NATURAL JUSTICE

Natural justice embodies the fundamental principle that all individuals are entitled to fair treatment
and due process under the law. It is rooted in the principles of equity, fairness, and the protection of
individual rights, and serves as a guiding light in legal and administrative proceedings, ensuring that
decision-making processes are transparent, unbiased, and accountable.

They are vital in ensuring administrative decisions are just.

Under public law the concept of natural justice entails two procedural ideas namely:

(i) ‘Audi alteram partem’ – meaning that no man shall be condemned unheard or
simply referred to as ‘The right to be heard’
(ii) ‘Nemo judex in re causa sua’ – meaning no man should be a judge in his own
cause and simply referred to as 'The rule against bias.'

THE RIGHT TO BE HEARD

This rule imposes a peremptory duty on every person, body or tribunal vested with the authority of
resolving a dispute to fairly hear both parties and consider both sides of the case before making a
decision.

a) Prior Notice

Before adjudication commences,the tribunal should notify the affected party of the case against him
in advance to give him sufficient time to prepare himself and defend himself.

Any hearing done without due notice violates the principles of natural justice and is null and void and
will be quashed by the court if the affected person applies on the ground that there was no prior
notice.

Section 4(3,a) of the Fair Administrative Action Act1 states that a prior and adequate notice of the
nature and reasons for the proposed decision should be given where an administrative action is likely
to affect the rights of a person.

b) Adjournment

1
Section 4(3,a) of the Fair Administrative Action Act
Evidence Act
Fair Administrative Action Act of 2015
The context in law is when opportunity to adequately prepare and duly defend oneself makes it
inevitable that proceedings be adjourned in certain situations. When an adjournment is denied, it
results to a breach of natural justice since it deprives the applicant the right to a fair hearing.

Section 4(4,d) of the Fair Administrative Action Act2 states that an administrator shall accord the
person against whom an administrative action is to be taken an opportunity to request for an
adjournment of the proceedings where necessary to ensure a fair hearing.

In Re an Application by Evans Maina, the applicant had been charged with the offence of assault. He
instructed an advocate to represent him in the case. On the day fixed for the hearing of the case, the
advocate applied for an adjournment on the ground that he had to attend to the hearing of another
case in the High Court, whose hearing was fixed before he was instructed. The application for
adjournment was denied, Maina was convicted and sentenced to pay a fine of Kenya Shillings 150.
The appellate court ruled in favour of an application by Maina for the order of certiorari to quash this
decision on the ground that the denial of adjournment amounted to a denial of the right to be heard.

Adjournment will ordinarily be denied where a person had full knowledge of the case and had
adequate time to prepare his defence.

c) Cross-examination

A person affected by an administrative action should be given the opportunity to cross examine the
adverse party so as to rebut such evidence and materials presented against him.

Section 4(4,c) of the Fair Administrative Action Act3 provides that the administrator should accord
the person against whom an administrative action is to be taken an opportunity to cross examine
persons who give adverse evidence against him.

However, there are some exceptions when the rule cannot apply, for example, if it involves
jeopardising the safety of a witness’ person or property.

In cases where cross- of witnesses is permitted, it is not necessary to follow the procedure laid down
in the Evidence Act, unless the proceedings are those of a court of law.

d) Right to legal representationthe

2
Section 4(4,d) of the Fair Administrative Action Act
3
Section 4(4,c) of the Fair Administrative Action Act
Evidence Act
Fair Administrative Action Act of 2015
Section 4(3,e) of the Fair Administrative Action Act4 save success provides that a notice of the right to
Legal representation should be given to the person likely to be affected by an administrative action.

A person should be allowed to exercise his or her right to Legal representation.

e) Disclosure of information

Disclosure of information entails the right to know the opposing case. It enables the affected person
to have a fair and proper notice of the issues intended to be raised against him and prevents
surprises during proceedings.An authority cannot base its decision on a material or evidence which
the affected person has not been given a chance to see and rebut.

Section 4(3,g) of the Fair Administrative Action Act5 provides that where an administrative action is
likely to affect the rights of a person,the administrator should give the person affected by the
decision information, materials and evidence to be relied upon in making the decision or taking the
administrative action.

f) Giving of reasons for decisions

A decision made without giving reasons is likely to be subjected to judicial review as authority may
be accused of unreasonableness, ill motive and arbitrariness in its decisions. Giving of reasons also
enables the person affected by an administrative action to know why an administrative action was
taken and be able to file an application for review or appeal if he is not satisfied.

Section 6(2,a) of the Fair Administrative Action Act6 provides that the reasons for which an action
was taken should be given to the person materially or adversely affected by an administrative action
to facilitate his or her application for appeal or review in accordance with section 5.

g) Opportunity to be heard

The body empowered to decide a matter must afford the person against whom action is to be sought
to be taken, or whose rights are to be affected a real, reasonable and effective opportunity to defend
himself in a good atmosphere.He or she must be given adequate time to prepare his defence. During
hearing, the person should be granted a fair opportunity to present his case address issues relating
to the evidence brought against him.

