GROUP 8 PRESENTATION

• Question: With the aid of constitutional and

statutory provisions as well as decided cases,
discuss the extent to which the courts will give
effect to clauses ousting the court’s jurisdiction
to review administrative action.
 INTRODUCTION
• Ouster clauses are legislative provisions found either in the constitution
or statutes and they aim at excluding or limiting the jurisdiction of courts
to review the actions or decisions of administrative agencies.
• The importance of these ouster clauses is to protect administrative actions
or decisions from review by courts.
 CONSTITUTIONAL PROVISIONS
• In Kenya, the defining constitutional ouster clause is found in Section 23(2) of the Sixth
Schedule of the Constitution of Kenya 2010. This provision states that the removal or the
process leading to the removal of a judge from office by virtue of the operation of legislation
contemplated under subsection (1) shall not be subject to question in, or review by, any court.
• To expound on this constitutional provision, we will rely on the landmark case of Jeanne
Gacheche & 6 others v The Judges and Magistrates Vetting Board & 2 others [2012]. It is
important to note that the approach taken by the High Court and Court of Appeal in the Jean
Gacheche Case has been the most preferred approach that other common law jurisdictions
have taken when interpreting these clauses. Adopting these approaches means courts can
ignore ouster clauses for strong and compelling reasons, including the abuse of fundamental
rights, which, under Article 165(3) of the Constitution, gives the High Court unlimited
original jurisdiction.
 STATUTORY PROVISIONS
• Ouster clauses are prevalent in Acts of Parliament that govern administrative law, regulatory bodies, and
government agencies just to name a few. The following are some of these ouster clauses:
• Section 9 (2) of the Fair Administrative Actions Act bars the High Court from reviewing an administrative action
or decision under it unless the mechanisms including internal mechanisms for appeal or review and other remedies
available under any other written law are first exhausted. To this extent section 9(3) obligates the court to direct the
applicant to exhaust available remedies primarily if it finds that he has failed to do so.
• Section 112(2) of the Insurance Act provides that the decision of the Commissioner shall be final and shall not be
called in question by any court, and may be executed by the Court which would have been competent to decide the
dispute if it had not been referred to the Commissioner as if it were a decree passed by that court. In addition,
Section 168 of the Insurance Act further provides that no legal proceedings shall be instituted in any court against
the Cabinet Secretary or the Board or any person authorized by the Cabinet Secretary or the Board for anything
done or intended to be done in good faith under this Act.
• Section 52(3) of the Banking Act does not permit any institution from recovering interest and other charges from a
court of law which exceed the maximum amounts provided in this Act or the Central Bank of Kenya Act.
STATUTORY PROVISIONS contd..
• Section 133(1) of the National Environment Management Authority Act grants immunity to the chairman and members of
the tribunal from civil lawsuits for actions taken or omitted in their duty whether or not within the limits of their jurisdiction
provided they, at the time, in good faith, believed themselves to have jurisdiction. Additionally, individuals executing lawful
warrants, orders or processes of the tribunal cannot be sued for their actions if they were within the Tribunal’s jurisdiction.
• Section 8 of the Rent Restriction Act states that every determination and order of the tribunal under the provisions of the Act
shall be final and conclusive and cannot be appealed to any court. Section 8(2) provides a list of instances where an appeal
shall lie to the Environment and Land Court for review. This is another partial ouster clause that outlines the limits and
exceptions to the finality of decisions made by the tribunal under this Act.
• The Civil Procedure Act and the Criminal Procedure Act contain provisions restricting the right to appeal. These are
Sections 66, 71A, 72-79B of the Civil Procedure Act and Sections 348 and 379 of the Criminal Procedure Act. For
example, Section 71A of the Civil Procedure Act states that unless otherwise specified an appeal can be made to the high court
from a decree issued by a first-class subordinate court following an appeal from a third-class subordinate court but only on a
question of law. Such appeals are final and conclusive.
• Section 22(4) of the Vetting and Magistrates Act which states that a removal or a process leading to the removal of a
magistrate from office under this Act shall not be subject to question in, or review by, any court.
• Section 48(2) of the Kenya Information and Communication Act provides that if any question arises as to whether or not
any postal article is a letter within the meaning of this Act, the decision of the Commission thereon shall be final.
 JURISPRUDENCE OF OUSTER
CLAUSES
• The locus classicus case for ouster clauses is Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147. The relevant issue for determination in this case was whether
the ouster clause in section 4(4) of the Foreign Compensation Act excluded judicial review.
The ouster clause reads: "The determination by the commission of any application made to
them under this Act shall not be called into question in any court of law.” The House of Lords
held that the ouster clause could not exclude the court’s jurisdiction.
