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 authorizing their applicability or their observance.
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.
These principles apply to administrative bodies that are judicial, quasi-judicial legislative or administrative.
THE PRINCIPLES/RULES OF NATURAL JUSTICE
Broadly the principles are two
- Nemo Judex in causa sua – which means that procedures must be free from bias.
- 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:
- Rule against bias
- The right to be heard
- Prior notice
- Opportunity to be heard
- Disclosure of information
- Adjournment
- Cross examination
- Giving reasons
- Legal representation
RULE AGAINST BIAS
In summary there can be bias when:
- There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest;
- Where short of a direct interest there is a reasonable appearance or likelihood of bias;
- Where there is actual bias.
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.
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.
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.
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.
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.
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.
GIVING REASONS
Progressively, courts are insisting on giving reasons for a decision as a component for natural justice. (If an administrative body denies you let’s say a license, they must give you the reasons why failure to which you can petition the High Court for a review).
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 license to be represented by an authorized agent in which case he becomes the legal representative before the court.
Where legal representation is necessary, authorized 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.
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.
- 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:
- Administrative tribunals.
- Inferior courts such as the industrial courts.
- Local authorities.
- Ministers of Government.
- Miscellaneous public bodies exercising public functions.
- 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:
- A judicial body acting in an administrative capacity i.e. Industrial Court.
- An administrative body performing administrative duties or against the government officials.
- It can be issued to stop a public body from continuing proceedings that are ultra vires.
- It can also be issued to stop an administrative body from continuing to do something in excess of jurisdiction.
- It can also be used to stop an administration body from abusing their powers.
- 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 be a public duty.
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.
Mandamus is used to enforce performance of specific duties and not the exercise of mere powers.
