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DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW

KAMPALA CAMPUS

COURSE TITLE: ADMINISTRATIVE LAW

LECTURER (S):

Martin KAKURU (Professional Advisor/Lecturer, LDC)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & Continuing Legal Education & Professional Advisor, LDC)

TOPIC 05: JUDICIAL REVIEW OF ADMINISTRATIVE FUNCTIONS

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TOPIC 05: JUDICIAL REVIEW OF ADMINISTRATIVE FUNCTIONS

CONTENTS
1.0. INTRODUCTION
2.0. OBJECTIVES
3.0. MAIN CONTENT
3.1. Grounds for Judicial Review
3.1.1. Ultra-vires/illegality
Examination of circumstances consisting abuse of misuse of discretionary powers
a) Use of power for improper purpose
b) Putting into account irrelevant considerations
c) Error of law
d) Failure to give reasons
e) Discretion must not be fettered
f) Acting under dictation
g) Strict adherence to Policy
3.1.2. Unreasonableness/Irrationality
3.1.3. Procedural Impropriety/natural Justice
4.0. Orders/Remedies under Judicial Review
4.1. Certiorari
4.2. Prohibition
4.3. Mandamus
4.4. An Injunction
4.5. A declaration
4.6. Damages
5.0. CONCLUSION
6.0. SUMMARY
7.0. ASSIGNMENT/REVISIONAL QUESTIONS
8.0. REFERENCES/FURTHER READING
1.0. INTRODUCTION

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The function of government is exercised through the executive organ of government.

Under this is a series of agencies, public bodies, statutory corporations, commissions
and tribunals which keep exercising public powers to take decisions. Sometimes such
decisions affect the rights of people. At first, judges had no control over a tribunal or
public body so long as it kept within its jurisdiction. These public bodies could for
example go completely wrong in law, completely wrong on facts, and the error
however grave could not be questioned. All this tolerance was encouraged by the strict
adherence to the doctrine of separation of powers. In other words the court was
avoiding being seen as interfering with the exercise of executive powers by an organ of
government.

Overtime a sense of understanding began to flicker when judges observed that no

tribunal ever had jurisdiction to decide a case wrongly on a point of law. They thus
argued that when parliament sets up a tribunal, it does so in the belief that it will decide
cases in accordance with law and not contrary to it. This argument was extended to all
public institutions and officers in so far as they carried out government function.

It is against this background that judicial review emerged as an administrative remedy.

Judicial review is the process by which the High Court exercises its inherent and
supervisory powers to determine whether an administrative action is lawful or not and
to award suitable remedies. In so doing, the courts are doing their ordinary functions of
upholding the rule of law. Judicial review is different from an appeal in that it restricts
itself to administrative decisions and actions taken by persons and authorities
exercising public powers. An appeal on the other hand is re-hearing of a dispute of a
lower court by a higher/superior court having appellate jurisdiction. An appeal does
not have fixed grounds as judicial review.

The basis for judicial review is common law much as it has now gained statutory
support. Under judicial review, the court is concerned with the question of whether the

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administrative act or decision should be allowed to stand or not. In this regard the court
will restrict itself the question of decision legality of the action taken by an
administrative body. In ascertaining this objective, the court will focus more on the
decision-making process.

2.0. OBJECTIVES
At the end of this topic, you should be able to:
 explain the meaning of Judicial Review;
 the grounds upon which an application for Judicial Review may be premised;
 the different remedies or orders court can grant in an application for Judicial
Review; and
 the court having jurisdiction to handle applications for Judicial Review.

3.0. MAIN CONTENT

3.1. Grounds for Judicial Review
Judicial review is a prerogative remedy and can only be initiated on certain specific
grounds. These grounds are discussed below;

3.1.1 Ultra-vires/illegality
Ultra-vires refers to a situation where a public officer acts beyond his powers or does
what he or she is not authorized to do under the law. This is the central principle of
administrative law. A person is deemed to have acted beyond authorization of the law
under any of the following circumstances.

i) Where a public officer does anything which he/she is not authorized to do

under the law e.g.; where an action is taken by a wrong person. An act which is
for any reason in excess of power is described as ultra-vires and will be
considered void and deprived of any legal effect.

