Brief background;
1. The Interested Party was aggrieved by the fact that the Ex-Parte Applicant posted several images of her containing her personal data on its several social media platforms including Facebook, Tiktok and Instagram without her consent.
2. In a bid to secure redress, the Interested Party lodged a complaint with the Data Commissioner on 9th October 2023 who immediately thereafter notified the Ex-Parte Applicant of the complaint by a letter dated 15th November 2023 asking it to file a response within 14 days.
3. There being no response from the Ex-Parte Applicant, the matter proceeded as ODPC Complaint No. 1981 of 2023 culminating in an adverse decision against the Ex-Parte Applicant dated 6th January 2024.
4. The Ex-Parte Applicant is aggrieved that the Notice period that the Respondent issued to it was shorter than the period required under the Data Protection Act, 2019 (the Act) and the Regulations thereunder.
5. The Ex-Parte Applicant has filed an Application dated 9thFebruary 2024 that is the subject for determination wherein it is seeking the following orders:
1. THAT this Honourable Court be pleased to grant the judicial review order of Certiorari quashing proceedings in ODPC Complaint No. 1981 of 2023 and the consequential determination and/or decision dated 6th January 2024 in so far as it applies to the Ex Parte Applicant.
2. THAT this Honourable Court be pleased to grant the judicial review order of Prohibition to prohibit and/or restrain the Respondent and the Interested Party and/or anyone claiming under or through their authority including their officers, servant’s agent or anyone howsoever from enforcing the Respondent’s determination dated 6th January 2024.
3. THAT this Honourable Court be pleased to grant the judicial review order of Mandamus compelling the Respondent to conduct a fresh hearing and determination of the complaint against the Applicant and in strict observation of the Constitution and the law before making a determination.
4. THAT the costs of this application be in the course.
6. The Application is strenuously opposed vide Replying Affidavits sworn by Oscar Onyango Otieno (on behalf of the Respondent) and Nancy Wanjiku D. Mugo (the Interested Party), on 26th February 2024 and 16thFebruary 2024, respectively.
The Applicant’s case;
7. The Applicant’s case is that the process leading to the decision by the Respondent against it contravened the principles of good governance, and, it was tainted with illegality.
8. It believes that the notice that the Respondent issued to the Ex-Parte Applicant was shorter than the period required under the Data Protection, 2019 (the Act) and the Regulations thereunder.
9. The Ex-parte Applicant cites Section 58 (1) of the Data Protection Act, 2019 which provides that:
“Where the Data Commissioner is satisfied that a person has failed, or is failing, to comply with any provision of this Act, the Data Commissioner may serve an enforcement notice on that person requiring that person to take such steps and within such period as may be specified in the notice.”
10. It also refers to Section 58 (2) (c) which provides that “An enforcement notice served under subsection (1) shall specify a period which shall not be less than twenty-one days within which those measures shall be implemented.”
11. The Ex parte Applicant also refers to Regulation 11 (1) of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021 which states as follows:
“Upon admission of a complaint, the Data Commissioner shall notify the respondent of the complaint lodged against him, in Form DPC 3 set out in the Schedule and shall require the respondent to within twenty-one days;
(a) make representations and provide any relevant material or evidence in support of its representations;
(b) review the complaint with a view of summarily resolving the complaint to the satisfaction of the complainant; or
(c) provide a response with the required information.”
12. It is argued that the Respondent issued a 14 days’ notice that was not in the standard form DPC-3 which denied the Ex-Parte Applicant sufficient time to gather and prepare its defence within the 14 days.
13. Reliance is placed in the Court of Appeal decision in Nicholas Kiptoo Salat v IEBC & 6 others [2013] eKLR, where the Court held that courts must never provide comfort and cover to parties who exhibit scanty respect for rules and timelines.
14. The Applicant also relies on Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR, where the Court stated as follows at paragraph 23 of the judgment:
“Safeguarding legality is the most important purpose for the judicial review of administrative actions. Thus, a person seeking judicial review of an administrative decision must be able to persuade the court that there are grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there must always be the premise of “want of legality.” Differently stated, in response to a challenge to the legality of administrative action, courts generally need to consider the compliance with both substantive and procedural legal rules. This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures.”
