Kenya Law Reports

1 109CP"oSPECIAL ISSUEK enya Gazette Supplement (Acts )REPUBLIC OF $" ;*fr+stf^SKENYA GAZETTE SUPPLEMENTACTS,2015 NAIROBI,3Td June,20l5 CONTENTAct-PAGEThe Fair Administrative Action Act,20l5 ..;..41rfiTiftEcErvEi)2g $x aot:';r. $ rr,r 1$ , KENYATEL:27t8?3t f{f. ff1 PRINTED AND PI]BUSHED BY THE C,OVERNMENT PRINTER, NAIROBI41 THE FAIR ADMINISTRATIVE ACTION ACTNo. 4 of 2015 Date of Assent: 27th May, 2015 Date of Commencement: lTth June,20l5 ARRANGEMENT OF SECTIONSPART I-PRELIMINARYS ection1-Short - II-FAIR ADMINISTRATIVE action to be taken expeditiously,efficiently, lawfully, -Administrative action affecting the for reasons for administrative III-JUDICIAL REVIEW7 -Institution of for determination of applications and for judicial 1 -Orders in proceedings for judicial IV-MISCBLLENEOUSl2-Principles of Common Law and Rules of 4 - Transition Fair Administrative ActionTHE FAIR ADMINISTRATIVE ACTION ACT.}

2 2015AN ACT of Parliament to give effect to Article 47of the Constitution, and for connected purposesENACTED by the Parliament of Kenya , as follows-PART I-PRELIMINARY1. This Act may be cited as the Fair Administrative shorttitreAction Act, In this Act, unless the context otherwise requires- rnterpretation"administrative action" includes-(i) the powers, functions and duties exercised byauthorities or quasi-judicial tribunals; or(ii) any act, omission or decision of any person, bodyor authority that affects the legal rights orinterests of any person to whom such actionrelates.

3 Means a person who takes anor who makes an administrative"Cabinet Secretary" means the Cabinet Secretary forthe time being responsible for the administration of justice;'odecision" means any administrative or quasi-judicialdecision made, proposed to be made, or required to bemade, as the case may be;"empowering provision" means a law, a rule ofcommon law, customary law, or an agreement, instrumentor other document in terms of which an administrativeaction is taken or purportedly taken;"failure", in relation to the taking of a decision,includes a refusal to take the decision;"state organ" has the meaning assigned to it underArticle 260 of the Constitution;and"tribunal" means a tribunal established under anywritten "administrator'administrative actiondecision;432015 Fair Administrative ActionPART II_FAIR ADMINSTRATIVE ACTION3.

4 (1) This Act applies to all state and non-state Appricationagencies, including any person-(a) exercising administrative authority;(b) performing a judicial or quasi-judicial functionunder the Constitution or any written law; or(c) whose action, omission or decision affects thelegal rights or interests of any person to whomsuch action, omission or decision (1) Every person has the right to administrativeaction which is expeditious, efficient, lawful, reasonableand procedurally fair.(2) Every person has the right to be given writtenreasons for any administrative action that is taken againsthim.

5 (3) Where an administrative action is likely toadversely affect the rights or fundamental freedoms of anyperson, the administrator shall give the person affected bythe decision-(a) prior and adequate notice of the nature andreasons for the proposed administrative action;(b) an opportunity to be heard and to makerepresentations in that regard;(c) notice of a right to a review or internal appealagainst an administrative decision, whereapplicable;(d) a statement of reasons pursuant to section 6;(e) notice of the right to legal representation, whereapplicable;(0 notice of the right to cross-examine or whereapplicable; or(g) information, materials and evidence to be reliedupon in making the decision or taking theadministrative action.)

6 (a) The administrator shall accord the person againstwhom administrative action is taken an opportunity to-(a) attend proceedings, in person or in the company ofan expert of his choice;Administrativeaction to be takenexpeditiously,efficiently, air Admin i s tr at iv e Ac tio n(b) be heard;(c) cross-examine persons who give adverse evidenceagainst him; and(d) request for an adjournment of the proceedings,where necessary to ensure a fair hearing.(5) Nothing in this section, shall have the effect oflimiting the right of any person to appear or be representedby a legal representative in judicial or quasi-judicialproceedings.

7 (6) Where the administrator is empowered by anywritten law to follow a procedure which conforms to theprinciples set out in Article 4l of the Constitution, theadministrator may act in accordance with that (1) In any case where any proposed administrativeaction is likely to materially and adversely affect the legalrights or interests of a group of persons or the generalpublic, an administrator shall-(a) issue a public notice of the proposedadministrative action inviting public views in thatregard;(b) consider all views submitted in relation to thematter before taking the administrative action;(c) consider all relevant and materials facts; and(d) where the administrator proceeds to take theadministrative action proposed in the notice-(i) give reasons for the decision of administrativeaction as taken;(ii) issue a public notice specifying the internalmechanism available to the persons directly orindirectly affected by his or her action toappeal; and(iii) specify the manner and period within thewhich such appeal shall be lodged.

8 (2) Nothing in this section shall limit the power of anyperson to-(a) challenge any administrative action or decisionin accordance with the procedure set out underthe Commission on Administrative Justice Act,2015 Administrativeaction affecting air Adminis trative Action20Il or any successor to the Commission onAdministrative Justice under section 55 of theCommission on Administrative Justice Act;apply for review of an administrative action ordecision by a court of competent jurisdiction inexercise of his or her right under theConstitution or any written law; orinstitute such legal proceedings for suchremedies as may be available underany written 23 of20l IRequest tbr reasonsfor administrativeaction-Institution ofproceedings.

9 (b)(c)6. (1) Every person materially or adversely affectedby any administrative action has a right to be supplied withsuch information as may be necessary to facilitate his orher application for an appeal or review in accordance withsection 5.(2) The information referred to in subsection (1),may include-(a) the reasons for which the action was taken; and(b) any relevant documents relating to the matter.(3) The administrator to whom a request is madeunder subsection (1) shall, within thirty after receiving therequest, furnish the applicant, in writing, the reasons for theadministrative action.

10 (4) Subject to subsection (5), if an administrator failsto furnish the applicant with the reasons for theadministrative decision or action, the administrative actionor decision shall, in any proceedings for review of suchaction or decision and in the absence of proof to thecontrary, be presumed to have been taken without goodreason.(5) An administrator may depart from the requirementto furnish adequate reasons if it is reasonable andjustifiable in the circumstances, and shall inform the personmaking the request of such III_JUDICIAL REVIEW7, (1) Any person who is aggrieved by anadministrative action or decision may apply for review ofthe administrative action or decision Administativ e Ac tion(a) a court in accordance with section 8; or(b) a tribunal in exercise of its jurisdiction conferredin that regard under any written law.