ADMINISTRATIVE LAW

Class Notes by Dr. Dwasi Jane © 2004

University of Nairobi

Administrative Law is the law relating to public administration. Administration is

the act of process of administering, which simply means it is the act of meting out,
dispensing, managing, supervising and executing etc.
It is the law relating to control of governmental power. It can also be said to be
the body of general principles, which govern the exercise of powers and duties by
public authorities.

The primary purpose of administrative law, therefore, is to keep the powers of

government within their legal bounds, so as to protect the citizen against their
abuse. Administrative law is also concerned with the administration and
dispensation of delivery of public services. However it does not include policy
making. Administrative is concerned with the government carries out its tasks.

What are the government tasks, delivery of public services such as health, security,
facilitating trade, arbitration of disputes, and collection of revenue. We are
concerned about various public institutes of the government, ministries etc.

Administrative law is the law relating to the executive branch of government. The
law deals with a variety of things i.e. the establishment of public authorities e.g.
the city council, establishment of public bodies and organs.

The nature of the tasks given to various public organs and public agencies.

The legal relationship between the public bodies themselves and also between the
public agencies and the public and between public agencies and the citizens.

Administrative Law is concerned with the means by which the powers and duties
of the various public agencies, public bodies and public institutes can be
controlled.

THE FUNCTIONS/PURPOSES OF ADMINISTRATIVE LAW

It ensures proper dispensation of services.

It seeks to protect citizens from abuse of power.

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The primary purposes of administrative law is
1. To keep the powers of government i.e powers of various public bodies
within their legal bounds, so as to protect citizens from their abuse.
Abuse of power can arise from either local authorities, ministers, local
authorities etc. either from malice, bad faith or even from the
complexities of the law.

2. There are duties placed in public bodies (public institutions) such that
another function of the law is to see that the duties are performed and
that the public agencies can be compelled to perform their duties where
there is laxity or where they refuse or otherwise fail to do so.

The course will cover

1. Structure and the constitution i.e. Make up of administrative institutions

bodies, agencies etc. e.g. local government and civil service.
2. The law relating to the functions powers and duties;
3. The law relating to the control of the exercise of those powers and
duties.

The laws include

1. Acts of Parliament; ie. Statutes creating and governing public agencies as
well as other statutes.
Local government Act
Civil Procedure
Official Secrets Act
Service Commission Act
Law Reform Act

2. The law will include common law and common law principle studies.
3. Judge made rules and doctrines as appear in court decisions on various
cases concerning public administration otherwise known as stare decisis
4. The Constitution; (the public service commission is a creation of the
constitution) the constitution in addition lays out the divisionaltutions
powers between various branches of the government. i.e. the Executive the
arm that carries out governmental functions. The constitution also creates
the Legislature it is the legislature that enacts the various statutes. The
constitution also provides for the control of the exercise of the powers of
public bodies and organs through the courts. It does this by establishing the
High Court and it also gives the High Court inherent powers over public
bodies. The High Court has a supervisory power over the constitution.
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HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:
IN ENGLAND
In England public administration by the government grew out of the necessity and
the realisation that it was the duty of the government to meet the needs of the
population and to provide remedies for social and economic evils of many kinds.

It was realised and indeed it was necessary that the government cares for its
citizens from the ‘cradle to the grave’ it was also realised that it was necessary to
protect the environment for the people, to educate them at all stages, to provide
medical services, to house them, to provide them with employment etcetera. The
needs were various. Little can be done merely by passing Acts of Parliament and
leaving it to the courts to enforce them. There are far too many problems of detail,
and far too many matters which cannot be decided in advance. There must be
discretionary power and if discretionary power is to be tolerable, it must be kept
under two kinds of control: political control through parliament, and legal control
through the courts. Equally there must be control over boundaries of legal power,
as to which there is normally no discretion. If a water authority may levy
sewerage rates only upon properties connected to public sewers, there must be
means of preventing it from rating unsewered properties unlawfully. The legal
aspect of all such matters are the concern of administrative law.

Some of the evils were pollution and industrial accidents that the government
needed to address.

Before mid 17th century in England the Justices of Peace were used for all
purposes of public administration upto the lowest level of authority. they received
instructions from the crown or the sovereign through the commissioners of assize
and conveyed instructions to the people.

They also received complaints from the citizens and conveyed those complaints to
the crown for redress through the commissioners. A star chamber was created to
punish those who disobeyed instructions from the King. They also punished those
against whom redress of grievances lay. The process was very long and
cumbersome and many grievances and needs remained without redress.

In those days the system of administration as it existed in England today did not
exist for example the power of the state or the power of crown could not be
challenged at an administrative level.

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A major change in the system of government occurred beginning in the mid 17th
century with the introduction of a representative system of government. Through
this system citizens could choose representatives to present their needs and
grievances to parliament for redress. Parliament responded by enacting a variety
of statutes establishing various governmental bodies, organs and offices to provide
various services, to control certain activities such as industrial processes in order to
prevent harm to citizens and to address many other kinds of grievances.

