Kenya Administrative Law :THE SOURCES OF ADMINISTRATIVE LAW:

2.1 WHAT ARE THE SOURCES OF LAW?
- All sources not equal -


Binding authority Persuasive authority
1. The Constitution
2. Legislation
3. Case law (judicial precedent)
4. Common law
5. Administrative practice (custom / usage)
6. International law
7.   Academic writings/opinions
8.   Policy docs (green & white papers)
9.   Reports by state institutions
10. Foreign law

2.2 BINDING / AUHORITIVE SOURCES:

2.2.1 The Constitution:
- Supreme law.
- Sets standard for all administrative conduct & actions.
- Guarantees the right of just administrative action by demanding all action be;
   1. lawful
2. reasonable
3. procedurally fair.
- Law in conflict with The Constitution declared invalid.


2.2.2 Legislation:
The constitution creates a broad framework where legislation regulates & addresses the issues.

Original (enabling/empowering) legislation Subordinate legislation


2.2.3 Case Law (Judicial Precedent):
- Courts interpret the law.
- Interpret a legal rule and apply.
- Judicial precedent - stare decisis rule.

2.2.4 Common Law:
- Unwritten Roman Dutch Law as influenced by English and African Customary law.
- Not NB source of Administrative Law - however English & RDL have contributed;
   eg. Common Law rules of English origin = The principle of ultra vires & the rules of natural justice.
- Note ( common law rules are included in legislation.

2.2.5 Administrative Practice (Custom or Usage).
- Fixed practices - generation to generation → regarded as binding.
- Indigenous / African customary law included in definition of custom.
- A custom must meet certain requirements;
1. Reasonable
2. Existed for a long period.
3. Generally recognised & observed by the community.
4. Content must be certain & clear.
- ? is whether administrative practice can require the force of law ?  (Is the exception rather than the rule).

2.2.6 International Law:
- i.t.o The Constitution plays an important role.
- i.t.o Administrative Law plays a lesser role.


2.3 PERSUASIVE SOURCES:

2.3.1 Writings - Academic Opinions:
- Courts refer → law journals.

2.3.2 Policy Documents:


Green Paper White Paper
- Consultative document. - Final document.
- Participatory democracy = people invited - Expression of government’s commitment,
   to comment on matters regulated by government.    action & implementation policy.
- eg. Growth, Equity & Redistribution Policy.

2.3.3 Reports by State Institutions:
- State Institutions supporting constitutional democracy.
   e.g. Public Prosecutor = reports on administrative conduct and makes recommendations to legislature.

2.3.4 Foreign Law (Comparative Law):
The courts may consider foreign law where Kenya law insufficient.
2.4 WHERE TO FIND ADMINISTRATIVE LAW SOURCES:

Legislation
Government Gazettes, Internet, Statute publication.

Case Law
Internet

Articles
(Journals)

Policy Documents
Government website.