Does Your Organization Conduct Fair Administrative Action?

Parties: Republic v National Hospital Insurance Fund Board of Management & another, ex parte Law Society of Kenya [2019] eKLR

Date of Judgment: 25th February 2019

Court: In the High Court of Kenya at Nairobi

Administrative action, as defined in section 2 of the Fair Administrative Action Act, includes any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. In short, any action taken by an entity in which the rights of a person or of a group of people are affected (whether within or without the entity), amounts to administrative action.

The danger that entities face in this regard is not so much as to the legality of the administrative action they take, but as to the nature of the process undertaken. The implication of this is that courts will unwaveringly quash an administrative action due to improper procedure, regardless of the legality of the action itself.

It would therefore be worthwhile for your entity to review this summary of the court’s decision in this matter and hence be informed concerning administrative action, its dos and its don’ts.

Background

On 22 February 2018, the National Hospital Insurance Fund released a peculiar directive; the Fund declared that marriage certificates that are commissioned by advocates will no longer be accepted. The effect of this directive, therefore, was that only magistrates and registrars of the High Court, the ELC and the ELRC would be allowed to commission marriage certificates. In light of this, the Law Society of Kenya (LSK) approached the High Court’s Judicial Review Division for orders of certiorari and mandamus (see table below).

Fair administrative action

Article 47(1) of the Constitution provides for the right to fair administrative action – stating that ‘…administrative action (must be) expeditious, efficient, lawful, reasonable and procedurally fair.’ Administrative action is also provided for in section 2 of the Fair Administrative Action Act. The provision states that administrative action includes acts or decisions of a body or an authority that affects the legal rights or interests of any person to whom the action relates.

Section 2 of the Oaths and Statutory Declarations Act gives the Chief Justice the power to appoint Commissioners for Oaths. By this provision, the CJ appoints advocates as Commissioners for Oaths. The OSD Act therefore grants all Commissioners for Oaths equal power to commission oaths. It is therefore a statutory right for all Commissioners of Oaths to be allowed to commission oaths – a right which cannot be limited without due process.

Judicial review

This is a legal remedy in which the court reviews the process by which a decision by a public body was made and whether the decision-making process followed the set legal requirements. Judicial review enables an applicant that is aggrieved by a decision of a body or authority to petition the court to review the decision-making process and hence determine the legality of the action.

If a JR application is successful and the court finds a breach of duty by a body, the court makes at least one of 3 possible orders:

 RemedyEffect of remedy
1.CertiorariThis is known as a ‘quashing’ order. Courts use it to abolish the decision made by the body, making the decision null and void.
2.MandamusAn order of mandamus is a directive from the Court to the body for the latter to take a certain positive action, e.g. an order for a body to produce certain documents to the public.
3.ProhibitionThis works literally – a body is prohibited by court order from taking certain actions.

The decision in: Republic v The National Hospital Insurance Fund (NHIF), 2019

Issue:      Could the NHIF ban advocates from commissioning marriage certificates?

The LSK argued that commissioning oaths is a statutory right and that the NHIF had no business creating exceptions, especially where statute has not created any. LSK contended that, even assuming that the directive by the NHIF was justified, they still did not follow procedural guidelines that a public body must abide by while making a decision that has effects on several stakeholders.

In its 37-page judgment, the Court predominantly sided with the LSK – agreeing with the lawyers’ body on all its assertions but one; a minor one, where the court differed with LSK’s submission that the NHIF directive was biased.

This did not have an effect on the overall decision, however. The Court stated that, before an administrative decision is made, the public body must ensure that one, the action is lawful – that is, permitted by law or a legal instrument. Secondly, the action must be reasonable – that is, it must be justifiable by the body or authority. Finally, the court stated that the decision must have gone through fair procedure – meaning that decisions that may result on a negative effect on people should not be made without consulting them at first.

In actual sense, even if an administrative action affects rights negatively, it can still be legal if it was arrived at procedurally.

This brings us to the highlight of the judgment, where Justice John Mativo provided the 5 mandatory procedural prerequisites to a body performing administrative action:

  1. Adequate notice of the nature and purpose of proposed action;
  2. Reasonable opportunity to make representations (e.g. raising objections, providing new info);
  3. Clear statement of the proposed action;
  4. Adequate notice of the right of review/ internal appeal; and
  5. Adequate notice of the right to request reasons.

Administrative action will only be held to be justifiable if the above steps were taken.

The NHIF Board did not take the above steps in performing their administrative action and the Court therefore quashed the directive by NHIF and ordered that they must accept marriage certificates commissioned by advocates. This was a relatively direct and simple judgment for the courts to make – the NHIF had erred hook, line and sinker; they had not carried out any due diligence on what it takes to make administrative decisions affecting thousands.

Further, the court warned public bodies such as NHIF concerning discretionary powers, noting that ‘discretionary powers are tricky – they must be consistent with a variety of legal requirements and subject to judicial control.’

All entities should therefore be cautious in order to ensure that administrative action is not only legal in terms of the end result, but that the process is procedural, fair and open.

By: Kirira Jeffrey

Junior Associate, Muma & Kanjama Advocates

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