The creation of various public bodies, institutions and offices by statutes to provide
public services and to exercise controls meant that two things had happened, first
of all, the public bodies have been given various duties to perform and two, they
have been given powers to exercise their duties including discretionary powers.

The grant of power including discretionary powers creates the likelihood of abuse
of those powers. Secondly it is always possible for grievances to arise out of the
public duty to provide services for example where a body refused to deliver
services and this necessitated the law to govern the public bodies. The relevant
law governing all these aspects of public administration became known as
administrative law or law and administrative processes and this system of law was
introduced into Kenya through colonization in a gradual process which we shall
discuss shortly.

HISTORICAL DEVELOPMENT OF ADMINISTRATIVE LAW IN KENYA:

The system of administrative structures that exist today did not exist in pre-
colonial societies. There was also no system of ad law or customary ad law that
resembles the current system. The current administrative system with its system
of administrative laws only came with the advent of colonialism in the second half
of the 19th Century. In the pre colonial period, societies were of simple character
in the sense that they primarily sought to satisfy immediate basic needs. These
were food, shelter and security. Therefore the cultures and traditions of these
societies and religions which constituted their laws were built around food, shelter
and a quest for basic security. These were the primary needs that both the
pastrolists and the agrarian societies sought to satisfy. Even though their slightly
differing economic approaches dictated a somewhat differing kinds of polity
(societal political set-up)

Invariably systems of leadership existed among the different tribes in which the
political leadership was either entrusted with an age set and handed down from
generation to generation i.e. from one age-set to another as in the case of the
Kikuyu tribe or the system of leadership included a foremost leader, priests,
medicine-men or warriors as was the case with the Luo tribe. Some of the tribes
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such as the Kikuyu entrusted their political, judicial and religious functions and
(which formed the primary functions of their governance system to a council of
elders) this council of elders loosely comprised persons specialising in particular
matters according to knowledge and interest. For such communities the council of
elders made all the important decisions of common interests.

At a larger level constituting more than one community, political actions, main
military operations were conducted as directed by age-sets. At this level each
community spoke through a spokesman, who was not necessarily a chief but was
no more than the chairman of a territorial unit. They spoke on matters of concern
mainly food, shelter and security. Chiefs hardly existed.

For other tribes such as the Luo, public functions were conducted at the sub tribe
level. Below this sub tribe level was the clan. The sub tribe constituted a higher
council comprising the heads of clan. It was also comprising diviners, healers,
rainmakers and warriors. The council which was presided over by the foremost
leader of the sub tribe dealt with all important public issues and these were the
most important public issues, homicide, external aggression, law and order.
Matters concerning food shelter and land were dealt with at a clan level.

The political systems which also comprised some rudimentary administrative

elements were conceived and practiced in accordance with luo cultures and
supported not by a system of formal laws and public administration but by
various forms of religions, by culture, traditions and rituals of the tribes.

The traditional systems revealed a simple and relatively informal governmental

system, localised and apparently not designed for the modern states. In some
societies there was a remarkable overlap and fusion in the operation of the various
society institutions.

Nevertheless in all cases a framework of stability existed which even though

precarious framework which served the needs of the time by enabling each
community to meet their basic necessities and keep some kind of basic peace.

Traditional societies existed as they were until 1895 when the British government
declared a Protectorate status over the region over Kenya. The commencement of
the protectorate marks the beginning of direct British government administration
in the region. This was to see the importation of British system of governance
including its system of public administration.

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Between 1895 and 1897, the colonial government was mainly preoccupied with
boundary demarcations and territory acquisition such that by 1897 no
comprehensive system of formal administration of Kenya had been established.

African tribes remained subjects of their local leaders under the various political
systems of the tribes. Full jurisdiction over all the people in the region now Kenya
was not conferred on the protectorate until the passing of the East African Order in
Council in 1902.

The order empowered the British Commissioner who had been empowered to act
on behalf of the Queen in the region to make ordinances for peace, order and good
governance of all persons in the protectorate.

By the Order in Council of 1902, the High Court was established with full civil and
criminal jurisdiction and the establishment of the regular administration began.

This development was dictated in the initial years by the stronger private demands
of the growing European settlers. For the most part the new system of
Administrative government developed parallel to the ethnic system.

The first step in this development i.e. the development of a regular administrative
structure was the passing in 1902 of the Townships Ordinance, under which
Nairobi and Mombasa Townships were established. Further developments had
the effect of bringing native people physically and psychologically out of their
social culturally and political rootage. This included the passage of the Hut Tax
Ordinance in 1903 to provide funds to support the colonial government structure.
In the same vein a Legislative Council was established. The Legislative Council
was charged with making various ordinances and was comprised of the 3 people,
the governor and 2 other people.