• In the Kenyan context, the Jeanne W. Gacheche & 6 others v The Judges and Magistrates
Vetting Board & 2 others [2012] eKLR holds as the landmark case. The main issue for
determination was whether section 23(2) in the Sixth Schedule of the 2010 Constitution
ousted the High Court from hearing cases regarding the appointment and removal of judges
since Jeanne Gacheche sought the high court to prohibit the Vetting process carried out by the
board.
 JURISPRUDENCE contd.
• The high court, following Anisminic, asserted that courts ought to strictly interpret the extent to
which a provision ousts it from exercising its authority, so as to check the powers of
administrative officials and bodies. It thus found that it had jurisdiction over the matter.
• On appeal at the CoA, this position was maintained. However, at the Supreme Court, it was held
that the High Court lacked the jurisdiction to qualify the ouster clause. Hence by virtue of
Section 23(2) of the Sixth Schedule, the superior courts had no jurisdiction to review the process
or outcome attendant upon the operation of the Judges and Magistrates Vetting Board.
• The decision at the Supreme Court in Jeanne Gacheche has been maintained severally in other
similar cases such as Dennis Mogambi Mong'are where Section 23(2) of the Sixth Schedule was
question again. In the case Legal Advice Centre t/a v Kituo cha Sheria and Another v A.G and
7others [2024] eKLR however, an important averrment was made. Ouster clauses ought to be
interpreted in a purposive manner that protects the fundamental rights and freedoms of the
citizen.
 LIMITATIONS AND CHALLENGES
[Link] of enforceability by courts
Courts are hesitant to enforce ouster clauses that violate fundamental rights and freedoms as seen in the
Jeanne Gacheche case.
[Link] of Ouster clauses
Ouster clauses may lead to abuse of power and violation of individual rights since they tend to prioritize
finality over fairness.
Case law: Judges and Magistrates Vetting Board and 2 others v Centre for Human Rights and Democracy
and 11 others
• Recommendation for the challenges
Acts could offer judicial review for administrative decisions to ensure scrutiny for errors of law or
procedure to ensure accountability.
 COMPARATIVE ANALYSIS
• Ouster clauses tend to be interpreted and enforced differently across jurisdictions. To that end, we undertake a
comparative analysis of the interpretation of ouster clauses in other jurisdictions i.e. Ghana and South Africa.
Ghana
• Ghanaian courts have generally taken a strong stance against ouster clauses.
• Judicial power is vested in Article 125(3) of the constitution of Ghana
• Article 125(5) emphasizes that ultimate adjudicative authority resides solely within the judiciary.
• The Ghanaian courts have consistently interpreted ouster clauses narrowly, insisting that they must be clear
and unambiguous to exclude judicial review.
• Even when such clauses are present, courts have shown a willingness to look beyond them if there are
allegations of serious violations of fundamental rights or if the legislation is unconstitutional.
• In Adofo and Others V Attorney-General and Another the Supreme Court in Accra held that a statute
which provides for a total ouster of the jurisdiction of the courts in relation to rights which would otherwise be
justiciable is void.
 COMPARATIVE ANALYSIS contd.
South Africa
• Section 33 of the Constitution of South Africa provides that for just and equal administrative action the
following should be observed:
• (1) Everyone should have the right to administrative action that is lawful, reasonable and procedurally
fair.
• (2) Everyone whose rights have been adversely affected by administrative action should have the right to
be given written reasons.
• Similarly to Namibia and Ghana, South African courts have been reluctant to uphold ouster clauses if they
are ambiguous or if they attempt to exclude judicial review of constitutional matters or violations of
fundamental rights and that ouster clauses would only be given effect if they were clear and unambiguous.
• Case law: Saboath General Traders (Pty) Ltd t/a Sausage Saloon and Another v Mthatha Mall (Pty)
Ltd .The court held that the ouster clause did not explicitly exclude the jurisdiction of the Magistrate
court to adjudicate on the issue.
 CONCLUSION
• The Kenyan courts' handling of ouster clauses, as seen in cases like Dennis Mogambi Mong'are v
AG (2011) and Jeanne W. Gacheche & 6 Others v The Judges and Magistrates Vetting Board
(2012), shows the difficulty in balancing the intent behind such clauses with protecting the judiciary's
role of upholding the rule of law and fundamental rights.
• Strictly applying clauses like Section 22(4) of the Vetting of Judges and Magistrates Act risks
enabling abuse of power and denying due process, as warned in cases like Legal Advice Centre.
• The preferred approach, similar to Ghana and South Africa, is to narrowly interpret ouster clauses
and allow judicial intervention when constitutional rights are violated or jurisdiction is exceeded.
• As seen in the differing Supreme Court and High Court interpretations of Section 23(2) of the Sixth
Schedule, the judiciary has the responsibility to build public trust by interpreting ouster clauses in a
balanced way that promotes finality while also ensuring citizens can access fair adjudication and
upholding the supremacy of the law.