NAME: SHEILAH LAVENDA SHIVOGA

REG. NO: LLB/4492/23

COURSE NAME: ADMINISTRATIVE LAW
COURSE CODE: FLB 207
COURSE DIRECTOR: DOCTOR MUNENE
DATE: MAY 12, 2024

QUESTION: Question 1 It has been argued the Constitution 2010 constitutionalizes

administrative law with the effect that administrative law as known to English law and adapted
and applied by Kenyan courts has been subsumed by constitutional law in Kenya. An analysis of
the various strands of thought on the subject explains the nature of administrative law in Kenya
post-2010 It has been argued the Constitution 2010 constitutionalizes administrative law with the
effect the administrative law as known to English law and adapted and applied by Kenyan courts
has been subsumed by constitutional law in Kenya. An analysis of the various strands of thought
on the subject explains the nature of administrative law in Kenya post-2010. (20mks)
Question 2.With the aid of case law, illustrate the importance of public participation in
the administration of the tax law regime in Kenya [20 marks]
 Question 1
Administrative law is regarded as the area of law concerned with the control of governmental
powers. It is that section of public law that governs the organization, powers, and actions of the state
administration. In real terms, these refer to powers derived from, or duties imposed by, statute law
primary and subordinate; and some aspects of the constitution that regulate the interaction between the
citizen and the state bureaucracy. One key function of administrative law is thus to control decision-
making based on these powers, whether at the level of the national government or the level of devolved
government.
Administrative law embodies general principles that can be applied to the exercise of the powers
and duties of authorities to ensure that the myriad of rules and discretionary powers available to the
executive and other public decision-makers conform to basic standards of legality and fairness. The
ostensible purpose of these principles is to ensure that, as well as observance of the rule of law, there is
accountability, transparency, and effectiveness in the exercise of power in the public domain. Certain
functions and characteristics of administrative law flow from the above, broad, definition: It has a control
function, acting in a negative sense as a brake or check concerning the unlawful exercise or abuse of
governmental or administrative power; It can have a command function by making public bodies perform
their public duties, including the exercise of discretion under a statute; It embodies positive principles to
facilitate good administrative practice, for example in ensuring that the rules of natural justice or fairness
are adhered to; It operates to provide for accountability and transparency, including participation by
interested individuals and parties in the process of government; It may provide a remedy for grievances
occasioned at the hands of public authorities.
Constitutional Principles and Values with Implications for Administrative Law
The constitution of Kenya 2010 is hinged on certain basic principles. These are evident in Article
10 of the Constitution. The principles are justiciable in the sense that any law or conduct inconsistent with
them may be declared invalid. But these basic principles do more work than this. They tie the provisions
of the Constitution together and shape them into a framework that defines the post-2010 constitutional
order. The basic principles therefore influence the interpretation of other provisions of the Constitution
and the law which has to be interpreted consistently with the values and principles of the Constitution. In
Communications Commission of Kenya & others v Royal Media Services and Others, the Supreme Court
observed in paragraph 368 that: “The Constitution itself has reconstituted or reconfigured the Kenyan
state from its former vertical, imperial, authoritative, non-accountable content under the former
Constitution to a state that is accountable, horizontal, decentralized, democratized, and responsive to the
principles and values enshrined in Article 10 and the transformative vision of the Constitution. The new
Kenyan state is commanded by the Constitution to promote and protect values and principles under
Article 10.
Article 47 entrenches a fundamental right to fair administrative action. The entrenchment of
fundamental principles of administrative law in the Constitution and the Bill of Rights must be seen
against the background of a long history of abuse of governmental power in Kenya. The range and scope
of the discretionary power of government officials were expanded by legislation. The courts’ common law
authority to review the exercise of that discretion has not been effectively deployed to constrain
administrative powers. The Constitution seeks to cure this by protecting the institution of judicial review
of administrative power from legislative interference while providing individuals with justiciable rights to
claim relief from the effects of unlawful administrative action. The Constitution requires the
administration to act by fundamental principles of justice, fairness, and reasonableness. It prohibits the
legislatures from allowing any departure from these principles and requires parliament to enact legislation
to govern the performance of administrative action and judicial review of it.
Before the Constitution 2010, the superior courts possessed a common-law power to review
administrative action. The body of legal principles and rules developed by courts in the course of their
application of this power is referred to as administrative law. When administrative officials or bodies went
beyond their statutory powers, failed to perform their statutory duties, or otherwise failed to meet the
standards imposed on them by law, aggrieved persons could challenge their actions and decisions in the
superior courts using an application for judicial review. The Constitution 2010 has brought in a new era of
administrative law. The review power of the courts is no longer grounded in the common law but instead,
the Constitution has itself confers fundamental rights to administrative justice.
Majanja J. captured this shift in the case of Dry Associates Ltd v Capital Markets Authority and
Another, Petition No. 328 of 2011, as follows: Article 47 is intended to subject administrative processes to
constitutional discipline hence relief for administrative grievances is no longer left to the realm of
common law but is to be measured against the standards established by the Constitution.
In the case of Republic v Kenya Revenue Authority ex parte Lab International Kenya Limited,
similarly observed that; The Common law in its evolution has defined the rules of conduct for a public
authority taking a public decision, entrusting the overall control-jurisdiction in the hands of the Courts of