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The powers of administrative authorities are contained in enabling statutes or

rules. The statutes usually specify the proper person or office or institution
supposed to carry out the task. The statutes normally describe the offices to be
created under the statute, the functions of the officers, procedures to follow and
backing of the law is deemed to be acting ultra-vires as all administrative
actions must have legal authorization.

ii) Where an authority or body is not properly constituted; this arises where an
action is supposed to be taken by a panel of members of tribunal and the
minimum quorum is specified before it can be rendered valid. Similarly, it may
arise when power to take a decision is vested in particular office holders. Any
decision made without realizing quorum or the authorized officer(s) is invalid
for being ultra-vires. In Dane vs. Kiamba Liquor Licencing Board, the tribunal
was constituted to listen to complaints in the case of a denial of a Liqour Licence.
None members (local inhabitants) effectively participated in determining
whether the Applicant should be granted a licence or not. On the decision being
challenged, court held that such a decision was ultra-vires in so far as none
members participated.

iii) When the exercise of public power conflicts with a provision of the general
law (Parent Act); the general principle is that the principal Law (Act of
Parliament) should be conformed to by any subsidiary legislation made there
under. This is so because the exercise of administrative powers should never
undermine statutory provisions. In Koinange, the Governor had powers to make
subsidiary legislation for improving and controlling better quality crops and
livestock. He made rules to the effect that “No African should grow coffee in a
scheduled Area (Gazette Areas). Koinange challenged the legislation on grounds
of ultra-vires. The court agreed that the rules were ultra-vires in so far as they
segregated against Africans; and that this should not have been the intention of

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Parliament in enacting the principal legislation. Also, in Kangi V Tanga Town

Authority, it was held that powers of enacting a subsidiary legislation cannot be
used to make laws that are in conflict with the subsidiary legislation, such will be
rendered ultra-vires.

iv) Misuse or abuse of discretionary powers; It is the duty of the executive

authority to put a proper interpretation to a statute so as not to misunderstand
the powers which are given, whether they are discretionary or not. The
principles governing discretionary powers were laid down in the case of
Padfield v Ministry of Agriculture [1968] A.C 997. In this case, some farmers in
South East England were concerned about the inconsistent prices of milk. They
petitioned the Minister to appoint a committee to investigate the price
differentials in the milk industry. The Minster refused, hence an application for
judicial review seeking orders of mandamus which the court granted. The court
observed that where a genuine complaint is made to a Minister which is worth of
investigation by a committee, he is not at liberty to refuse on grounds which are
arbitrary or capriciously. Court further pointed out that good administration
requires that complaints should be investigated and grievances remedied. That
when Parliament has set up machinery for that very purpose it is not for the
minster to brush it on the side. He should not refuse to investigate a complaint
without giving good reasons.
The court thus laid the following principles as guidelines governing the use of
discretionary powers:
 Discretionary powers are not unfettered (uncontrolled);
 Discretionary powers are granted by Parliament with an intention
that it be used to promote the policy and objectives of a particular
legislation/statute;
 Proper use of discretionary powers can be ascertained after the court
has interpreted the whole statute;
 Where a minister misconstrues the provision of a statute and if such
misinterpretation leads to abuse of powers of discretion, then the

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aggrieved party is entitled to challenge them in court by way of

judicial review; and
 Discretionary powers must be judicious, that is, they must be
exercised in accordance with the prevailing law, must be rational and
in accordance with established procedure.

Then in Ashbridge Investment V. Minister of Housing [1965 W.L.E 1320; the question
was whether on the evidence the building was a house and whether it was fit for
human habitation. It was observed that:
a) A court can only interfere with the discretionary powers of a Minister when he
has acted on no evidence; or
b) if he has come to a conclusion to which on the evidence available he could not
reasonably come; or
c) if he has given a wrong interpretation to the words of a statute; or
d) if he has taken into account .... when an Act confers discretionary powers to a
Minister or any other Authority, it does so in the belief that and on the condition
that the Minister or Authority would exercise them in accordance with the
requirements of natural justice.
If the Minister broke this condition, then he has gone outside his powers.