15. The Applicant argues that the Respondent’s actions offended Articles 47 and 50 of the Constitution and section 4 (4) of the Fair Administrative Action Act of 2015, which provides that:
“The administrator shall accord the person against whom administrative action is taken an opportunity to– (a) attend proceedings, in person or in the company of an expert of his choice; (b) be heard; (c) cross-examine persons who give adverse evidence against him; and (d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.”
16. The Ex parte Applicant refers to the case of Sceneries Limited v National Land Commission [2017] eKLR, where the court held that;
“Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.” [Emphasis Ours].
17. The Court is said to have further stated as follows;
“The right of a person to defend him/herself in the face of a decision potentially affecting his/ her rights or interests necessarily implies that the person must receive prior notice of the facts on which the decision will be based. Failure to give proper notice is itself a denial of natural justice and of fairness. The notice must be communicated to the interested party, preferably in writing. In addition to specifying the date and place of the hearing, the notice must be sent in a timely manner (i.e., sufficiently in advance of the hearing), adequately describing the relevant facts and allegations so that a party may respond to them and outlining who will be present at the hearing, what the hearing will entail and the possible effects the decision may have on the rights and interests of the person.”
18. The Applicant is aggrieved since the Respondent did not inform the Ex-Parte Applicant of when and where the complaint against it would be.
19. The Court is said to have cited in Sceneries Limited (supra),with approval, the decision in R. vs. Ontario Racing Commissioners, where Justice Haines emphasized that a notice that complies with the principles of natural justice means: -
“a written notice setting out the date and subject-matter of the hearing, grounds of the complaint, the basic facts in issue and the potential seriousness of the possible result of such hearing.
20. The Applicant further argues that the decision arrived at by the Respondent is irrational and arbitrary and cites Section 63 of the Act which states that:
“In relation to an infringement of a provision of this Act, the maximum amount of the penalty that may be imposed by the Data Commissioner in a penalty notice is up to five million shillings, or in the case of an undertaking, up to one per centum of its annual turnover of the preceding financial year, whichever is lower.”
21. It is the Applicant’s case that the Respondent is required, when determining the penalty to issue to any undertaking such as the Ex Parte Applicant to determine one per centum of its annual turnover for previous financial year and apply the same as the penalty where it does not exceed five million.
22. It the Ex Parte Applicant’s case that 1% of its annual turnover is extremely lower than the penalty of Kshs. 750,000 issued to it. Further that the Ex Parte Applicant is a small starting up company with a low annual turnover.
23. Reliance is placed in the case of Hopewell High School Limited V Ministry Of Education & 2 Others [2012] eKLR, where the Court stated:
“Turning to the crux of this application, an order of Certiorari is intended to quash a decision made by a body without or in excess of jurisdiction or without compliance with the rules of natural justice.”
24. The Ex-Parte Applicant believes it has demonstrated that the decision by the Respondent was arrived at without due regard to the applicable law and rules of natural justice.
25. On the issue of prohibition reliance is placed in the BLACK’S LAW DICTIONARY 9th Edition, the remedy of prohibition “arrests the proceedings of any tribunal, board or person exercising judicial functions in a manner or by means not within its jurisdiction or discretion”.
26. The Applicant is urging this court to issue an order to prohibit the Respondent and the Interested Party from enforcing the decision in ODPC Complaint No. 1981 of 2023 dated 6thJanuary 2024.
27. In arguing the grant of the Order of Mandamus, reliance is placed in the case of Republic vs Kenya National Examinations Council exparte Gathenji and 9 Others, [1997] eKLR.
The Respondents case;
28. The Respondent maintains that the determination dated 6th January 2024,was in substance expeditious, efficient, lawful, reasonable and procedurally fair, for the following reasons:
i. The Determination was issued within the 90-day statutory limit stipulated under Section 56 (5) of the Act;
ii. The Determination was issued under Regulations 14 (1) and (2) of the Enforcement Regulations, was therefore as a result of the Interested Party’s complaint as received, and investigations conducted by the Office;
iii. The Ex-Parte Applicant has not shown or tendered evidence to show that the Determination dated 6thJanuary 2024, is tainted with illegality, irrationality, procedural impropriety and unreasonableness, so as to warrant the orders sought;
iv. The Ex-Parte Applicant has not proved that the Determination dated 6th January 2024 was arrived after considering irrelevant or extraneous matters, besides the evidence and documents produced by the then parties to the complaint; and
v. The Ex-Parte Applicant has neither proven nor alleged any ingredients of apparent bias, violation of the principles of natural justice and failure of the Respondent to deliver substantive justice.