4
Section 4(3,e) of the Fair Administrative Action Act
5
Section 4(3,g) of the Fair Administrative Action Act
6
Section 6(2,a) of the Fair Administrative Action Act
Evidence Act
Fair Administrative Action Act of 2015
Section 4(3,b) of the Fair Administrative Action Act7 provides that where an administrative action is
likely to affect the rights of a person, the administrative body should give the person affected the
opportunity to be heard and to make representations in that regard.

Section 4(4,b) of the Fair Administrative Action Act8 also provided for a right to be heard by an
administrator to the person against whom an administrative action is to be taken.

The opportunity to be heard also entails the information and materials brought before the
administrative body which is to be used as the evidence against him. In R v Architects Registration
Tribunal9,the court quashed the decision of the tribunal that had in its possession three letters
relating to the applicant which he had not been allowed to see.

h) Right to oral hearing

What determines whether the hearing should be oral or not is the provisions of the relevant statute,
the nature of the decision-making body and the nature of the decision being made.

Oral hearing should not be insisted on unless the statute prescribes so or refusal would occasion
substantive prejudice or injustice or would undermine the essence of the hearing.

Oral hearing cannot be insisted on unless it is provided by law. The necessity for oral hearing
therefore depends on the nature of the tribunal, the gravity of the issues at stake, the complexity of
the matters arising from the proceedings and the law applicable to the matter at hand.

i) Delegated decisions

Delegated decisions or divided responsibility occurs when decisions are not made by the person who
heard the evidence.Delegated of power is acceptable as long as the enabling statute permits such
delegation. Once authority has been delegated, the delegate should not delegate. Improper
delegation renders the decision of the delegate invalid. This was stated in the case of Allingham v
Minister for Agriculture, Fisheries and Food10.

The case of Local Government v Arlidge11 provides good authority for the proposition that where a
decision is to be made by an administrative body, it is not necessary for it to hear the parties
personally, hearing could be conducted by his officials.

7
Section 4(3 ,b) of the Fair Administrative Action Act
8
Section 4(4,b) of the Fair Administrative Action Act
9
R v Architects Registration Tribunal
10
Allingham v Minister for Agriculture, Fisheries and Food.
11
Local Government v Arlidge
Evidence Act
Fair Administrative Action Act of 2015
THE RULE AGAINST BIAS.

It is embodied under the common law principle that no person shall be a judge in a case in which
they have interest.This principle of natural justice imposes a requirement of impartiality in decision
making.It is a matter of public importance that judges and tribunals be free from bias.Section 7(2)
(a)12 sub section iv of the Fair Administrative Action Act states that someone may file a judicial review
as a ground if a decision or action was biased or may reasonably be suspected of Justice must not
only be done but seen to be done

Bias comes in three forms: pecuniary bias, personal bias and bias as to subject matter.

1. PECUNIARY BIAS

This arises in instances particularly where the decision making body or authority has a pecuniary
interest in the result of the case; pecuniary relating to money (financial/monetary interest). Any
judicial authority having any such interest is disqualified indefinitely from proceeding with the case.
The aim of disqualification is to crystalize everything that might bring suspicion or falter the trust of
decisions made by these authorities and bring forth the feeling of confidence in the administration of
justice, in so doing, playing a vital role to social order and security. As an example, London and North
Western Railway Co. v Lindsay13 , Lord Wenslydale refused to participate in the hearing of the appeal
because he was a shareholder of the Railway Company.

The pecuniary interest must be direct to be disqualified, because if otherwise indirect or remote of a
claim, the decision making authorities are not disqualified from dealing with a case, e.g., listening to
a tax evasion case on regard that the judge’s salary comes from taxes. This would render the court
system ludicrous.

2. PERSONAL BIAS OR RELATIONSHIP TO FAVOR

Arises in circumstances involving matters such as friendship or hostility or relationship between the
authority and the parties.The likelihood of bias means the suspicion of bias must be based on

12
Section 7(2,a) of the Fair Administrative Action Act
13
London and North Western Railway Co. v Lindsay
Evidence Act
Fair Administrative Action Act of 2015
reasonable circumstances which indicate that there is every possibility of occurrence of bias from the
perspective of a common man.

3. INSTITUTIONAL BIAS

It occurs where where the institution becomes the complainant, investigator, prosecutor and the
judge in a subject matter they are involved. This may also include some members of the institution
having interest in a particular matter and they proceed to adjudicate on the same. In such instances
they are perceived as biased and cannot be reasonably fair.An example is the case of Stephen
Nendela v County Assembly of Bungoma & 4 others14 where justice Mabeya ruled that the select
committee of Bungoma County Assembly could not be an impartial body or tribunal as contemplated
by article 50(1) of the constitution since it was the one that sanctioned investigations against the
petitioner and that its members were part of the assembly that would vote for his removal.