Examination of circumstances consisting abuse or misuse of discretionary powers

a) Use of power for improper purpose i.e., not to achieve the intended purpose
under the law. Time and again, traffic officers are staging speed gargets in places
where there is no statutory instruments prescribing their speed limits. While it is
prudent on the part of police to save lives by regulating traffic, this must be done
in accordance with the law. In Sydney Municipal Council V. Campbell, a local
Council Ordinance authorized City authorities to acquire land for public projects
that is to expand and remodel the city. The council used its power to acquire
land with the hope that it should be disposed of at a premium (profit): at a later
stage. This exercise of acquiring land to be disposed of at a premium was
challenged as being ultra-vires to the powers given by the ordinance. Court held
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that acquiring land for speculative purposes was not the intention of the law.
That the council was using its valid power to achieve wrong objectives. Then in
Wheeler V. Leicester Football Club; a Local Authority had powers to regulate the
use of open space and parks within its area of jurisdiction. Hoping to be acting
within a law meant to eliminate racial discrimination and fostering equality of
opportunity and good relations between persons of different racial groups, they
banned Leicester Club from using the club grounds as a punishment for having
allowed its members who were South Africans during days of apartheid. The
court held that this was using powers they properly had for an improper
purpose.

b) Putting into account irrelevant considerations; these could be guided by malice,

discrimination, etc. In order to avoid the legal trap, a person exercising
discretionary powers;
i) Has to acquaint him/herself properly with the law.
ii) Must call his/her attention to matters which he/she is bound to consider.
iii) Must exclude matters which are irrelevant.

In Farnandes V. Kericho Liquor Licencing Board, the Plaintiff’s licence was not renewed
on grounds that he was not a Kenyan citizen. The matter of citizenship was not a
requirement of licensing liquor. Court held that the local Authority put into account the
citizenship of the applicant which was an irrelevant consideration in their decision
making.

In Prescott V. Birmingham Corporation; a local Authority was sued on the grounds that
it had used irrelevant consideration in fixing fares payable to the local transporters. The
complaint was that the Local Authority had allowed free transport for the elderly.
Court held that age was an irrelevant consideration in determining bus fares.

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c) Error of law; An Authority which is entrusted with discretionary powers must

direct itself properly on the law otherwise its decision may be declared invalid.
In Perilly V. Tower Hamlet Borough Council; the council wrongly believed that
it was under a statutory duty to deal with applications for a trading licence in the
Petticoat Lane market in the strict order in which they were received. It therefore
refused to licence Perilly, the plaintiff, who had traded at the stall for over 30
years. Court cancelled the licence for the new comer and ordered that the status
quo be restored, i.e., the licence be issued Perilly. The notion of error of law goes
wide than a mere mistake of statutory interpretation. For example, a public
officer commits an error of law when he acts and takes a decision without any
evidence to support it.

d) Failure to give reasons; although there is no general duty to give reasons, giving
reasons is one of the fundamentals of good administration at common law. This
is so because sometimes a right of appeal depends on reasons advanced by the
decision maker. In R v Trade Secretary; Court held that if all other known facts
and circumstances appear to point overwhelmingly in favour of different
decisions, the decision maker who has given no reasons cannot complain if the
court draws an inference that he has no rational basis for the decision made.

And where there is a duty to give reasons, such decision made without reasons will be
rendered ultra-vires. In Poyser v Mill Arbitration, court observed that where there is a
duty to give reasons; proper, adequate, reasons must be given which are intelligible and
deals with substantial points in issue. Failure to give reasons will leave court with no
choice but to quash the decision for error of law.

e) Discretion must not be fettered; to fetter discretion means to surrender it to

some other persons/people (R v Port of London Authority Exparte Kynotch).

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f) Acting under dictation, a public which has statutory powers is expected to

exercise those powers itself. This principle also applies to a given public officer.
It/he should not be seen to act under the direction of any other person or
authority. Acting under dictation may arise under the following circumstances: -
i) Where a person with discretionary powers is directed on what to do
by another person in high authority.
ii) Where a person with discretionary powers refuses to act unless he is
advised by another authority yet there is no duty on him to seek such
advice.
iii) Where a public authority with discretionary powers fears to act so as
not to hurt the feelings of a superior officer.
iv) Where a public officer acts under pressure which cannot allow him to
make an independent decision based on his good sense of judgment.

