(ii)
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;
‘administrator’ means ‘a person who takes an administrative action
or who makes an administrative decision’.
195. The Court of Appeal in Civil Appeal 52 of 2014 Judicial Service
Commission vs. Mbalu Mutava & Another (2015) eKLR addressed
itself to Article 47 of the Constitution as follows: 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.
196. In South Africa, the Constitutional 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 ring-fenced the importance of fair
administrative action as a constitutional right. The Court referred to
Section 33 of the South African Constitution which is similar to Article 47
of the Kenyan Constitution. The Court expressed itself as under: 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
Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022
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