TEST OF BIAS

THE REASONABLE SUSPICION TEST

Reasonableness plays a vital role in the application of this test. The test presupposes that where the
statements or actions or positions of an adjudicator causes a reasonable person to think that there is
a real possibility of bias for or against a party in a case, they are disqualified. In the mind of a
reasonable man that the decision that had made by the justices or the judges on that case must be
what a reasonable man ought to do and also by what justice ought to be done, as stated by Hewart
CJ the case of R v Sussex Justice15, ex parte McCarthy, ’The answer to the question depends on what
actually was done, but on what might appear to be done.’ The decision of this case led to an
avalanche of cases in which verdicts were quashed on the ground that circumstances gave rise to a
suspicion of bias, even in circumstances where the suspicion was far-fetched, flimsy or fanciful.(slight
or unrealistic). This test is based on the premise that public confidence in the administration of the
administration of justice is more likely to be maintained. In a number of cases that followed
formulated the ‘real likelihood’ of bias test.

THE REAL LIKELIHOOD TEST

14
Stephen Nendela v County Assembly of Bungoma & 4 others
15
R v Sussex Justice
Evidence Act
Fair Administrative Action Act of 2015
It imposed a greater obligation on the person alleging bias on the part of a judge to strictly prove
such allegations. In the case of R v Barnsley16 ,Delvin J said that ‘real likelihood’ depends on the
impression which the courts get from the circumstances in which justices were sitting.. A real
likelihood of bias must be made to appear not only from the ,materials in fact ascertained by the
party complaining, but from such further facts as he might readily have ascertained and easily
verified in the course of his inquiries.

It was on this ground that in Metropolitian Properties Co. Ltd. V. Lannon17 the Court held that Lannon
was disqualified from sitting as Chairman of a Rent Assessment Committee because his father was a
tenant who had a case pending against that company, even though it was acknowledged that there
was no actual bias and no want of good faith on the part of Lannon

EFFECTS OF FAILURES OF NATURAL JUSTICE

Where an administrator does no observe or violates the rules of natural justice in his decision, the
decision is declared voidable.This means that the administrative action will be declared null and void
and of no legal effect if the affected person applies to court to quash the decision by the
administrator authority.

This was stated in the case of David Oloo Onyango v AG18 where the court of appeal held that denial
of the appellant of the rights to be heard as provided in section 53 of the Prison Act that no prisoner
shall be punished for a prison offence until he has had an opportunity of hearing the charge against
him and making his defence renders any decision made null and void ab initio.

A decision made in breach of the principles of natural justice is void as was stated by Lord Reid in
Ridge v. Baldwin19 ''Time and again in the cases I have cited it has been stated that a declaration given
without regard to the principles of natural justice is void…I see no reason to doubt these authorities.
The body with the power cannot lawfully proceed to make a decision until it has afforded to the
person affected a proper opportunity to state his case.’

CASELAWS

16
R v Barnsley
17
Metropolitian Properties Co. Ltd. V. Lannon
18
David Oloo Onyango v AG
19
Ridge v. Baldwin
Evidence Act
Fair Administrative Action Act of 2015
Republic v. Kenya Revenue Authority ex parte Yaya Towers Limited (2008)20

Background:

In this case, Yaya Towers Limited, a company operating in Kenya, challenged a decision made by the
Kenya Revenue Authority (KRA) regarding its tax liability. Yaya Towers disputed the amount of tax
assessed by the KRA, claiming that it had been calculated incorrectly.

Issues:

The key issue in the case revolved around whether the KRA had followed the principles of natural
justice in its assessment of Yaya Towers' tax liability.

Court's Decision:

The High Court ruled in favour of Yaya Towers, holding that the KRA had violated the principles of
natural justice in its handling of the tax assessment. The court found that Yaya Towers had not been
given adequate notice of the assessment or an opportunity to be heard before the assessment was
made final.

This failure to provide Yaya Towers with a fair hearing constituted a breach of procedural fairness.
The court held that the decision by the KRA was void.

The Supreme court in Nawab Khan V. State of Gujarat21 categorically held that an order which
infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity.

In conclusion,the principles of natural justice are importance because they ensure that administrative
actions or decisions are just and where they are violated by the administrative agencies,the affected
persons can apply for review or appeal which renders the decisions null and void as illustrated in the
cases above.

20
Republic v. Kenya Revenue Authority ex parte Yaya Towers Limited
21
Nawab Khan V. State of Gujarat
Evidence Act
Fair Administrative Action Act of 2015
Evidence Act
Fair Administrative Action Act of 2015