The Ombudsman’s Decisions are Binding

On 27th September 2019, a three (3) judge bench of the Court of Appeal (COA) made a landmark decision that the decisions and recommendations made by the Commission on Administrative Justice (also known as Office of the Ombudsman) (the Commission) have force of law and are therefore binding on public institutions including the national and county governments.

The Commission is established under Article 59 (4) of the Constitution, and the Commission on Administrative Justice Act, 2011. It replaced the Kenya National Human Rights and Equality Commission (KNHREC) and the Public Complaints Standing Committee.

Some of the functions and powers of the Commission are as follows:

• to investigate any conduct in state affairs or any act or omission in public administration in any sphere of Government;
• to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair, or unresponsive official conduct; and
• to secure redress for complaints of unfair treatment.

The decision of the COA followed a complaint by an Engineer who was employed as the Director (Enablers and Macro) of the Vision 2030 Delivery Secretariat Board (the Board) on a three (3) year contract. Upon expiry of the employment contract, the Engineer applied for a renewal of his contract but was unsuccessful. The Engineer then appealed to the Minister of Planning, National Development and Vision 2030 who renewed his contract for a further one (1) year term in March 2012. However, the Director-General of the Board, at the time, declined to implement the Minister’s decision and informed the Engineer that he had to exit the Board.

The action of the Board prompted the Engineer to lodge a complaint with the Commission. In exercising their powers, the Commission ordered the Board to:

• pay the Engineer an equivalent of twelve (12) months’ salary and allowances as compensation in place of the one (1) year contract renewed by the Minister;
• permit the Engineer to access his personal effects from his former office, and;
• offer an apology to the Engineer for the unfair administrative treatment.

The Board failed to implement the decision of the Commission prompting the Engineer to move to the High Court where he sought an order of mandamus to compel the Board to implement the decision given by the Commission. The Commission came on record in the High Court proceedings as an Interested Party in the matter. After hearing the submissions by all parties, the High Court dismissed the case stating that the Commission does not have coercive powers over the entity it investigates and in the event of default of compliance with any recommendations or directives given to such an entity, the only redress the Commission has in law is to report it to the National Assembly for action. It further stated that the Board could not be compelled to implement the directive of the Commission. The Commission being dissatisfied with the decision of the High Court appealed to the Court of Appeal.

Upon hearing the appeal, the three (3) judge bench of the COA found that:

• the Commission had the mandate to entertain and make recommendations on complaints;
• the Commission complements the judiciary in providing a platform for redress of administrative injustices as per Article 22(1) of the Constitution;
• the enforcement of the determinations or recommendations of the Commission is not limited to reporting to the National Assembly;
• the determinations and the recommendations of the Commission have the force of law and can be enforced in a court of law hence they are binding;
• a beneficiary of the determinations of the Commission can seek enforcement in court through judicial review proceedings;
• the Commission had demonstrated gross abuse of discretion, and manifest injustice was borne by the Board when it unlawfully failed to avail the renewed contract to the Engineer and refused to allow him to access his office to remove his personal effects; and
• the determination of the Commission was sound and well-founded in law and facts of the matter.

Mandamus orders were granted to compel the Board to implement the determination of the Commission. The COA further awarded the Engineer compensation for infringement of his right to fair administrative action together with accrued interest from the date of the High Court Judgment and costs both at the High Court and the Court of Appeal. This decision entrenches democracy, rule of law and accountability in government and public institutions. Also, importantly, the decision empowers the Commission to handle administrative wrongs in a robust way that has enhanced fair administrative action and access to justice as enshrined under Articles 47 (1) and 48 of the Constitution.

If you have any enquires relating to the fairness or propriety of administrative decisions and actions or other general inquiries on administrative action do not hesitate to contact James Wairoto on jwairoto@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.