these principles apply so long as a public body has power to determine a question affecting a person‟s rights. The principles also apply to bodies in every case involving a question affecting a person‟s interest.
Wherever there is a right there is an interest but not vice versa. Interest may include other things. Interest may be pecuniary interest or something else and does not necessarily have to be a right.
In Mirugi Kariuki v. The Attorney General,the court of appeal held that the mere fact that the exercise of discretion by a decision making body affects the legal rights or interests of a person makes the principles of natural justice applicable.
These principles apply to administrative bodies that are judicial, quasi-judicial legislative or administrative.
3.3 THE PRINCIPLES/RULES
Broadly the principles are two
1. Nemo Judex in causa sua – which means that procedures must be free from bias.
2. Audi Alteram Partem – which means that no person should be condemned unheard i.e.a person should not be denied an opportunity to be heard.
These two principles have been broken down into a number of principles or rules which are as follows:
1. Rule against bias
2. The right to be heard
3. Prior notice
4. Opportunity to be heard
5. Disclosure of information
6. Adjournment
7. Cross examination
8. Giving reasons
9. Legal representation
1. RULE AGAINST BIAS
In summary there can be bias when:
a) There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest;
b) Where short of a direct interest there is a reasonable appearance or likelihood of bias;
c) Where there is actual bias.
In R v. Hendon Rural District Council ex-parte Chorley, the court quashed the decision of a Rural District Council allowing some residential property in Hendon to be converted into a garage and restaurant because one of the councillors who was present at the meeting which approved the application to convert the premises was an Estate Agent who was at the same time acting for the owners of the properties. The Court issued Certiorari to quash the decision of the council on the ground that the agent‟s interest in the business disqualified him from taking part in the council‟s consideration of the matter.
Concerning likelihood of bias, the case is Metropolitan Properties Ltd v. Lannon applies. The court quashed the decision of a rent assessment committee reducing rent of a certain flat because the chairman of the rent assessment committee lived with his father in those flats. In this case, the court said;
“… in considering whether there was a real likelihood of bias, the court does not look at the mind of the Chairman of the tribunal who sits in a judicial or quasi judicial capacity. The Court looks at the impression which would be given to other people. Even if he was as impartial as he could be nevertheless, if right minded people would think that in the circumstances there was a real likelihood of bias on his part then he should not sit. And if he does sit, his decision cannot stand. Surmises or conjecture is not enough there must be circumstances from which a reasonable man would think it likely or probable that it would or did favour one side unfairly at the expense of the other”.
2. RIGHT TO BE HEARD
This is simply that a concerned person must be given a right to be heard. If an administrative body fails to give a concerned person the right to be heard, whatever decision it makes will be invalidated upon review. The case that illustrates the point is the case of David Onyango Oloo v.The Attorney General, where the Commissioner of Prisons purported to deprive Onyango Oloohis sentence remission to which he was entitled under the Prisons Act without giving him an opportunity to be heard. Quashing the decision, Justice Nyarangi stated;
“… there is a presumption in the interpretation of statutes that the rules of natural justice will apply. In this case the rule in question was the one concerning the right to be heard.”
3. PRIOR NOTICE
This rule requires that adequate prior notice be given to a person of any charge or allegation. It simply means that if an administrative body makes a charge it has to give a person against whom allegations have been made adequate notice before a decision is made. Prior notice must be served on the relevant party. The notice must contain sufficient detail to enable the person concerned to know the substance of any charge, allegation or action to be taken against him.
Again the case of David Onyango Oloo applies here. In that case the court also stated
“The commissioner of prisons at the very least ought to have done the following acts:
i. Inform the Appellant in writing in a language the Appellant understands the disciplinary offence he is alleged to have committed and the particulars of the offence;
ii. Afford the Appellant an opportunity to be heard in person and to fix reasonable time within which the appellant must submit his written answer.”
4. OPPORTUNITY TO BE HEARD
There is no settled rule as to whether hearing should be oral or written but in all cases one must be afforded a chance to present his case whether oral or written.
5. DISCLOSURE OF INFORMATION
A concerned party must be given all information which the decision maker will rely on to make his judgment. This rule requires that all allegations and reports bearing on a person‟s case must be disclosed to that person. Failure to do so is fatal to a decision.
In Ridge v. Baldwin the House of Lords held that the Chief Constable of Brighton who held an office, from which by statutory regulations he could only be removed on grounds of neglect of duty or inability, could not validly be dismissed in the absence of the notification of the charge and an opportunity to be heard in his defence.
This is one of the key cases in Judicial Review and disclosure of information.
6. ADJOURNMENT
Natural Justice requires that a party be granted adjournment of a hearing of a case if the exigencies require (it does not matter how guilty a person is, if exigencies arise, they must be accorded an adjournment by the administrative body and if they are denied an adjournment and a decision is given, the court will quash such a decision)
Please note that wrongful refusal to adjourn amounts to a denial of a fair hearing and will result in the quashing of a decision. This was stated in the case of Priddle v. Fisher & Sons. A heating engineer was denied an adjournment in a case he was supposed to be represented by a trade union representative. The decision of the court arising out of the proceedings in the absence of the applicant was held to be unfair.