Constitutional law and administrative law are subjects which interlock closely and
overlap extensively. The rule of law, for instance, is a basic concept which runs
through them both and which offers scope for political theory as well as for the
discussion of its practical features which will be found below. But other such
universals are not easily found in the field of administrative law, and the lack of
them limits the assistance which political theory can provide.

DUTIES OF THE TREASURER

1. He is the chief financial officer;
2. He is he financial adviser of the local authority to which he has been
appointed by the local government;
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3. He is charged with general responsibilities for all matters of finance and
accounts of the local authority;
4. He is the paymaster, he is in charged of salaries payments, services
rendered etc.
5. He is the Chief Accountant for Local Authority
6. He is the collector of funds of the local authority e.g. rates and rents;
7. He is responsible for the organisation of the financial department of the
local authority;
8. He is responsible for the maintenance of the Local Authorities
accounting systems;
9. He is responsible for the supervision of financial records;
10. He is responsible for the effecting of insurance for all departments of
local authority;
11. Responsible for prescribing account procedures for the local authority;
12. Responsible for investments of all monies not immediately required by
the local authority;
13. Responsible for management of all funds of the local authority and in
this respect if there any instructions from the finance committee;
14. He has a personal responsibility to disallow any item of accounts which
is contrary to law;
15. He has the duty to levy surcharge (penalty) on anybody who incurs any
expenditure contrary to law;

Mwangi & Another V. Tusker

The case illustrates that the treasurer has the responsibility to levy a surcharge
on anybody who incurs any expenditure contrary to the law. The case deals
with the Tender Committee of Murang’a County Council. The Tender
Committee was considering tenders to supply the county council with gasoline.
The tenders were received from various companies and the law requires that if
tenders are to be considered in a particular manner and the Local Council is
obliged to contract the company that quotes the least amount. Here they
awarded the tender that did not quote the least amount and they came to find
out that Mwangi and others who company had tendered was a member of the
committee and was therefore prohibited from sitting at that meeting. They sat
there and influenced the decision of the tender committee.

They had caused Muranga country council to spend more on supply of diesel
than they would have if they had awarded the company that had quoted the
least amount. They were surcharged to pay the difference between he least
amount quoted and the amount at which the contract was awarded to their
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 company. Here the treasurer was exercising his power and duty to levy a
surcharge.

The other mistake that they made was Mwangi and the others sitting on a
matter in which they had a pecuniary interest.

Note: IN cases where surcharges should be imposed, if the treasurer fails to

levy the surcharge, he himself should be surcharged.

16. The treasurer has the responsibility should he disagree with the council
over any expenditure which he feels is contrary to law, then if the
Council goes ahead to approve the expenditure, the treasurer must show
that the expenditure is contrary to his advise. He must similarly indicate
in the Minutes that the expenditure was approved contrary to his advise.

POWERS OF THE TREASURER:

Section 130 of LGA AND Part II Third Schedule.

Attorney General V. Duwinton

This is an English Case, this is a case concerning borrowing powers of the local
authority. Local Authorities have statutory borrowing powers but there are
statutory limits as to the amount local authorities can borrow. In this case, the
local authority in question, A borough which was governed by the Municipal
Corporations Act had by 1903 March exhausted its exhausted its borrowing
powers. After exhausting the borrowing powers, the Local Authority proceeded to
take overdrafts from the bank. They took an overdraft that was far in excess of the
amount they were allowed to borrow and as usual the bank started charging
interest on the overdraft. The treasurer had been admitted to open an account for
the local authority in his name and this is the account with the overdraft. First of
all the local authority had exceeded its borrowing powers and authorised
payments on the interests on overdraft. The treasurer decided to take money in
other accounts belonging to the local authority to upset some of the interest in the
account made in his name. One of the members noticed what was going on and
decided it was illegal and notified the Attorney General requesting him to sue on
the behalf of the council. While this was going on and before the suit was filed.
The treasurer is a public official and he was sued in his capacity.

The court ruled that monies that had been borrowed in excess of the borrowing
powers had been borrowed illegally and the interest was also illegal and that the
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AG and members of the Local Authority who had requested him to bring the suit
were entitled to an injunction to restrain the treasurer from making further
payments of interest out of the Burrow funds.

The court also held that the Borough accounts in respect of the interests i.e. the
accounts maintained in the name of the Treasurer was going to be impeached by
the court. The court held that the Treasurer was not merely a servant of the
council but that as custodian of the Borough funds, he owed a duty and stood in a
fiduciary position to the members of the Local Authority and could not plead the
orders of the council for an unlawful act. The treasurer could not claim that the
local authority had approved the excess borrowing.

