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SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

DEPARTMENT OF PUBLIC POLICY AND ADMINISTRATION

APP 203

ADMINISTRATIVE LAW

by Dr. Abba Babagana

Q: Declaratory writ order as a remedy for administrative errors

Group members

Frankline Were - C155/5426/2017

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Omar Abubakar - C155F/19006/2020

James Murimi - C155/6628/2020

Yar Deng Chol - C155EA/14774/2021

Sara Nafula - C155/3943/2021
Biketi Tenzi - C155/3956/2021
Regina Indeche - C155/3978/2021
James Ndenge - C155/3931/2021
Brightone Rachuonyo - C155/3964/2021
Hesky Odhiambo - C155/3987/2021
Afolabi Ebenezer Seun - C155F/16029/2021

Introduction
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Administrative error refers to an error attributable to the department staff such as

misapplication of policy, miscalculation, failure to take action etc. It is caused by neglect,
confusion and carelessness. For example, in a hospital setting, an incorrect box is selected from
the dispensary shelf and labelled incorrectly resulting in the patient ingesting the wrong
medication. Remedies for correcting administrative errors are such as declaratory writ orders.
A declaratory writ order is a formal statement from the court that a decision, procedure or act is
unlawful. A writ of declaration issues to order an executive, legislative or quasi-judicial act to be
invalid in law; it plays a supervisory role. Thus where an administrative authority without
jurisdiction purports to deprive an applicant of own legal rights, the court may declare the
administration decision to be invalid then where the court’s original jurisdiction is in place, it
may declare the applicant’s legal rights.
Declaration is the legal determination of a court that resolves legal uncertainty for the litigants. It
is a form of legally binding preventive by which a party involved in an actual or possible legal
matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one
or more parties in a civil dispute (subject to any appeal).The declaratory judgment is generally
considered a statutory remedy and not an equitable remedy in the United States, and is thus not
subject to equitable requirements, though there are analogies that can be found in the remedies
granted by courts of equity. A declaratory judgment does not by itself order any action by a
party, or imply damages or an injunction, although it may be accompanied by one or more other
remedies.
A declaratory judgment is generally distinguished from an advisory opinion because the latter
does not resolve an actual case or controversy. Declaratory judgments can provide legal certainty
to each party in a matter when this could resolve or assist in a disagreement. Often an early
resolution of legal rights will resolve some or all of the other issues in a matter.
A declaratory judgment is typically requested when a party is threatened with a lawsuit but the
lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or
contract might conflict; or as part of a counterclaim to prevent further lawsuits from the same
plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be
applicable). In some instances, a declaratory judgment is filed because the statute of limitations
against a potential defendant may pass before the plaintiff incurs damage .
Declaratory judgments are authorized by statute in most common-law jurisdictions. In the United
States, the federal government and most states enacted statutes in the 1920s and 1930s
authorizing their courts to issue declaratory judgments.
Administrative declaratory orders adjudicate the rights of parties and determine questions raised
by a party before an agency. The non-coercive character of declaratory orders make possible the
practice of preventative law even in cases where the case is conducted and the acts upon which
liability might be based.
Similarly, the rights of a party may be determined in advance of an affirmative action entailing
possible liability. For example, question of personal status or jurisdiction may arise under a
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statute or agency ruling and an individual may obtain a declaratory order resolving the question
rather than acting at own peril.
Examples of situations where a court may issue a declaratory order include:
(1) cases to hear and determine marriages and other statutes
(2) disputes involving parents infringement
(3) corporation may ask a court to decide whether a new tax is applicable to them
beforinfringement it.
(4) An insurance company may seek a determination as to whether a policy covers a
particular customer’s claim
(5) A party to a contract may seek interpretation of the contract to determine the parties’
rights

The advantages of declaratory orders include;

1. declaratory orders does not require actions
2. it does not make command to the parties
3. declaratory orders determine how law applies to particular fact and rectify harm to
either side
4. promotes efficient administration.
5. the cautious practitioner may have concerns as to the order of pleading that could
eventually allow for a declaration of assistance to the applicant (client). Those
concerns may suggest a More inclusive approach when drafting the complainant.