In Simms Motor Units v the Minister of Labour and National Service, Emergency
Regulations allowed public officials to be dismissed for misconduct. Such an affected
official had a right to appeal to a superior official for review of the dismissal decision
but before the relevant officer could make a decision, the Minister directed on the
course of action to be taken and this was confirmed by the superior officer. Court held
that the superior officer had acted under dictation and his decision was ultra-vires.

g) Strict adherence to Policy; A public authority which has discretionary powers

may take into account policy as one of its considerations. For example, matters of
national importance may weigh heavily against exercise of discretion. Where a
public authority is given powers to issue licences for a particular activity, it may
be proper for such authority to give due consideration to the prevailing policies.
In Kenya aluminum v The Administrator of Agriculture, the refusal to grant a
million licence was justified by the defence that the Administrator of Agriculture
had to put into account the National Policy of controlling milling activities so as
to minimize the dumping of inferior and dangerous products on the market (See:
National Policy and Directives Principles of State Policy under the Constitution of the
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Republic of Uganda, 1995). This, however must not be exercised blindly as courts
have interpreted rigid adherence to policy as amounting to nothing but accepting
a self-imposed restriction on the exercise of discretionary powers. In Mandwa v
City Council of Nairobi the Licencing Board relied on the policy of
Africanization of Commerce to deny the applicant a right to own a stall in the
municipal market. Court rendered the decision ultra-vires for rigid adherence to
policy thereby failing to exercise the discretionary powers. Also see. Singh v
Municipal Council of Nairobi.

3.1.2 Unreasonableness/Irrationality
A Public authority has powers to discretion and is not expected to exercise those
powers unreasonably. The law presumes that public powers will be reasonably used for
purposes of promoting the objectives of statutes and government policies. The test of
unreasonableness is an objective one. And will depend on the judgment of a reasonable
person in the circumstances. In Kruse v Johnson, Court held that unreasonableness will
include situations which depict any of the following: -
i) Where the rules are a trial or unequal in their application, i.e., either they work for a
particular class or discriminate against a particular sector or society.
ii) Reasons are made on the basis of injurious considerations.
iii) Where a decision or action is taken in bad faith, which is either for purposes of
punishment or inconveniencing someone or attaining material gain.

A case in point Associated Picture v Wednesbury Corporation, in this case a local

corporation had powers to make rules, regulating cinemas and picture houses in the
city. The parent Act granting these powers was worded as follows;
... The Authority can licence or issue a licence on such conditions as it may
think fit to impose...
The corporation made a rule which restricted Sunday shows. This was challenged on
grounds that the Local Authority was unreasonable and had taken into account an
irrelevant religious issue in making this rule. Could held that the regulation prohibiting

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Sunday shows was ultra-vires and unreasonable in so far as it had been made in
religious considerations which were not relevant.

3.1.3. Procedural Impropriety /natural Justice
Whenever a statute provides a procedure to be followed in a process leading to an
administrative decision, it is mandatory that such procedure be followed in the absence
of any laid down procedure, any public administrator ought to act judiciously and
observe rules of nature justice. He/she must demonstrate that he has acted fairly
especially to a person likely to be affected by the decision.

Natural justice which involves a right to a fair hearing is one of the commonest grounds
for judicial review. This right stems from the provisions of Art. 28 (1) of the
Constitution, which not only provides for a fair hearing but also emphasizes that it
must be conducted before an impartial tribunal. This provision is further supported by
Art.42 and 44 (c) of the same constitution. In Schmidt v Secretary of State for Home
Affairs [1969] 2ch.149, court observed that an administrative body may in a proper case
be bound to give a person who is affected by their decision an opportunity of making a
representation (defence). This all depends on whether he has some right or interest or
some legitimate expectation of which it would be unfair to deprive without hearing
what he has to say.

