Contents

QUESTION The courts should draw the limits to discretion power in a way which strikes most suitable
balance between executive efficiency and legal protection of the citizens Discuss above statement.......2
DEFINITION OF DISCRETIONARY POWER.......................................................................2
CONFLICTING DUTIES OF THE COURT...........................................................................3
Examples of Principles and how Courts have enforced them to ensure balance.................................3
Legality......................................................................................................................... 3
Reasonableness............................................................................................................ 3
Irrationality.............................................................................................................. 4
Rule of Law................................................................................................................ 5
Proportionality............................................................................................................. 5
Public Participation....................................................................................................... 5
Supremacy of the Constitution................................................................................6
Legitimate Expectation...................................................................................................... 6
Accountability............................................................................................................. 8
Nemo judex in causa sua (or nemo judex in sua causa)..........................................................8
Conclusion..................................................................................................................... 9

Group 2

Group 2

QUESTION The courts should draw the limits to discretion power in a way which strikes most
suitable balance between executive efficiency and legal protection of the citizens Discuss above
statement
DEFINITION OF DISCRETIONARY POWER
The above term has been defined differently by different scholars as follows;
Definition by S.H.Bailey
By discretion power we mean the situation where a body has a power of choice, to do X or not
do X; or to do X and /or Y or do neither.1
Definition by Grey,J.H
Discretion may be best defined as the power to make decision that cannot be determined to be
right or wrong in any objective way.2
Definition by Lord Diplock
The very concept of administrative discretion involves a right to choose between more than one
possible course of action upon which there is room of reasonable people to hold differing
opinions as to which is to be preferred.
Definition by Lords Hulsbury
Discretion means when it is said that something is to be done according to the rules of reason and
justice not according to private opinions, according to law and not according to humor. It is to be
not arbitrary, vague and fanciful but legal and regular and must be exercised within the limit to
which a honest man competent to the discharge of his office ought to confine himself.
Definition by C.J Coke
Discretion is a science or understanding to discern between falsity and truth, between right and
wrong, between shadows and substance and colorable glosses and pretenses and not according to
their wills and private affection and opinions.
Universal definition, which is Definition According to Blacks Law Dictionary
Discretion power is one which is not imperative or if imperative, the time, manner or extent of
execution of which is left to decision makers discretion.1
11S.H.B.Bailey, Cases, Materials and Commentary on Administrative Law2http://digitalcommons.osgoode.yorku.ca/ohlj/vol17/iss1/3
3Black Law Dictionary

CONFLICTING DUTIES OF THE COURT

There are is public interest underlying every discretionary power given to an authority, which is
being zealously guarded, whereas at the same time there a private interest on the rights of the
accused. Given these bi-polar consideration it is imperative for courts to balance imperative
consideration or to strike reasonable balance between individual interest and those of public.
To ensure this balance, courts of Kenya have adopted the principle that the giver of power
cannot issue it to be abused but to be used properly according to its intention thus gives it with
limitations. The limitation here are principles laid down by various sources of law for the
guidance on the use of discretionary power and which the courts have assumed the duty to
enforce.
Examples of Principles and how Courts have enforced them to ensure balance.
Legality
This principle requires all laws to be clear, Ascertainable and non-retrospective and all persons
who hold discretionary power to apply law when making decisions.
Failure to act within the law makes a good ground for judicial review which may lead to a
decision being quashed.
In the case of Meixner and Another v. A-G [2005]2KLR189
Held:
The A.G is not subject to any other person or authority in exercising the discretion. Indeed the
high court cannot interfere with exercise of the discretion if the holder is acting lawfully. The
high court can however, interfere with the exercise of the discretion if the A.G in prosecuting the
appellants is contravening their fundamental right and freedoms enshrined in the constitution.
Reasonableness
It is a requirement that executive in exercising discretionary power should be reasonable.
Court do not Interfere with situation where a body act reasonably.
In Wednesbury case the court held that facts presented before it could not prove
unreasonableness thus no reason to interfere with the decision.
Test for reasonableness was established in the famous case of Associated Provincial Picture
House Ltd v Wednesbury Corporation.
Lord Greene established three test of reasonableness as follows;

Cases where body takes into account factors ought not to

have been taken into account (acting ultra vires).
Cases where agency fail to take into account what it ought
to have taken into account.
3

When the decision is so unreasonable that no reasonable

authority would have considered to impose it (Being
irrational).