The disadvantages of declaratory orders include;

1. it is hardly an advisory opinion
2. it obligates that plaintiff must have reasonable fear of imminent suit
3. declaratory orders are discretionary and court can refuse to heahem
4. The Declaratory of rights is not contemplated as an “advisory opinion”
5. Another important disadvantage of the scope of declaration is that the court “my resolve
only issues that have been pleaded specially in the potion for declaratory judgement.
6. In filling a Declaratory order (judgement), a court may not intrude upon the powers of a
separate branch of government. For Example where a court declares a locality’s zoning
decision unlawful, it does not have the authority to rezone property. Therefore, if a court
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finds for the complainer (applicant) and strikes down the local decision, it must then
determine what zoning classifications the evidence has shown to be reasonable, and then
remand the case to the governing body with instructions to reconsider rezoning the
property to one or the other of those zones within a period of time, generally ninety days.
Should the governing body fail to act within that period, the court is then to issue a final
injunction prohibiting the locality from interfering with the use of the property in any of
the categories deemed reasonable on remand. The property can therefore end up ‘zoned’
to more than one use classification.” LGA, handbook of V.L.Govt lawat 1-54(2019).
Therefore, when two reasonable zoning classifications apply to a property, the legislative body –
not the court – has the prerogative to choose between those reasonable zoning classifications.
The circuit court unequivocally found that two categories were reasonable, but then it entered a
decree requiring the board of supervisors to grant one of those two zoning classifications. The
circuit court erred in entering this decree because the board may choose between the two, even
though one use might have been more appropriate or even the most appropriate use for the land.
“. Of Supervisors of Fairfax Cnty. V. Miller & Smith, Inc., (1991).

7. The effective date of a declaration may be suspended. For instance, suspension of a

declaration may be ordered to allow a locality time to consider further legislative action
when confronted with the situation where land is left unzoned on account of a declaration
that a zoning regulation is unlawful. “See Bd. of Supervisors of James City Cnty. v.
Rowe” However, suspension is not a per se rule. Where the effect of an ordinance’s
declared invalidity is to leave land unzoned, and the land was unzoned prior to the
ordinance’s enactment and the requested land use would have been approved but for the
unlawful enactment, the court will not suspend its declaration to allow additional time for
a new enactment. “Matthews v. Bd. of Zoning Appeals of Greene Cnty”.
8. Instead of suspending the declaration, the court could treat the declaration as prospective
Only (and not retrospective). Such a prospective declaration of invalidity would not
affect Other amendments to the zoning ordinance enacted prior to the court’s issuance of
the declaration. Town of “Jonesville v. Powell Valley Vill. L.P” (1997).For xample of
how the power to suspend has been exercised when the equities seem to favor Suspension
can be found, Although Not adeclaratory judgment action, in that case, the Supreme
Court of Virginia affirmed a Judgment that the Town was violating Potts’ riparian rights
and issued a mandatory injunction Requiring the Town to demolish its dams. The circuit
court and then the Supreme Court Suspended the injunction to give the Town an
opportunity to condemn the plaintiffs’ water Rights in the stream.”Purcellville v.
PPotts.179 VV” (1942).
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Functions of declaratory orders

1. to inform the citizen of what the government acting through its agencies, expects of the
citizen so that they conduct their business complying with administration regulation
2. to examine various types of administration declaratory order and its effectiveness in
making declaratory orders available and providing guidance for the conduct of business
affairs
3. prevent lengthy trails and complex lawsuits
4. offer parties direction for the conduct of their affairs which applies to administrative
agencies
5. demand a flexibility of agencies in public interest and to administer statutes entrusted to
their jurisdiction when making policies and conditions

Purpose of the declaratory orders

The Declaratory judgment/order include;
(I) relieving litigates of the common-law that a declaration of rights cannot be
adjudicated
(II) rendering practical help in ending controversies which have not reached the
stage where other legal remedy is immediately available
(III) settling and uncertainties with respect to rights, status or other equitable and
legal relationship
(IV) avoiding multiple suits and lengthy trails
(V) providing clarity where technical or social changes placed in doubt one’s
rights, immunities, status, or privileges