The court held that the overdraft and payment of interests were illegal because the
borough had exceeded its borrowing powers. It also held that the fact that the
defendant’s accounts maintained by the treasurer had been audited and passed
was no bar to the action. The court also held that payments of charges of interest
on overdraft were illegal, beyond the powers of the borough and therefore a
breach of trust. The court also stated that the Borough Treasurer is a statutory
officer with statutory duties and not merely a servant of the council but the
custodian of the Borough Funds which are Trust Funds and must not part with
them except on proper statutory authority.

DUTIES OF THE ENGINEER:

1. The Engineer has the general responsibility for engineering works of the
Local Authority; The only exception is where a local authority has made
separate contractual arrangements for the engineering works; some of
the engineering works is maintenances and repair of roads, drains, street
and bridges for which the local authority is responsible. These duties
are the services rendered to the public. Note Section 132 of Local
Government Act

DUTIES OF MEDICAL OFFICER OF HEALTH:

The duties are contained in the Local Government Act and in addition to the LGA
there is the public health Act which also governs the duties of the Medical Officer
of Health of Municipalities.

1. The Medical Officer of Health is the Chief Medical Adviser for the Local
Authority to which he is appointed.
2. Responsible for all matters relating to health for which the local
authority is responsible. Section 131 of LGA and relevant provisions of
Public Health Act.
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 3. On matters concerning the appointment of the medical officer of health
for the local authority, the Minister for Health must be consulted.

The functions of the councillors appear more like policy making functions. But the
functions of the officials i.e. Town Clerk, Engineer Treasure are more like
implementing functions. They will implement the policies that are passed by the
councillors. For the smooth running of the functions of council the policy
decisions are to be made jointly i.e. decisions on what the local authority does is to
be made jointly S. 26(a) prohibits any individual member of local authority to give
individual instructions on what is to be done.

There are a few statutory restrictions.

1. For the Town Clerk the statutes prohibits him/her from engaging in
private legal practice S. 138;
2. Restriction regarding disclosure of interest, if they have a personal
interest they are mandated to declare their personal interest in for
example in contracts;
3. They are prohibited from exacting monies and fees S. 137 (2) of the Local
Government Act;
4. The officials are accountable Section 136

RIGHTS:
The officials generally have a right to attend meetings of the committees and sub-
committees.

How are the joint decisions made?

MACHINERY OF LOCAL GOVERNMENT:

The machinery is the means by which local authorities accomplish their duties and
functions. For everything i.e. all duties and functions decisions have to be made
and they have to be made jointly.

What then is the means or the machinery by which those joint decisions are made?

THE MEETING SYSTEM

Meeting is one of the means by which local authorities decisions are made. the
statute provides for both annual and ordinary meetings. Section 74. authorizes
local authorities to hold annual meetings and at least 3 other general meetings for
the transaction of general business.

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 1. The number one thing is that the general business may be the
appointment of the chairman of a committee e.g. a finance committee;
2. another general business maybe the authorisation of sealing of
documents e.g. the Council could be buying property and transfer
documents have been prepared, they sit down and decide;
3. Appointment of committee members is something that is done at the
annual general meeting or the other ordinary meetings
4. Approval of spending;
5. To approve local authorities activities;
6. To consider purchase of land and of course other properties;
7. To consider the disposal of land;
8. To consider the granting of licences to occupy council’s land;

Second Schedule Rule 12 provides that every question and every matter shall
be determined by a show of hands and decided upon by majority votes of
members present, unless provided otherwise by written law.

Section 75 in addition it provides for special meetings.

Rand V. Odroyd [1959] 1 QB 204

In addition to the annual and general meetings, the statutes provides for special
meetings provided for under Section 75 and in this case the statute provides that a
mayor in case of a municipality or a chairman in case of county council are to hold
special meetings from time to time upon receipt of requests in writing for a
meeting.

Meetings may be called for example to consider motions submitted by councillors

on matters affecting their electorate. Special meetings may also be held to
authorise the signing of orders for payments where there is no finance committee.
Look at Second Schedule

In addition, public meetings may be held and as the name suggests such meetings
may be held with inhabitants of a particular local authority area to consider
matters affecting them which are of public importance. Section 86 of the Local
Government Act. Again the Mayor will be responsible in case of a municipality
and a chairman in case of a county council.

There are certain procedural requirements for meetings the most important one
being that of notice. Section 76 OF LGA requires that Notice of Meetings be issued
indicating the time, the place and the matter to be discussed at the meeting or the
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business to be transacted at the meeting. Such notices are required to be published
at the notice-boards of the local authorities.

The notice must also be served on the Town Clerk for Local Authorities and for
other local authorities on the chairman. It must also be served on every member of
the Local Authority.

NOTICES:
The notices are to be served on every other person as the minister may specify.
Please note that the time frame for serving the notices is specified. Check it up.

One of the things required in meetings is the record of attendance.

1. They must record attendance;
2. The Minutes of the Proceedings of every meeting must be kept stating
among other things the matter considered and the decision. In addition
to minuting the matters discussed, the minutes must be entered in books
kept for that purpose. Before they are kept in the books they must be
confirmed at the same meeting. This is for evidence purposes.