7. CROSS EXAMINATION
An opportunity to cross-examine can only be availed if there is an oral hearing i.e. the rule applies to cases where there is an oral hearing. Whenever there is an oral hearing and a party requests to cross-examine, the affected party must be granted an opportunity to cross-examine. If an affected party requests to cross-examine but an opportunity is denied, the decision made can be voided on grounds of breach of principles of natural justice.
Please note that if a party does not ask for a chance to cross-examine, he is precluded from complaining.
8. GIVING REASONS
Progressively, courts are insisting on giving reasons for a decision as a component for natural justice. (If an administrative body denies you lets say a licence, they must give you the reasons why failure to which you can petition the High Court for a review). In the case of Padfield v. The
Minister for Agriculture Fisheries and Food (1968),Lord Reid stated;
“I cannot agree that a decision cannot be questioned if no reasons are given”.
It means that if no reasons are given a decision can be questioned.
9. LEGAL REPRESENTATION
This does not apply in every case but in suitable cases and suitable circumstances, the right to representation by a lawyer or some other person may be part of natural justice. For example in the Liquor Licensing Act, it allows for a person applying for a licence to be represented by an authorised agent in which case he becomes the legal representative before the court.
Where legal representation is necessary, authorised and is requested by a party the right to legal representation must be granted. If denied, a decision may be quashed on grounds of failure to observe the principles of natural justice.
3.4 EFFECT OF BREACH OF PRINCIPLES OF NATURAL JUSTICE
The effect of failure to comply with the rules of natural justice is that any decision or other administrative action taken is null and void and can be invalidated by the courts. Breach of principles of natural justice has been a good ground of judicial review.
Please note that breach of any one of the rules that we have discussed will give rise to judicial review.
JUDICIAL REVIEW REMEDIES
There are only three remedies that the courts can grant for judicial review
Certiorari
Prohibition
Mandamus
Whether the courts will grant one of these rules depends on the circumstances.
1. CERTIORARI
The word Certiorari is a Latin word which simply means „to be informed‟. Historically it was a royal command or demand for information. The practice was that the sovereign who was the king or the queen upon receiving a petition from a subject complaining of some injustice done to him would state that he wishes to be certified of the matter and then he would order the matter to be brought up to him.
Ordering the matter to be brought up to him will include ordering that the records of the proceedings be brought up to the sovereign. The purpose of calling up the records was in order for the sovereign to quash any decision that has been made after acquainting himself of the matter in other words after being certified of the matter.
Currently, certiorari is an order to remove proceedings from an administrative body or an inferior court to the High Court in order to be investigated and if found wanting on any one of the grounds we studied including ultra vires, be quashed.
The order can issue against:
1. Administrative tribunals.
2. Inferior courts such as the industrial courts.
3. Local authorities.
4. Ministers of Government.
5. Miscellaneous public bodies exercising public functions.
In Majid Cockar v. Director of Pensions, a case between the former Chief Justice Cockar and the Director of Pensions, in computing the pension payable to the CJ the Pensions Department made a mistake in their calculations. The former Chief Justice went to court and upon application for Judicial Review. The court issued the order of Certiorari to quash the decision awarding the former CJ the amount of money as pension.
For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must be having Locus Standi which is crucial as you must have the capacity to sue.
A person has capacity to sue by having a sufficient interest in the matter. If you don‟t have sufficient interest in the matter, the court will not grant you any of the orders.
2. PROHIBITION
The order of Prohibition is one issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings. It will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made.
This order may be issued against:
1. A judicial body acting in an administrative capacity i.e. Industrial Court.
2. An administrative body performing administrative duties or against the government officials.
3. It can be issued to stop a public body from continuing proceedings that are ultra vires.
4. It can also be issued to stop an administrative body from continuing to do something in excess of jurisdiction.
5. It can also be used to stop an administration body from abusing their powers
In R v. Electricity Commissioners Ex parte Electricity Joint Committee (1924) Lord Denning stated as follows;
“It is available to prohibit administrative authorities from exceeding their powers or misusing them.”
Lord Atkin in the same case stated that
“If proceedings establish that the body complained of exceeded its jurisdiction, by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that Prohibition will lie to restrain it from exceeding its jurisdiction.”
This illustrates the point that prohibition will lie to restrain an administrative body from doing something wrongly or misusing its power, abuse of power etc.
When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made. At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application.
With Prohibition, you do not have to attach the copy of the order.
3. MANDAMUS
The order of Mandamus is derived from the Latin word “Mandare” meaning “to command”. It is a court order issued to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty.
Mandamus issues where there is a duty imposed by statute or common law.The duty must bea public duty.Mandamuswill not issue in respect of a duty that is of a private nature even if thebody in question is a public body.
For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court, the industrial court will be performing a private function and thus the order of Mandamus cannot issue.
For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored.
This means that if a public administrative body refused to do something, you must approach it and request it to perform the function or the courts will not hear you. Unreasonable delay on the part of the public body will be treated as refusal.
The duty must be a specific duty. You cannot apply for the order of Mandamus for a duty that is general, it must be specific.
Mandamus is used to enforce performance of specific duties and not the exercise of merepowers.
In Daniel Nyongesa & Others v. Egerton University College (1989), Nyongesa‟s exam results were held by the university and when he went to court, the court issued an order of mandamus for the court to release the results. Nyongesa had requested the University for his results and they had refused so he applied for an order of mandamus to the court and he was granted. There was a specific duty for the university to release the results.