29. It is its case that all matters generally relating to evidence are within the purview of the Evidence Act, cap. 80, Laws of Kenya. To this end, Sections 107(1), (2) and 109 of the Evidence Act, require whoever desired any court to give judgment as to any legal right or liability and depended on the existence of facts, he or she had to prove that those facts existed.
30. The Respondent places reliance in the case of M’Bita Ntiro v Mbae Mwirichia & another (2018) eKLR and Pastoli -vs- Kabale District Local Government Council and others [2008] 2 EA 300.
31. The Respondent is of the view that The Ex-Parte Applicant did not elaborate the particulars of the alleged violations.
32. It is also their case that if a decision-maker has determined that a particular consideration is relevant to its decision, it is entitled to attribute to it whatever weight it thinks fit, and the courts will not interfere unless it has acted in a “Wednesbury unreasonable” manner as was held by Mativo J. (as he then was) in Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR at para 64.
33. It is its case that no justifiable reasons have been advanced by the Ex-Parte Applicant to demonstrate that the Respondent acted in a “Wednesbury unreasonable” manner in the determination dated 6th January 2024.
34. The Supreme Court’s pronouncement on jurisdiction in Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR at paragraph 68, is also refered to on the fact that the Respondent draws its jurisdiction from the Act and the attendant regulations.
35. The Respondent argues that contrary to the Ex-parte Applicant’s assertions the following occurred:
i. It admitted the Interested Party’s complaint on 9th October 2023 in accordance with Regulation 6 of the Enforcement Regulations;
ii. It notified the Ex-Parte Applicant of the said complaint and requested them make representations backed by evidence and provide responses to the concerns raised in the notice, on 15thNovember 2023 in line with Regulation 11 (1) of the Enforcement Regulations;
iii. The above-stated letter was served upon the Respondent on 17th November 2023, a fact the Ex-Parte Applicant has not denied;
iv. It Communicated the consequences of non-compliance with the said notice to the Ex-Parte Applicant;
v. It issued the Determination dated 6th January 2024, under Regulations 14 (1) and (2) of the Enforcement Regulations, as a result of the Interested Party’s complaint as received, and investigations conducted by the Office;
vi. It issued the determination on 6th January 2024, well within the 90-day statutory limit stipulated under Section 56 (5) of the Act;
vii. It ordered for compensation of the Interested Party by the Ex-Parte Applicant due to the damage she suffered by reason of contravention of a requirement of the Act, in line with Section 65(1) of the Act.
36. The Respondent argues that it complied with the procedure stipulated in the Constitution, the Act and the attendant regulations in admitting, investigating and determining the complaint.
37. It is its case that the order for compensation is warranted.
38. The Respondent further submits that the object and purpose of ODPC under Regulation 3(a) of the Enforcement Regulations is to facilitate the fair, impartial, just, expeditious, proportionate and affordable determination of complaints lodged, without undue regard to procedural technicalities as further anchored in Article 159(2)(d) of the Constitution of Kenya, 2010.
39. It invites this Court to disregard the structures the Ex-Parte Applicant raises in light of the right of access to justice and promotion of the rule of law under Article 10(2) of the Constitution.
40. The Respondent’s case is that Regulation 11 of the Enforcement Regulations, is self-sufficient and self-executing as it sets forth the consequences for non-compliance with the notification issued under sub-regulation (1).
41. Further that when the Ex-Parte Applicant failed to respond to the notification dated 15th November 2023,the Respondent proceeded under Section 57 of the Act and Regulation 13 (1)(d) of the Enforcement Regulations.
42. The Respondent submits that the fourteen (14) days’ notice falls within the stipulated 21 days and in any event the Applicant did not request for additional time, if at all they felt that the fourteen (14) days they were granted were insufficient.
43. Reliance is placed in the case of India in Reserve Bank of India v Peerless General Finance and Investment Co. Ltd., 1987 SCR (2)1 where the Court expressed the need for a statute being looked at with the glasses of the statute-maker to ensure that no part of a statute and no word of a statute can be construed in isolation. The court further laid emphasis on statutes being construed so that every word has a place and everything is in its place.