REQUIREMENT FOR DISCLOSURE:

Section 137 requires that councillors or any other officer of the Local Authority
who has a pecuniary interest direct or indirect in that matter and the matter may
be contract, bargains or an arrangement that the council proposes to consider.
The councillors must as soon as is practicable give notice that they have pecuniary
interest in a matter to be considered as soon as is practicable.

The requirement in addition to disclosing must not take part in the discussion of
the matter. If you must sit at the meeting then you must not take vote in any part
of the matter. If you fail to disclose your interest, you are guilty and are liable to a
fine of 2000/- or two months imprisonment or both and you can be surcharged for
any loss occasioned to the council as a result of an award for a contract in which
you have an interest. The interest of ones spouse is deemed to be the interest of
other spouse provided the two are living together. Besides in the United
Kingdom, it has resulted in a councillor losing his seat.

Brown V. DPP (1956) 2 QB 369

In this case we see an illustration of the meeting as one of the machinery for local
authorities. It also illustrates that voting is the procedure at these meetings. A
meeting was held by a local authority and members took part in that meeting that
was going to consider rent increase for the council houses that they were
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occupying so they had pecuniary interest and should not have sat. they were
charged under Section 76(1) of Local Government Act for participating in a local
authority for participating in a local authority and voting at the meeting which
was held to consider a matter under which they had a pecuniary interest. The
interest was that they were tenants of the Local Authority and the meeting was
about rent increases. Brown sued the DPP saying the decision went against them
and that they did not benefit. The court held:
“Regardless of whether or not the decision on additional rent payment were in
their favour, they had contravened the law by participating in the meeting and
therefore their being fined for the offence was upheld.”
Parliament has not said that they may vote against their interest but not for their
interests but that they may not vote in a matter in which they may have an interest.
In other words they are prohibited form subjecting themselves against the law.
Brown and his friend also lost their seats as councillors.

The local government authorises the minister for Local Government to allow
councillors who have all interest in the matter to sit and participate if he finds that
the number of those with an interest is greater than the number of those without
an interest, he may allow them to sit.

The Minister must be notified and their interest declared. The Minister has to
conduct his own investigation and the Minister is to specifically remove the
disability of members with an interest, barring them from sitting.

1. Disclose their interest;

2. Notify the Minister;
3. If the Minister finds that the number with an interest is greater then the
number without an interest, the minister may give his consent to sit or vote.

Section 252 - Corruption

Section 255 – Dissolution
Section 254 – Winding up.

Control of Local Authorities by Central Government

Relationship between Central govt and local authorities

We have a central government that has created a local government, the local
government is there to enable the local government to provide services at the local
level. The relationship is that the local govt exercises powers that have been
delegated by the central govt.
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The local govt is a delegate of the central govt. The relationship is that between
central and local government can be described as a partnership when it comes to
providing services and performance in duties. In this partnership the local
government is supposed to administer local areas, provide assistance and exercise
control in local areas through local authorities, they administer local areas through
the local govt the central govt administers the country as a whole. Local govt thro
local authorities administers local areas. The functions of the local govt through
local authorities is supposed to complement that of the central government. The
local govt is a delegate of powers by the central government. The central govt
exercises controls, checks and balances over local authorities. These checks and
balances are exercised in two ways.

1. Formal Controls;
2. Informal Controls.

Informal Controls which are exercised in the political arena where you have
politics influencing the person who becomes head of the local government. It
influences the manner in which manner power is given to the Minister. It also
influences the manner in which the Minister exercises the power. Politics will also
influence the exercise of power by the Minister.

FORMAL CONTROLS:

1. Ministerial Controls
These are controls exercised primarily through the Local Government Act. The
Local Government Act makes provisions for checks and balances i.e. it provides for
the Minister’s consent for a number of things that local authorities that require the
Minister’s consent. S. 143 states that if the local authorities want to purchase land
or dispose any land, they must seek consent of the Minister for local government
etc. this requirement for consent is one way that the Central govt exercises control
over the local authorities.