Cases where body takes into account factors ought not to have been taken into account.
Kuria v A.G [2002] KLR69
Held:
The court has power and indeed the duty to prohibit the continuation of criminal prosecution if
extraneous matters divorced from the goals of justice guide their instigation. It is the duty of the
court to ensure that its process does not turn into tools for personal score settling or vilification
on issues not pertaining to that which the system was even formed to perform.
The concept in the above case apply not only to courts prescribed herein but to all those whose
hold discretionary power.
In cases where an agency fail to take into account matters it ought to have taken into
account.
Republic v Ministry of Finance and another
Held:
Good public administration requires a proper consideration of the public interest there is
considerable public interest in empowering the public to participate in the issue.
Irrationality.
When the decision is so unreasonable that no reasonable authority would have considered to
impose it.
Irrationality can be divided as follows;
Without conceivable justification.
Violated basic judicial values by imposing excess burdens upon individuals.
By using administrative powers for purpose of punishment.
Without conceivable justification also means without giving reason.
Where a body acted in this manner, it is presumed that the decision was bias thus
reasonable reason could be deduced.
In the case of
Ndungu.

County Government of Nyeri, Governor Nyeri County v Cecilia Wangechi

The act by the Applicant 2 of dismissing the respondent herein was held to infringe on
respondent right to be given reason under the constitution.
Imposing excess burdens upon Individual
4

Zechariah Wagunza and others v Kenyatta University

A student was subjected to greater punishment than his colleagues whom they were suspected to
have stolen the lectures laptop.
Held
Court held that that was irrational and quashed the decision.
Lord Greene pointing at the case in Short v. Poole where a lady teacher was dismissed for having
red hair said that the decision was not only unreasonable but also considered the external
factors.
Rule of Law
The principle of rule of law requires all persons to be subjected to the same judicial process
despite age, sex among others. In the case of
Paul Imison V A.G and 3 Others Nairobi HCMCA No.1604 of 2003
Stated; I dont think the that our constitution which is one of the democratic state would
condone or contemplate abuse of power .The A.G in some of his constitutional functions does
not perform public duties and if he were to be found wanting in carrying them out or failing to
perform them as empowered by the constitution or any other law. I see no good reason for
singling him out and failing to subject him to judicial review just like any other public official.
Proportionality
The principal was defined by Committee of Ministers of the council of Europe as an appropriate
balance must be maintained between the adverse effect which an administrative authority
decision may have on the right, liberties or interests of the person concerned and the purpose
which the authority is seeking to pursue. Republic v Judicial Commission of Inquiry into the
Goldenberg affair.
This principle requires decision makers to balance between means and objective. It was
previously said that the end does not justify the means.
Republic v. Judicial commission.
Public Participation
This principle embraces the following;
1. Duty to console
2. Accused being given prior notice of date of proceeding
3. Accused being given enough time to prepare to prepare his defense.
Importance of Public Participation
Matatiele Municipality and Others v President of the Republic of South Africa and Others 2
(supra)

public participation in governmental decision- making is derived not only from the belief
that we improve the accuracy of the decisions when we allow when we allow people to present
their side of the story, but also from our sense that participation is necessary to preserve human
dignity and self-respect.
By this, people likely to be affected by decision are able to listen to concerns, values and
preferences and consider these in shaping decision makers decisions and policies.
Where Public Participation is assumed.
Failure to consider public participation renders an Act or decision void.
Robert N.Gakuru and Others v. Kiambu County Executive Committees
Exodus of this case
Kiambu County Executive had prepared a policy which when represented before the Kiambu
County Legislature, was rejected. The Executive Committee thereafter met in a hotel to discuss
the rejected bill. They had published in a newspaper an invitation of the public to attend the
meeting three days before the meeting was held but, did not specify that it was the rejected bill to
be discussed. The bill contained section which were imposing tax on areas not within the
jurisdiction of the county government to impose and which were likely to affect the rights of the
members of Kiambu. They later published it. Plaintiff sued for judicial review.
Issue
Whether there was public participation
Hold
There was no public participation thus the Act was null and void.

Supremacy of the Constitution.

The Kenyan System is to be contrasted with the English position where parliament is the
supreme organ in the legal system. Under Article 2(1) and (4) Constitution declares itself
supreme law binding state organs at both devolved levels. It considers all laws inconsistent with
it void and act omissions contrary to its provisions invalid.
Legitimate Expectation
Definition
It exists where applicant is made to believe that there will be consultation before a decision is
made.
Where the Principle of Legitimate Expectation Arise?
i.
ii.