44. The Respondent also refered to the case of Commercial Tax Officer, Rajasthan v M/S Binan Cement Ltd [2014] SCR, where the Court stressed the need to examine every word of a statute in its context and the use of context in its widest sense.
45. The Respondent invites the Honourable Court to read Regulations 11 and 13 conjunctively and give it its purposeful meaning within the prevailing context, and discard the Ex-Parte Applicant’s gimmicks which according to it overlook the object and purpose of the Act which is to safeguard the right to privacy under Article 31 (c) and (d) of the Constitution of Kenya, 2010.
46. The Respondent also submits that the Ex-Parte Applicant failed to prove that it sought and obtained express consent from the Interested Party to publish the said image on its social media sites after she requested it to delete the image(s) from the sites, hence the finding that they were using the Interested Party’s image for commercial gain without her consent, contrary to Section 37(1)(a) of the Act.
47. The Respondent’s argument is that it complied with Articles 47 and 50 of the Constitution, Section 4 of the Fair Administrative Action Act, and Regulations 6, 11, 13 and 14 of the Enforcement Regulations, based on the averments at paragraphs 15, 16 and 17 of the Replying Affidavit.
The Interested Party’s case;
48. The Interested Party opposes the application and it is her case that the Applicant had posted several images of her including personal data on its several social media platforms including Facebook, Tiktok and Instagram.
49. To demonstrate that the Applicant used her images and data for commercial use she extracted a copy of the Ex-parte Applicant's Facebook page which has over 11,000 followers that is used to promote its travel agency business.
50. It is her case that on 17th September 2023 she sent the Director concerned a text message on WhatsApp in protest and urging him to respect her privacy but this was ignored. She also made several calls to Wilfred Odinga, the Ex-parte Applicant's director on several occasions requesting him to pull down her images from Ex-parte Applicant's social media platforms which yielded no fruit.
51. Eventually she lodged a complaint with the Data Commissioner on 9th October 2023 after which the Respondent notified the Ex-parte Applicant of her complaint by a letter dated 15th November 2023.In its determination the Respondent awarded her compensation.
52. According to her, the Office of the Data Commissioner used the right procedures to inform the Ex-parte Applicant of her complaint and afforded the Ex-parte Applicant an opportunity to respond to her complaint which the Ex-parte Applicant chose to ignore.
53. It is also her case that the Data Commissioner did not contravene the provisions of Section 58(2) of the Data Protection Act, 2019 by requesting the Ex-parte Applicant to respond to the complaint within 14 days.
54. The Interested Party argues that Section 58(2) of the Data Protection Act does not apply to the duration of response to a complaint but rather to the duration of compliance to an "enforcement notice” issued by the Data Commissioner to a person who has failed or is failing to comply with any provision of the Act.
55. She argues that the Data Commissioner did not contravene the provisions of Regulation 11(1) of the Data Protection (Complaints Handling and Enforcement Procedures) Regulations, 2021 by requesting the Ex-parte Applicant to respond to the complaint within 14 days.
56. The Interested Party also argues that the said regulation requires a Respondenttoacomplaint to file his response/representation/relevant material or evidence in support of his representation within 21 days which in essence imply a reasonable or sufficient duration that does not exceed 21 days. It is also her argument that the 14 days afforded to the Ex-parte Applicant was reasonable and sufficient.
57. Further that the Ex-parte Applicant having acknowledged receipt of the request by the Data Commissioner to respond to the complaint within 14 days it should not have ignored to respond since the Data Commissioner letter had a rider that read as follows “Please note that failure to respond to this notification, the Data Commissioner shall proceed to determine the complaint in accordance with the Act and the Regulations”.
Analysis and determination:
58. From the material before court, the broad issues for determination are;
i. Whether or not this court carry out a merit analysis?
ii. Whether or not the applicant was denied the right to be heard?
iii. Whether or not the orders sought can be granted?
Can this court carry out a merit analysis;
59. The Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others it held that;
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded in paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action is taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
60. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules and is now entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
61. A party who invites the court to determine whether or not a right has been violated and or been infringed has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on.