law; but for Kenya a general competence of the Courts is now no longer confined to the terms of Statute
law and subsidiary legislation, but has a fresh underwriting in the Constitution of Kenya, 2010, Article 47
which imposes a duty of fair administrative action and Article 10(2)(c) demands, good governance,
integrity, transparency, and accountability. Majanja J held thus in the case of Moses Kiarie Kairuri & 4
others v Attorney General & 3 others: The Constitutional guarantee of the right to fair administrative
action is aimed at instilling discipline to administrative action so that the values and principles of the
Constitution are infused in matters of public administration.
In Judicial Service Commission v Mbalu Mutava & another, it was observed thus: Article 47(1)
marks an important and transformative development of administrative justice for, it not only lays a
constitutional foundation for control of the powers of state organs and other administrative bodies but also
entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative
action is a reflection of some of the national values in Article 10 such as the rule of law, human dignity,
social justice, good governance, transparency, and accountability. The administrative actions of public
officers, state organs, and other administrative bodies are now subjected by Article 47(1) to the principle
of constitutionality rather than to the doctrine of ultra vires from which administrative law under the
common law was developed.
In Gregory Magara Magare v University of Nairobi & another, Justice Mwita recognized the
elevation of fair administrative action from a common law entrenchment to a constitutional right. He
states thus: “The right to fair administrative action forms part of the Bill of Rights in the constitution,
which is a set of values and principles aimed at protecting everyone. These rights must be respected and
protected and may not be violated by any individual, institution, or government. The right to fair
administrative action is now anchored in the Constitution, the constitution has declared it a right and
everyone has to enjoy it just like any of the many fundamental rights in the Bill of Rights. This basic right
aims to ensure that government or institutional administrators fairly make decisions. Any contemplated
administrative action must therefore be subject to the constitutional standard set in Article 47(1). The right
to fair hearing which had its foundation in common law has attained a constitutional basis. It is now a
constitutional requirement that anybody who takes administrative action, must do so expeditiously, act
reasonably, and be procedurally fair. As a constitutional right, a breach of the right to fair administrative
action would amount to an infringement of fundamental rights and would attract sanctions just like a
breach of any of the other fundamental rights. This is so because the right to fair administrative action is
granted by the Constitution. Article 47(2) has gone further to demand that where a right to fundamental
freedom is likely to be adversely affected by administrative action, a person has a right to be given
reasons for the action. The Constitution recognizes that this right may be violated and has prescribed
measures that must be met to avoid infringement. Speed, procedural fairness as well reasonableness as the
hallmarks of fair administrative action must be the guiding principle whenever such action is to be taken,
as a way of ensuring that the person knows from the onset what action to expect and reasons for it.”
 Question 2
Importance of Public Participation in the Administration of the tax regime in Kenya
Article 201 (a) of the 2010 Kenyan Constitution emphasizes that there shall be openness and
accountability, including public participation, in financial matters. Public involvement ensures that
taxation decisions are made transparently and inclusively, aligning with the principles of good governance
and accountability. Additionally, public participation helps in shaping efficient financial management
systems for both national and county governments, ensuring transparency and standard financial reporting
By actively engaging the public in taxation discussions and decision-making processes, Kenya can
enhance the legitimacy and effectiveness of its tax policies, ultimately leading to better compliance and
revenue collection.
Section 221(5) of the 2010 constitution stipulates that the national assembly is to seek
representations from the public when it is discussing the government's annual estimates of revenue and
expenditure.it is through this that the national assembly adopts the annual finance bill.
The issue with public participation arises when a category or group of people is affected by the
newly introduced tax in the financial bill. A couple of cases have been used to show how this has led to
disputes and how they have been handled.
In Association of Gaming Operators-Kenya v Attorney General (2014) eKLR, the petitioners
claimed that the National Assembly failed to consult the gaming industry during the legislative process
that led to the Finance Act 2013. When the National Assembly was considering the bill, the petitioners
had written to the relevant committee indicating that the proposed introduction of a 20% withholding tax
on the winnings from betting and gaming was astronomical and prohibitive, and would have a long-
lasting and drastic effect on the gaming industry.
In Association of Gaming Operators-Kenya v Attorney General (2014) eKLR, the petitioners
claimed that the National Assembly failed to consult the gaming industry during the legislative process
that led to the Finance Act 2013. When the National Assembly was considering the bill, the petitioners
had written to the relevant committee indicating that the proposed introduction of a 20% withholding tax
on the winnings from betting and gaming was astronomical and prohibitive, and would have a long-
lasting and drastic effect on the gaming industry.
The committee did not give the petitioners an oral hearing to elaborate their views.
 The issue before the HC was whether the Finance Act 2013 was unconstitutional for want of
public participation. held: there was sufficient public participation and the petitioners were not entitled to
oral submissions before the committee.
An oral hearing is unnecessary in every situation and the legislature has wide latitude to
determine how to receive submissions. The court took the view that to satisfy the public participation
requirement, the National Assembly only needed to provide for some form of public participation,
including allowing the public to make written or oral submissions. it seems that the right to public
participation in the making of taxation laws and regulations is tenuous despite the Constitution of Kenya
mandating it.