Elements of declaratory orders

i. To properly state a sustainable cause of actions for declaratory
judgment, a complainant must allege that;
ii. there is a bonafide dispute between the parties
iii. the complainant has a justiciable question as to the existence or non-
existence of some rights, status, immunity, power or privilege, or
some fact upon which their existence may depend
iv. the complainant is in doubt as to the right, status, immunity, power,
or privilege
v. there is bona fide, actual, and present need for the declaration

The following is an example of a legal proceeding with declaratory writ orders in application
MITU-BELL WELFARE SOCIETY...................... PETITION
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THE KENYA AIRPORTS AUTHORITY............. 1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL........... 2ND RESPONDENT
THE COMMISSIONER OF LANDS...................... 3RD RESPONDENT
INITIATIVE FOR STRATEGIC LITIGATION IN AFRICA............... AMICUS CURIAE

The Petition before the High Court was filed on 21st September, 2011 by Mitu-Bell Welfare
Society, a society registered under the provisions of the Societies Act Cap 108, which according
to its Chairman, one Benjamin Kaunda Gishemba, comprised residents of Mitumba Village, with
3065 households or approximately 15, 325 men, women and children. The petition was filed on
behalf of its members and other residents of Mitumba village, (For ease of reference, the
members of the society and other residents of Mitumba village are hereinafter referred to as ‘the
appellants’).
On the basis of the pleadings, at the time of filing the Petition before the trial Court, the
appellants were all residents of Mitumba Village situated on Plot Number 209/12908, near
Wilson Airport, Nairobi; while their children attended school at Mitumba Primary School,
situated on Plot Number 209/12921, also located near the Wilson Airport.
The appellants’ Petition was prompted by a Notice published in the newspapers on 15th
September 2011, by the 2nd respondent giving them seven days within which to vacate the suit
land. Together with the Petition, the appellants filed a Chamber Summons application seeking
among others, conservatory Orders against the 1st respondent. On 22nd September, 2011
Gacheche J granted an order restraining the respondents from demolishing the village pending
the hearing and determination of the application for conservatory orders. However,
notwithstanding the PETITION NO.3 OF 2018 2 Conservatory Order, the respondents proceeded
to demolish the appellants’ houses in the Village on 19th November, 2011.
The Petition was amended by leave of the Court on 1st December, 2011 following the demolition
and eviction. The amended Petition sought the following;
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a declaration that the demolition was illegal, irregular, unprocedural and contrary to Art. 26,
27(2) (4) & (6) Art. 28 Art 29, Art 39. 40 Art. 43, Art.47, Art 56, of the Constitution
a declaration that any forceful eviction and or demolition without a relocation option is illegal,
oppressive and violates the rights of the appellants
an order restraining any purported demolition and or forceful eviction by the 2nd Respondent
against the appellants
a declaration that the resident of Mitumba Village were legally entitled to plot number
209/12921 under file number 226958 for Mitumba primary school and plot Number 209/12908
under file number 176952 for the village respectively and in the alternative they were entitled to
compensation and reallocation of another land or alternative shelter with access to education
facilities, clean water, health care and food at the state’s expense
a declaration that the appellants were entitled to the full protection from discrimination and the
same right had been violated hence they were entitled to full compensation for loss suffered
during and after the illegal demolition of their structures
a declaration that the appellants and other members of the public were entitled to the full
enjoyment of the right to economic and social rights that were about to be violated and or already
violated
costs of the Petition

PETITION NO.3 OF 2018 3

The respondents opposed the Petition and maintained that there had been no violation of the
appellants’ fundamental rights. They advanced four main arguments in support of this position;
that the land in question did not belong to the appellants but to the 1st respondent; that the 1st
respondent was under an obligation in performing its statutory duty under the Civil Aviation Act,
to ensure air safety by removing any informal settlement which was on a flight path; that the
demolition was not carried out by the 1st respondent but by the state in order to remove the threat
posed by the village given the ongoing war in Somalia; and that the appellants were claiming
social economic rights which were progressive and could not be granted at once.