2. Financial Controls

(a) Note that auditing is one of the ways that control is exercised over local
authorities by the central govt. S. 231.
(b) Requirement of preparation submissions and approval of estimates of
expenditure and income.
(c) Extra ordinary inspection of local authorities, the Minister has power to
conduct an extra ordinary inspection of the local authorities accounts if
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 he suspects that something is wrong or if after submitting of the auditor
general’s report he thinks that something is wrong. There is a procedure
provided by LGA the Minister first of all must give notice to the auditor
general of his intention to conduct an extra ordinary inspection. The
Minister is also authorised to appoint public officials to conduct the
inspections. These public officials have powers one of which is that they
can disallow any item of account that is contrary to law or contrary to
the powers of the Minister. They also have power to surcharge any local
authority official who is found to have to have incurred an illegal
expenditure.
(d) The budget itself requires approval by the Minister which approval is
part of the exercise of controls.
(e) The Minister had the power to determine how much money is allocated
to the local authority from the Transfer of Funds Fund. (a special fund
established by central govt) the minister will consider whether in
previous years a local authority has been able to meet the conditions of
the percentage of the promotional grants. The percentage of
promotional grants is the grant given by central govt to local authorities
on condition that they can raise the balance of what they require to meet
their targets.
(f) Under S. 249 LGA the Minister for Local govt is authorised to reduce or
to withdraw govt grants from the local authority if
(i) it appears to him that a local authority is not utilising the
funds well, or
(ii) if it appears to the Minister that the administration or the
affairs of that local authority are wasteful or inefficient;
(iii) if the local authority has failed to act in conformity with the
LGA; there are several ways that the local authority fail to act
in conformity with the LGA.

CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS

1. Town Clerk
2. Treasurer
3. City Engineer
The central government hires people directly answerable to it to work for the local
authorities.

CONTROLS THROUGH THE MAKING OF REGULATIONS:

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Under S. 271 of LGA the Minister for Local Government is empowered to make
rules for the better carrying out of the purposes and the provisions of the Act. In
the exercise of this power the Minister has made rules which are known as
subsidiary legislation or subsidiary regulations which appear at the back of the
LGA. The power to make these rules is the power of the Minister for Local
Government. The Minister issues rules through Legal Notices. Through the
making of these regulations the Minister is exercising authority as they make
provisions for the carrying out of the functions and purposes of the Act.
Sometimes they even cite the specific sections of the Act under which the
regulation has been made.

POWERS OVER DEFAULTING LOCAL AUTHORITIES

Powers over defaulting local authorities are covered under Part 19 of LGA

It begins by saying that where the Minister is of the opinion that the local authority
is failing to perform the duties imposed on it by the Local Government Act, he is
given power to do a number of things
(a) He can direct that a local authority performs its duties and if a local
authority fails to comply, the Minister is required to perform the duties
this local authority is failing to perform and then recover any expenses
from that local authority’s account;
(b) He may require a defaulting local authority to submit proposals on how
it intends to exercise the powers conferred upon it in the performances
of its duties; if a local authority submits an acceptable proposal to the
Minister, the Minister may order that local authority to proceed to
exercise the power it had been failing to exercise which will include any
duties they may be failing to exercise in the manner prescribed in the
proposal. If they fail to submit the proposal, then the Minister is
required to exercise any powers a local authority fails to exercise in such
manner as he thinks fit and again he is authorised to recover any
expense he incurs from the local authority. Please note that instead of
doing (a) or (b) the
(c) Minister can remove members of the local authority and instead appoint
a commission to act in its place. Section 251
(d) The Minister may also wind up the local authority (to the extent of even
dissolving them); there are certain procedures to be followed before
powers to wind up are exercised. Certain conditions must be present.
(i) A period of 3 months or more must have elapsed between one
meeting of a municipal council and the next; in case of other

16
 local authorities a period of 6 months or more must have
elapsed since the last meeting;
(ii) The local authority in question must be found to be unlikely to
meet its financial commitments i.e. if its in so much debt that it
is not likely that the source of income can upset the debt the
minister can have it wound up;
(iii) The Minister must find that in his opinion the local authority
is failing to exercise its functions in such manner as would
best serve the interests of the inhabitants of its area of
jurisdiction;

Before winding up the local authorities, the Minister must hold a public inquiry
under the Commissioner of Inquiry Cap 102 and in this public inquiry members of
that local authority must be given a chance to be heard i.e. the members of the
local authority cannot be removed without being given a chance to defend
themselves. The commission will constitute 3 people one of them being the
chairman and the statutes provide that in case a commission is appointed, the
appointed commission is to last a period of 2 years unless the Minister has good
reasons to extent their term. While the commission lasts, it is entitled to exercise
all powers and duties accorded that particular authority under the LGA. Within
those two years the Minister must take all reasonable steps to reconstitute the
Local Authority and to make it function properly. Section 246 – 255.

Please note that the 3 factors earlier mentioned must be present and then the
Minister will decide to wound up the local authority. there are certain procedures
that must be followed
1. He must issue a notice of intention to wind up a local authority which
must be published in the Kenya Gazette and in at least one newspaper
circulating in that area;
2. He must also lay a draft order for winding up before parliament; this
draft is to be laid before parliament within 14 days of the notice.
3. Please note that the reason for tabling the draft notice in Parliament is
that parliament must approve the winding up of the local authority, it
must approve the order laid before it by the Minister. If parliament
approves, from the date of that order, the local authority then exists only
for purposes of winding up.
At the end of winding up process the Minister is supposed to publish a notice
in the Kenya Gazette and he must specifically state the date of dissolution and
from that date given in the Gazette the local authority ceases to exist. In the
place of the dissolved local authority, the Minister can establish one or more
local authorities.
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 THE CIVIL SERVICE

Read Constitutional Development in Kenya, Institutional Adaptation and

Social Change by J B Ojwang (1999) Pages 81-107

Definition of the Civil Service:

The Civil Service can be defined as the core of officials to which is entrusted the
implementation of the policy decisions of the government. From this definition is
clear that the function of the civil service is to implement government policy.