62. In order to invoke the judicial review powers to do a substantive or a merit analysis of its case, the Applicant must demonstrate how their right was threatened or violated with precision so as to enable the Respondents to counter the allegation within Article 24 of the Constitution of Kenya.
63. The burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation within Section 107 of The Evidence Act.
64. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice, or damage.
65. An Applicant who is inviting or expecting the court to carry out a merit analysis must do so within the dictates of Section 11 of the Fair Administrative Action Act demonstrating through evidence that the Respondents violated the concerned rights.
66. Upon perusing the application, the verifying affidavit and the statutory statement this court has arrived at a conclusion that The Applicant is inviting the court to conduct a merit analysis.
67. The Respondent and the Interested Party have in the process of responding followed the same pattern to a big extent. It is this court’s finding that the Ex-parte applicant has not fulfilled nor met the minimum standards that would persuade this court to carry out a merit analysis and I so hold.
Was the applicant denied the right to be heard?
68. Regulation 11 (1) of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021 states as follows:
“Upon admission of a complaint, the Data Commissioner shall notify the respondent of the complaint lodged against him, in Form DPC 3 set out in the Schedule and shall require the respondent to within twenty-one days;
(a) make representations and provide any relevant material or evidence in support of its representations;
(b) review the complaint with a view of summarily resolving the complaint to the satisfaction of the complainant; or
(c) provide a response with the required information.”
69. In Nicholas Kiptoo Salat v IEBC & 6 others [2013] eKLR, the Court held that courts must never provide comfort and cover to parties who exhibit scant respect for rules and timelines.
70. In Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR, the Court stated as follows at paragraph 23 of the judgment:
“Safeguarding legality is the most important purpose for the judicial review of administrative actions. Thus, a person seeking judicial review of an administrative decision must be able to persuade the court that there are grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there must always be the premise of “want of legality.” Differently stated, in response to a challenge to the legality of administrative action, courts generally need to consider the compliance with both substantive and procedural legal rules. This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures.
71. Also, the Court in the case of Sceneries Limited v National Land Commission [2017] eKLR stated as follows:
“The right of a person to defend him/herself in the face of a decision potentially affecting his/ her rights or interests necessarily implies that the person must receive prior notice of the facts on which the decision will be based. Failure to give proper notice is itself a denial of natural justice and of fairness. The notice must be communicated to the interested party, preferably in writing. In addition to specifying the date and place of the hearing, the notice must be sent in a timely manner (i.e., sufficiently in advance of the hearing), adequately describing the relevant facts and allegations so that a party may respond to them and outlining who will be present at the hearing, what the hearing will entail and the possible effects the decision may have on the rights and interests of the person.”
72. Article 47 (1) of the Constitution states as follows;
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
73. Article 47(2) provides that “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
74. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under which section 4(3) provides as follows:
(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
1. prior and adequate notice of the nature and reasons for the proposed administrative action;
2. an opportunity to be heard and to make representations in that regard;
3. notice of a right to a review or internal appeal against an administrative decision, where applicable;
4. a statement of reasons pursuant to section 6;
5. notice of the right to legal representation, where applicable;
6. notice of the right to cross-examine or where applicable; or
7. information, materials and evidence to be relied upon in making the decision or taking the administrative action.
75. The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR the judge expressed himself as follows:
“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]
Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.
The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
The right to fair hearing is evidently closely intertwined with fair administrative action. The often-cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.
It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”
76. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
77. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem)are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.
78. In the instant suit, it is not in dispute that a 14 days’ notice was served upon the applicant.
79. The Respondent submitted that the Ex-Parte Applicant’s averment that the Respondent failed to adhere to the twenty-one-day statutory period prescribed in Regulation 11(1) of the Enforcement Regulations in the notification dated 15th November 2023, at paragraphs 7, 9 and 18 is unfounded and geared towards misleading this Court, as the fourteen (14) days they were granted fall within the stipulated 21 days; and the Ex-Parte Applicant neither responded to the allegations raised in the complaint, nor furnished proof of any request for additional time, if at all they felt that the fourteen (14) days they were granted were insufficient.
80. It is this court finding that in issuing the applicant 14 days to respond as opposed to the statutory 21 days the Respondent took away the Applicant’s right to be heard.
