Ali Abdi
“Little could be more corrosive of the public’s fragile trust in government if it were clear that public authorities could freely renege on their past undertakings or long-established practices” – Christopher Forsyth
In the interpretation of laws, Courts have, in pursuit of new jurisprudence, evolved the principles of administrative law solely to control the exercise of power. These principles are intended to provide safeguard to the citizens against abuse or misuse of power by the instrumentalities or agencies of the State. One of the latest and important of these principles is the ‘doctrine of legitimate expectation’, which is an outcome of synthesis between the principle of administrative fairness (a component of the principles of natural justice) and the rule of estoppels.
The doctrine of legitimate expectation has been developing beyond the procedural context for a number of years. The question that has been asked in these jurisdictions is whether the existence of a legitimate expectation can give rise to a substantive remedy. In other words, can a court compel an administrator to grant a substantive benefit to an individual based on that individual’s legitimate expectation of receiving such benefit? This application of the legitimate expectation doctrine is referred to as substantive legitimate expectation. The doctrine of substantive legitimate expectation has, however, not been fully accepted in Kenyan jurisprudence.
Therefore, the principle of the Legitimate Expectation means that expectations raised by administrative conduct have to be respected and fulfilled at least for the public interest and betterment demands otherwise. Non-fulfilment can have some serious legal consequences. Simply put, a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise from a representation or promise made by the authority, including an implied representation or from consistent past practice.
The main role played by the Courts in the entire transaction of this doctrine is to safeguard the individual’s expectations in the face of change of the policy by ensuring that an individual’s expectations are fulfilled by applying principles of fairness and reasonableness to such situations.
Consequently, the rationale behind the doctrine of legitimate expectation is to prevent administrative authorities from exercising their discretionary powers so as to defeat legitimate expectations of individuals, which have been engineered by the prior conduct of those administrative authorities.
Under Common law jurisdiction, the doctrine of legitimate expectation has been traced to an obiter dictum of Lord Denning M. R in “Schmidt v. Secretary of Home Affairs (1969) 1.AllE.R. 904.” Lord Denning observed thus: “…speeches in ‘Ridge v Baldwin’ show 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 representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say…”
Further, Lord Diplock in the famous case of “Council of Civil Service Unions v Minister for the Civil Service [1984] 2 AII ER 935” stated that legitimate expectation may arise from an express promise “given on behalf of a public authority” that “some benefit or advantage which” the applicant “had in the past been permitted by the decision–maker to enjoy” will continue to be enjoyed “until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment.”
Therefore, the theory of Legitimate Expectation is based on a right and grounded in the rule of law as requiring regularity, predictability and certainty in the Government’ s dealings with the public by operating both in a procedural and substantive context. It can be tritely understood that where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority, the doctrine of legitimate expectation comes into play and the person may have a legitimate expectation of being treated in a certain way by an administrative authority.
It is generally accepted now that, in order to succeed in a claim based on a failure of a public body to respect a legitimate expectation, the three matters set out by Justice Fennelly in the Supreme Court decision in “Glencar Exploration v Mayo County Council. [2002] I.R., 84” need to be established:
“Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation.
Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected annually or potentially in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority, or that the person or group has acted on the faith of the representation.
Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public body will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”
In short, a person can be said to have a “legitimate expectation” of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course.
The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or an established procedure followed in regular and natural sequence; thus such expectation should be justifiably legitimate and protectable. However, a claim for legitimate expectation does not amount to a right in the conventional sense. It only gives an applicant a sufficient locus for judicial review. This doctrine is confined mostly to the right of a fair hearing before a decision, which results in negating a promise or withdrawing an undertaking. The doctrine does not give scope to claim relief straightway from the administrative authority as no crystallised right, as such, is involved.
Legitimate expectation arises only if there is an express promise given by a public authority, or there exists a regular practice which a claimant can reasonably expect to continue, and finally if expectation is reasonable.
There has been some debate recently as to the extent to which it can be said that a legitimate expectation can indeed relate – or ought to be capable with appropriate flexibility, depending on the circumstances, of relating – to a substantive benefit, rather than merely to an entitlement to have a process conducted in a particular way.
There is now some increasing support for the view that certain procedures would be followed as a result of some representation is unduly restrictive. And that there is no reason, in logic or principle, why the doctrine cannot be successfully invoked so as to declare a person entitled, in an appropriate case, not simply to fair procedures, but to the benefit which he was seeking in the particular case.
However, even on the recent authorities, this expanded view has not yet been applied in such a way as to permit the doctrine to require that a statutory discretion be exercised in a particular way. Nonetheless, the courts are refining the doctrine, and inching forward, and there are signs that there may be some broadening of the principle in the future as a result.
For example, Learned counsel Peter Gichuru, a lawyer at Ahmednasir Abdikadir & Co Advocates, in “Miscellaneous Application No 10 of 2009, Republic vs Kenya Railways & Another Exparte Inviollate Wacike”, submitted that based on legitimate expectation, there is a norm of judicial control which derives from the need to secure certainty and predictability in executive actions, hence courts seek to enforce a promise(s) or representations given by or on behalf of an authority to an individual to the end that lawful bargains are not thwarted.
In applying the creme of legitimate expectation, one ought to associate oneself with equitable estoppel and use it as a shield. It was held in the case of “Mulji Jetha Ltd Vs. Commissioner of Income Tax Nairobi HCCC No. 594 of 1966 [1967] EA 50” that; Equitable estoppel is not a principle to be applied by the court in an arbitrary or mechanical way without regard to the factors which normally influence the exercise of its inherent discretion in the granting of equitable relief, and even if there were no other relevant consideration, the company has been guilty of laches to such an extent as would render it inequitable to grant the relief which it seeks….. Although it is said that to succeed in the defence of equitable estoppel the promisee must satisfy the court that it is inequitable to allow the promissor to sue on the original contract, extension of the principle to matters not connected with the contract has been recognised. If a man gives a promise or assurance which he intends to be binding on him and to be acted on by the person to whom it is given, then, once it is acted upon, he is bound by it.
Therefore it is trite to say that where a party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the party who gave the promise or the assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration.
A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fair play in action. Therefore, to satisfy this requirement of non-arbitrariness in a State action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision and also that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
Legal certainty
It is my view that word needs to be said about the principles underlying the legitimate expectation doctrine in the Kenyan laws. The basic premise underlying the protection of legitimate expectations seems to be the promotion of legal certainty. Individuals should be able to rely on government actions and policies and shape their lives and planning on such representations. The trust engendered by such reliance is said to be central to the concept of the rule of law.
Legal certainty is not, however, the only principle at play in legitimate expectation doctrine. The counter value of legality is especially important in the context of the substantive protection of legitimate expectations. The fear in protecting legitimate expectations substantively is that administrators may be forced to act ultra vires. That would be the case where an administrator has created an expectation of some conduct which is beyond his authority or has become beyond his authority due to a change of law or policy. If the administrator were consequently held to that representation he would be forced to act contra legem. It is clear that such representations will not be upheld by the Kenyan Courts. The value of legality in Kenyan laws has led to the requirement that the expectation must be one of lawful administrative action before it can be either reasonable or legitimate. Legality therefore seems to take precedence over legal certainty in the Kenyan Jurisprudence.
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