The civil service falls under the Executive arm of the government. It is in charge of
implementation of government policy.

Civil servants are those servants of the crown other than holders of political or
judicial offices who are employed in a civil capacity and whose remuneration is
paid wholly or directly out of monies voted by parliament. Excluded from this
definition are
1. Armed Forces Employees;
2. Policemen
3. Employees of public corporations
4. Employees of local authorities except Town Clerk, Treasurer and City
Engineer
5. Employees of Nationalised Industries.

We are concerned with the functions of the government to serving the public.
Administrative law is concerned about the functions of public officers. We want to
understand what the law says about the functions, employment, accountability
and efficiency of these public officials in the duties that they have been charged.

ORIGIN OF THE IDEA OF PUBLIC SERVICE

As with other governmental machinery including local government system, the

civil service is one of those public institutions which was inherited from the British
public institutions. Its tenets were created by the British colonial administration.
However since independence the civil service has changed. New dimensions have
been added to it and the new changes have been made to meet the circumstances
of the people of Kenya.

List of Civil Servants

1. Attorney General; and all who work in the AG’s Chamberrs;
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 2. Controller General
3. Auditor General
4. Permanent Secretaries
5. Secretary to the Civil
6. Commissioner of Police
7. Ambassadors and High Commissioners
8. Public Officials in various government ministries

Regarding their functions their primary role is to implement policies that have
been formulated by the government. These policies are formulated especially by
the cabinet. In their implementation of government policies they have duties that
they perform for the public.

DUTIES & SERVICES

1. Issuance of Licences, i.e. trade licences, driving licences, marriage
licences, liquor licences;
2. Collection of Taxes;
3. Conduct audits of public accounts
4. Represent the government abroad, the functions are many.

In the exercise of these functions they provide services in the interest of public and
exercise controls in the interests of the public.

APPOINTMENT TO THE CIVIL SERVICE:

The person appointed to the civil service determines whether or not services will
be rendered to the public, they also determine whether services to the public will
be delivered efficiently. It also determines whether they will stay in employment.

BRITISH WHITE HALL TRADITION

Tradition in respect of British Civil Service from which we derive our own.

Key factors

As the primary agency for policy implementation and given the crucial role of
policy implementation, the Civil Service in the White Hall tradition required an
uncompromised degree of efficiency, high competence (capacity to form the
functions with which an individual has been charged), loyalty to the government,
acceptance of governmental authority. please note that they were also conscious to
appoint people who had experience rather than patronage, patronage was not the
determining factor. They also appointed people who had technical competence vis
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a vis tribal affiliation. With these qualities the civil service in the British they were
able to efficiently implement the functions that the government had made. to these
were added two factors
1. Autonomy
2. Neutrality;

Neutrality referred to the requirement that a civil servant be detached from party
politics and for this reason any person who was and is appointed to the British
Civil Service is prohibited from engaging in party politics, if they engage in party
politics they must resign. This restriction ensures
1. British Civil Servants are detached from party politics so that they are
given or can develop a high degree of self-effacement; they have self
confidence to work efficiently no party what political party is in power.
2. It ensured that civil servants are insulated from political controversies,
they do not have to worry about political controversies and the effect of
the controversies such as instant dismissals.
3. Detachment ensures that the civil servants give service to a government
of any party or complexion, they can serve any government that comes
to power.

Autonomy means that civil servants in the British Tradition had secured tenure of
employment and because their tenure of employment was secured they were
secure and could work independently of external influence. The British Tradition
operated on the basis of the doctrine of political responsibility. This doctrine has
contributed greatly to the achievements of the British Civil Service and the
doctrine of political responsibility is the doctrine whereby British Ministers are
answerable to parliament for what is done or what happens in their ministries and
departments, e.g. in the Ministry of labour the minister would be answerable to
everything that happens in that ministry. A minister takes responsibility for the
affairs and the civil servants working in his ministry and they are not allowed to
blame any faults on the officials. If any official does anything wrong in their
ministry the minister is responsible and thus has to ensure that officials in his
ministry work efficiently.

These factors have enabled the British Civil Service to be very efficient and has
improved the quality of service provided to the people and generally to the
development of that country.

In Kenya what do we have in requirement of

The Kenyan situation

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In Kenya the particular historical context of the growth of the civil service did not
allow for all of the attributes that are found in the British Civil Service. In contrast
to the White Hall Model, with its emphasis on neutrality and autonomy, when the
colonial administration introduced the idea of the civil service, it vested the whole
civil service with both the powers of policy making and powers of policy
implementation. This was a breach of rule number one, the person who makes
policy cannot be incharge of implementation but in Kenya this is what happened.
There was failure to maintain the strict separation between policy makers and
implementers as in the British Tradition.