81. There is no justification as to why the Respondent issued 14 days’ notice as opposed to 21 days’ notice.
82. The respondent is a statutory body that must at all times comply with the regulations that govern how it conducts and handles disputes so as to be counted to be promoting fair administrative action and the rule of law.
83. The regulations have an elaborate and tight timeline that have to be complied with when determining complaints.
84. The 21 days is a mandatory requirement and the Respondent cannot exercise its discretion so as to create shorter timelines.
85. The 21 days provision creates a very critical moment which allows the respondent or the affected party to organize and prepare itself on how to respond to complaints.
86. It creates a window within which the party that is likely to be adversely affected by the decision prepares its defence, consults, and considers whether or not to engage in alternative dispute resolution mechanism.
87. Article 50 of the Constitution is partly realized through complimenting legislative and sub legislative provisions, rules and regulations like the Data Protection Regulations. Failure to adhere to the regulations detracts from the right.
88. The 21 days presents a critical window that allows the affected party to seek legal advice. It is the moment when corporate entities like the Respondent are likely to engage in board meetings, consult their insurance companies and assess the impact and the risk exposure that will flow from the outcome of the hearing process.
89. To take away such a right is illegal and the same violates and offends the right to fair administrative action which must not be allowed.
90. To allow that would lead into mayhem and anarchy because in no time the Respondent will issue seven days and ultimately not even issue any notice to Respondents.
91. That must not find room in a democratic system that believes and respects the rule of law. This court has a duty to promote, protect and fulfill the right to fair hearing and fair administrative action under the Bill of rights which I hereby do.
92. In the upshot, I find that all the action that was taken by the respondent pursuant to and flowing from the ailing Notice amounts to an irregularity and an illegality.
93. The impugned decision no longer has a legal consequence owing to the infraction and the violation of Article 47 and Article 50 of the Constitution,2010 and I so hold.
Can order of Certiorari issue;
94. In the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300,it was held that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
95. Section 4 The Fair Administrative Action Act,2015 provides thus;
“Administrative action to be taken expeditiously, efficiently, lawfully etc.
1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
96. Section 4(6) provides thus; “Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure”.
97. In the instant suit, it is this court's finding that there was non-observance of the Rules of Natural Justice on the part of the Respondent who failed to act with procedural fairness towards the Applicant.
98. The Respondent failed to adhere and observe procedural rules expressly laid down in a Statute or Legislative Instrument by which such authority exercises jurisdiction to make a decision and the Applicant is entitled to an Order of Certiorari and I so hold.
Can the order of prohibition issue;
99. In order to determine this issue, I am guided by the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, where the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
100. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order of prohibition may issue as follows;
“What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”.
101. In the instant suit, having found that the respondent acted illegally, this court finds that an order of prohibition must be issued and I hold as such.
Can the Order if Mandamus issue;
102. The Court of Appeal while addressing its mind on the scope and efficacy of an Order of Mandamus in the case of Kenya National Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & Another stated as follows;
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
“At paragraph 90 headed “the mandate” it is stated:
The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.
“What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
103. Having found that the Respondent acted illegally this court finds that the applicant has made out a case for the grant of an order of mandamus compelling the Respondent to conduct a fresh hearing and determination of the complaint.
Is the Applicant entitled to costs?
104. The Applicant is entitled to costs in this case. In arriving at this finding, this court is guided by the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012 [2014] where the Court reiterated that costs follow the event.
Disposition:
The Ex-parte Applicant has made out a case that it is entitled to the Judicial reviews orders as sought.
Order;
1. An order of Certiorari is hereby issued quashing the proceedings in ODPC Complaint No. 1981 of 2023 and the consequential determination and/or decision dated 6th January 2024 in so far as it applies to the Ex Parte Applicant.
2. An order of Prohibition is hereby issued prohibiting and/or restraining the Respondent and the Interested Party and/or anyone claiming under or through their authority including their officers, servant’s agent or anyone howsoever from enforcing the Respondent’s determination dated 6th January 2024.
3. An order of Mandamus is hereby issued compelling the Respondent to conduct a fresh hearing and determination of the complaint against the Ex-parte Applicant and in strict observation of the Constitution and the law before making a determination.
4. The rehearing shall be completed within 45 days of today’s date.
5. Costs to the Applicant.