In R v Gaming Board, Exparte Benalm [1970] 2 Q.B 417, a gaming licence was denied
upon an argument that the Board had no duty to observe rules of natural justice. Lord
Denning MR, relying on the dictum of C.J Parker in Re HK (an infant) where it was
observed than an immigrant had no right to come in the country, but he has a right to
be heard.
As earlier observed a denial of a right to be heard, or an impartial tribunal results into a
null decision. A high court will grant an order of certiorari to set aside such illegal
decision.

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4.0. Orders/Remedies under Judicial Review

These include an order of certiorari; an order of a Prohibition; an order of mandamus;
an injunction; a declaration and damages (Section 33, 36 and 38 Judicature Act, Cap.
13). We shall discuss each hereunder;

4.1. Certiorari
Certiorari lies on an application of a person aggrieved to bring the proceedings of the
inferior tribunal before the High Court so that the court can determine whether they
shall be quashed, or to quash such proceedings. It will issue to quash a determination
for excess or lack of jurisdiction, error of law on the face of the record or breach of rules
of natural justice, collusion or perjury (see; Halsbury’s Laws of England 4th Edition
Vol. 1 paragraph 147). it is restricted to administrative decisions and proceedings of
statutory authorities, or bodies and public officers exercising statutory authority (R v
National Joint Council for Dental Technicians Exparte Neate [1953].Whenever any
person or body having statutory authority to determine rights of subjects and having
the duty to act judicially, acts in excess of their legal authority, they are subject to the
order of certiorari (the Kings v Electricity Commissioner’s Exparte London Electricity
Joint Committee [1924] K.B 172. 205). The main object of certiorari is to keep the
machinery of government operating properly in accordance to law and in the public
interest (Re: Bukeni Gyabi Fred [1999] KALR 918.922-923)
4.2. Prohibition
A prohibition is a common law remedy intended to prevent an unlawful assumption of
jurisdiction. It arrests or forbids any proceedings and administrative powers deemed
unlawful or exceeding one’s jurisdiction.

4.3. Mandamus
This is a compelling order directed by the High Court against a public officer
commanding him to perform a duty or carry out an act conferred on him by law.

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4.4. An injunction
This is a restraining order stopping a person from acting in any office he is not entitled
to act. It is intended to preserve the status quo.

4.5. A declaration
This order is intended to communicate a judicial pronouncement of the parties’ rights. It
does not attract any execution or enforcement machinery of the court.

4.6. Damages
These are monetary compensations which a court may grant to a victim of civil wrong
as of right. They are not given as punishments to the wrong doer but to restore a victim
to his proper feelings that his rights are being respected.

5.0 CONCLUSION
Judicial review is a procedure available to an unsuccefull person who wishes to
challenge the orders of an administrative body or tribunal. This application can only be
handled by the High Court and the applicant must satisfy any of the grounds of
illegality (ultra vires), unreasonableness (irrationality) and procedural impropriety. If
the applicant is successful, court will issue several orders or remedies which include
inter alia; certiorari, prohibition, mandamus, declaration, injunction and damages.
6.0. SUMMARY
In this topic, we have discussed the process of Judicial Review, the grounds for Judicial
Review and the various orders or remedies court can grant in an application for Judicial
Review.

7.0. ASSIGNMENT/REVISIONAL QUESTIONS

1) What do you understand by the term Judicial Review?
2) State and explain the grounds for Judicial Review.

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3) Explain the various circumstances that may prove “illegality” as a ground for
Judicial Review.
4) Discuss any five orders a court may grant to a successful applicant for judicial
review.

10.0. REFERENCES/FURTHER READING

 The Constitution of the Republic of Uganda, 1995.
 The Judicature Act Cap. 13, Laws of Uganda.
 The Local Government’s Act Cap. 243, Laws of Uganda (as amended)
 Hood, P. (2001), Constitutional and Administrative Law. (7th edn.) London:
Sweet & Maxwell.
 Wade & Bradley. (1985), Constitutional and Administrative Law, (10th edn.)
London: Longman.
 Iluyomade, B. O. & Eka, B. U. (1977). Cases and Materials on Administrative
Law in Nigeria. (2nd ed.) Ile-Ife: Obafemi Awolowo University Press Limited.
 Malemi, E. (2008). Administrative Law. (3rd ed.) Ikeja: Princeton Publishing Co.

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