The senior Civil Servants were the governor and his appointed provincial
commissioners and district commissioners. In this position, the civil servants were
making policies and at the same time they took part in the implementation of those
policies.

The demand for law and order necessitated the growth of a large provincial
administration manned by civil servants. They also exercised relatively unfettered
degree of discretion unlike the civil servants in the British Tradition, the British
ones worked under a specific code of regulation but in Kenya they had unfettered
degree of discretion. This went on until Kenya approached independence. Some
gradual changes took place between 1960 and 1963. towards independence, the
colonial administration made changes which included changes made in the
appointment of civil servants. One of the changes was that he civil service was no
longer going to take part in policy making and their functions were limited in
policy making.

Their discretionary powers which were until then unrestricted, and wide were
taken away. The Constitution was amended and by this amendment the civil
service was placed under supervision of an independent body which was also
created by the Constitution and this was the Public Service Commission.

By this constitutional amendment, powers over the appointment of new civil

servants was given to the newly created Public Service Commission, before this
time, the civil servants were appointed by the Governor. T

The public service commission was given power to exercise disciplinary control
over persons appointed to the public service. For this purpose a detailed
government code of regulation was created on the basis of which the public service
commission exercised control over civil servants. This code of regulations made
certain provisions, ie. It required maintenance of good conduct. The code of
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regulations also formed part of the terms of employment of civil servants. It
specifically proscribed engagement in political activities by civil servants. It
prohibited civil servants from presenting themselves as candidates for political
offices unless they had resigned from the civil service.

Civil Servants were also prohibited from joining any political associations or
parties because it was considered that such associations were not consistent with
their duties and obligations as public servants because they were required to
implement governmental policy without any bias and without partiality regardless
of any political views that they may hold.

In this code people in the higher ranks like the controller general were totally
barred from participating in the political activities or political party matters.

In this Constitution, the tenure of Civil Servants was secured to make Civil
Servants discharged their functions independently and efficiently. A civil servant
could not be discharged from service unless they did matters which warranted
their dismissal as stipulated in their code of regulations. Inefficiency would be one
of the grounds or engaging in political activities would be grounds for dismissal.
Misconduct was another ground of regulations.

This secured tenure meant that it was not easy to dismiss a civil servant. No civil
servant could be dismissed unless and until the matter had been referred to an
independent tribunal and then that particular civil servant would be given a
chance to be present and to be heard. With such a civil service, appointment by
public service commission on the basis of qualified credentials would be expected
to function efficiently.

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

The situation remained until 1964 when the country attained independent status
and shortly after independence, firstly it was felt that in this country it was
advisable to have a neutral and independent civil service.

Several constitutional amendements were made whose overall effect was to place
the ‘civil service squarely under the control of the President. These were the
changes

1. On attainment of republican status in 1964, members of the public

service commission were now to be appointed by the president at his

22
 own discretion. Previously they were appointed by the governor
general acting on the advise of the Judicial Service Commission.
2. Whereas the public service commission was originally required to
operate independently of the executive, all of the officers appointed by
the executive, now the President could give authority to the Public
Service Commission to delegate any one or more of its functions to one
member. These amendments also affected the position of the Attorney
General, The Controller General, Auditor General and Permanent
Secretary, these powers were meant to give the president unfettered
discretion in relation to this offices.

In 1966 other amendments enhanced the position of the president in relation to

the public service. the amendment gave powers to the president of constituting
and abolishing offices for the Republic of Kenya and of making appointments
to any such offices in addition he had the power to terminate any such
appointments at his own discretion.

The Constitution further decided that any person who holds office shall hold
office at the pleasure of the President. Section 24 and 25 of the Constitution.

The effect of taking away the power of appointment and termination of civil
services from the public service commission and taking our the tenure of the
civil servants.

The effects were

1. It has been observed that the effect of these changes was one that it
relegated the position of Public Service Commission to a limited auxiliary
role making it merely a technical department of the Executive;

2. With respect of tenure of Civil Servants, the tenure no longer depends on

the observance of the code of regulations, it no longer depends on their
performance or reputation but on the pleasure of the president. Since the
president could abolish offices at his own discretion,

3. it follows that he idea of protecting offices by vesting their control in an

independent body is no longer valid.

4. Further the president became or has become in theory the employer of all
civil servants and he can terminate their services at will.

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5. Because of this the constitutional mechanism that was intended to insulate
public officers from the vagaries of political will was dismantled by these
amendments.

6. The Public Service Commission lost independent Constitutional status and

these amendments created conflicts in constitutional provisions.

Look at Mwangi Stephen Mureithi V. Attorney General

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