The High Court framed the following issues for determination;

What rights, if any, do the Petitioners have over the subject property?
If the answer to (i) above is in the negative, was their eviction and the demolition of their houses
a violation of their Rights under the Constitution?
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If the answer to (ii) above is in the positive, what relief should the Court grant to the petitioners?
Rights over the Subject Property.
In a Judgment dated 11th September 2013, the High Court (Mumbi Ngugi J.) allowed the
Petition. She declared that following the demolition of Mitumba village, more so as the
demolition was carried out while an Order of the Court restraining the demolition was in force,
the 1st and 2nd Respondents had violated the appellants’ Constitutional rights.

The High Court’s detailed findings are summarized as follows;

On the issue of the appellants’ rights, if any, over the subject property, the Court found that the
appellants had no legitimate claim to the land, and could not therefore maintain a claim for
violation of their right over the property (land) under Article 40.
On the issue as to whether the eviction was in violation of the appellants’ Constitutional rights,
the Court at the outset addressed the issue of reasonableness of PETITION NO.3 OF 2018 4 the
Notice to vacate. In finding the Notice unreasonable, the Court noted that the same was dated
15th September 2011 requiring the appellants and others to vacate the suit land within seven
days. The Court also noted that though headed as a ‘Reminder Notice’, there was nothing before
it to indicate that the 1st respondent had issued any other Notice to the appellants. The Notice
was therefore adjudged to be unreasonable, unconscionable, and unconstitutional. Further, the
Court opined that Kenya was yet to develop legislation and guidelines, for eviction of persons
occupying land they are not legally entitled to occupy.
It was the court’s further view that despite the lack of legislation and guidelines for eviction, as a
member of the international community and a signatory to various United Nations treaties and
Conventions, Kenya is bound by such international guidelines that are intended to safeguard the
rights of persons liable to eviction. To this end, the Court invoked Article 2(5) and (6) of the
Constitution and held that the state, state organs and all persons, in carrying out evictions, should
do so in accordance with the United Nations Guidelines on Evictions as issued by The United
Nations Office of the High Commissioner for Human Rights in General Comment No. 7 “The
right to adequate housing (Art.11.1): forced evictions: (20/05/97) CESCR General comment 7.”
(General Comments).

On whether the demolition had resulted in a violation of the appellants’ rights under the
Constitution, the Court found that the appellants had made out a clear case of violation of their
Constitutional rights by the 1st and 2nd respondents. On the violation of the right to property, the
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Court held that the Constitutional right to property under Article 40 as read together with Article
260 of the Constitution, extends to, and must include protection of, goods and personal property.
In the opinion of the Court, even though the appellants had not given particulars of their goods
that had been destroyed during the eviction, it must inevitably follow that such goods as the
appellants had in their dwellings, and the materials the houses were made of, were destroyed.

Conclusion
An action for declaratory relief under the Declaratory Judgments Act is an expedient way to
resolve disputes over certain rights, status, and other equitable or legal relations. A ruling that is
explanatory in purpose; it is designed to clarify what before was uncertain or doubtful. After this
discussion, it can be said that the parties hold the right to file a suit against the disputed matter
and also holds the right to settle or adjust it accordingly at any point of the suit. The adjustment
or settlement can be done by agreement or by compromise and has to be done by the consent of
the parties.

References
Schwartz, B. (1956). Forms of Review Action in English Administrative Law. Columbia
Law Review, 56(2), 203-226.
Hickey, R. J. (1969). Declaratory Orders and the National Labor Relations Board. Notre
Dame Law., 45, 89.
Bremer, E. S. (2015, October). Declaratory Orders. In Final Report to the Administrative
Conference of the United States.
Lubbers, J. S., & Morant, B. D. (2004). A Reexamination of Federal Agency Use of
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Declaratory Orders. Admin. L. Rev., 56, 1097.

Borrie, G. J. (1955). The Advantages of the Declaratory Judgment in Administrative
Law. The Modern Law Review, 18(2), 138-147.