Where express promise is given on behalf of a public authority or

Where there is the existence of a regular practice which the claimant can reasonably
expect to continue.
6

In Council of Civil Service v Minister for the Civil Service

It was stated that where a decision maker unreasonably departs from publicly stated policy or
customary practice or reneges on earlier decision or undertaking thus confounding the
applicants legitimate expectations from the decision maker, then it can be argued that there
has been a breach of duty to act fairly.
Where a group has a legitimate expectation that they will be consulted by the decision maker
or if the decision maker has made a promise or an undertaking which the decision in question
will altar.
Courts stand on the Change of Legitimate Expectation
Courts do not prevent any public body changing its policy, so long as it does so in a proper
manner taking account legitimate expectations for consultation, an oral hearing or whatever
else is necessary to comply with the duty to act fairly.
Proof of Legitimate expectation by claimant
Republic v Devon County Council ex parte Baker (1999)
Claimants right will only be found to be established when there is a clear and unambiguous
representation upon which it was reasonable for him to rely. Then the administrator or other
public body will be held bound in fairness by the representation made unless only its promise
or undertaking as to how the power would be exercised is inconsistent with the statutory
duties imposed on it.Such promises should not be clear provision of the law or the
constitution.
Githunguri v Republic
The Githunguri case:
Background
Stanley Munga Githunguri had been charged with possession of foreign currency,
contravention of Exchange Control Act. Enquiries and full investigation were carried out.
Five years later the Attorney General after full consideration decided not to prosecute the
accused and closed all the files. Four years later after the assurance that the accused would
not be prosecuted, the charges were resurrected and the accused was charged again.
Held
Preferment of a charge five years after a decision by the office of the Attorney General not to
prosecute is: Vexatious and harassing, abuse of court process and contrary to public policy,
unless there were good and valid reasons for doing so.
Accountability
It is requirement that one must justify the act also known as obligation to explain or giving
reason.
7

What entails good justification?

-Intelligible reason
- Clear and related to the question in issue

Importance of Accountability
Improves efficiency and effectiveness of service delivery.
Prevents abuse of power and corruption
Keeps agency within legal bound.
Enhance trust and legitimacy.

Nemo judex in causa sua (or nemo judex in sua causa)

Latin phrase that means, literally, no-one should be a judge in his own cause. It is a
principle of natural justice that no person can judge a case in which they have an interest.The
rule is very strictly applied to any appearance of a possible bias, even if there is actually
none: "Justice must not only be done, but must be seen to be done.
Gladys Boss Shollei v Judicial Service Commission
Facts
The Applicant, who was at all material times employed as the Chief Registrar of the
Judiciary pursuant to Article 161 (2) (c) of the Constitution of Kenya, 2010 (hereinafter,
The Constitution). Respondent purportedly removed her as the Chief Registrar of the
Judiciary (hereinafter CRJ) without any reasons by a letter of the same date attached to the
petition. Respondent set out the reasons for her removal in a media release at its website, as
follows;
(i)

Incompetence;

(ii)

Misbehaviour;

(iii)

Violation of the prescribed Code of Conduct for judicial officers;

(iv)

Violation of Chapter 6 and Article 232 of the Constitution; and

(v)

Insubordination.

She was sent on a compulsory leave and the public was invited to lodge complaints against
her. This followed a meeting of the Judicial Service Commission (hereinafter JSC) held at
Mombasa on 17th August, 2013 in which the Petitioner, the Hon. the Chief Justice, the Hon.
the Attorney General and Hon. Justice Lenaola were absent. In fact the petitioner was not
invited. It was none the less resolved to remove the Applicant from her office.
Issue
Was the respondent bias?
Held
The respondent was bias.
This is the matter of absence of impartiality of the Respondent, and presence of real
and apparent bias as demonstrated firstly by the deliberations of the JSC meeting in
Mombasa on 17th August, 2013, where the decision to suspend and discipline the Applicant
was mooted in her absence and without invitation.
It was submitted that the meeting had no agenda to discuss the conduct of the
Applicant in the first place and that it was attended by a cluster of Commissioners who had in
the past demonstrated open bias against the Applicant.
43. That at the meeting of 18th August, 2013, where the decision to suspend and investigate
the Applicant was made, and the same group named herein before held sway to ensure that
the Applicant vacated office.
It is submitted that the named individuals were motivated by self-interest and not the
good of the Judiciary.
Conclusion
After observing the above question, I am convinced that the courts should and have drawn
effective limit to balance between executive efficiency and protection of the citizens as far as
Courts in Kenya are concerned. However, the major challenge remains a rhetoric question of
who oversees the overseer?2

24https://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

10

11