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All governmental bodies are mandated to offer various services to the people. In carrying out these functions, the public authorities may be required to follow certain procedures, guidelines and may make promises hence the public having expectations on them. These expectations that public authorities should operate in a certain way or that they ought to accord certain benefits to the public in their interactions gives rise to the principle of legitimate expectations. This work will look into the meaning, history and its application in Kenya.
The principle of legitimate expectations is a principle that states that government decision makers should be required to satisfy the legitimate expectations that they have created. The legitimate expectations may arise due to the express promise or impliedly through the conduct of the public authority.
The principle of legitimate expectations was first developed in English law as a ground for judicial review in order to protect a procedural or substantive interest when a public authority performs contrary to a representation made to a person. There are two types of legitimate expectations which are procedural legitimate expectations and substantive legitimate expectations. A procedural legitimate expectation arises on the expectation that a public body will follow a certain procedure when arriving at a decision within its mandated powers. The specified process includes consulting heavily with those affected or likely to be affected by the of the public authority. On the other hand, substantive legitimate expectation entails a situation in which a person seeks a particular benefit and in which such a benefit will be founded upon the governmental action justifying the existence of the relevant expectation. In England, courts have embraced the two types of legitimate expectations unlike in many common law jurisdictions which only apply procedural legitimate expectations.
In Kenya, the principle of legitimate expectation is envisaged in article 7(2)(M) of the Fair Administration Action act, 2015 which empower the courts or tribunals to review administrative decisions that violate legitimate expectations of a person. On the part of the courts, they are faced with the challenge of establishing whether an expectation is legitimate or not and if it is providing appropriate remedies to the aggrieved parties. In establishing the legitimacy of an expectation, they rely on various parameters to arrive at sound decisions.
One qualification for an expectation to be valid is that it must be based on public authority’s action which its mandated by the law to perform as was set out in the case Jane Kiongo & 15 others V Laikipia University & 6 others [2019] eKLR. In the case, the petitioners were admitted as students at Laikipia University school of business in 2015 as private sponsored students to study the Degree of Commerce. Furthermore, as holders of Diploma certificates, they were exempted from some course units that form part of the degree courses and were given credit transfers for exempted course units which were recorded in their transcripts. The petitioners successfully completed their courses and were due to graduate on 22nd December, 2017. However, their names were not included in the graduation list by the university via a notice issued in May, 2017 stating their credit transfers had been revoked hence they had to retake the exempted course units in order to qualify for graduation. The reason behind this move was that the credit transfers had been done irregularly.
The petitioners then brought an action before the court claiming that the university’s decision was unlawful, done without giving them a hearing and it violated their legitimate expectation. On the other hand, the respondents argued that the petitioners’ rights were not violated as the institutions they obtained their Diplomas from were not validated. In its ruling the court observed that if the representations giving rise to legitimate expectations were envisaged in a valid private law contract, they should be enforced. In this scenario, the petitioner and the first respondent entered into contract with one another in which the former performed their obligations by paying school fees and attending classes up to their final year of study. Moreover, the university’s senate whose role is to approve students qualified to undertake various degree and certificate programmes in that institution as per the Universities Act, 2012 made a representation to the petitioners that they were qualified for credit transfers hence admitting them to study for Bachelor of Commerce. By blocking their graduation, this amounted to breach of contractual terms hence violating the petitioners’ legitimate expectation as they had relied on an action the university’s senate is mandated to perform in law.
Another instance, is that the person claiming violation of his/her legitimate expectations, must qualify to rely on it as stated in the case, Public V Principal secretary, Ministry of Transport, Housing and Urban development ex-parte Soweto resident’s forum CBO [2019] eKLR. In the case, Soweto Residents Forum CBO, a community-based organisation registered under the Ministry of Labour, social security services, brought an action before court claiming violation of their legitimate expectations by the Ministry of Transport, Housing and Urban development. They argued that on 14th February, 2009, the then Ministry of Housing informed Kibera residents of a major infrastructural development which required them to move from their houses to other houses as the Kibera area was being developed. Furthermore, the ministry informed them that the relocation was temporary and once the new modern houses were complete, they would be given first priority to occupy them hence agreed to move to Decanting estate near Lang’ata prison. Also, the ministry issued them with letters and enumeration cards. However, after some of the new houses were complete, they were occupied by some Kibera residents and strangers. The ministry further ordered them to relocate from blocks A, B and C of the decanting estate to other blocks and they feared that if they move, they shall not be allowed back into the new blocks.
In his ruling, Odunga J observed that for legitimate expectation to arise, the representations must be clear, unambiguous and devoid of relevant qualifications. He further emphasised on the point of qualifications stating that the applicants needed to have an enumeration card and meet the respondent’s requirements in order to be relocated to the new houses. However, the applicant did not meet the requirements and only one of its members exhibited an enumeration card hence the other members could not establish that they were bona fide Kibera residents. This resulted in them not qualified to rely on the ministry’s representation. He also reiterated that judicial review is concerned with decision making process and not merit hence their action on legitimate expectation failed.
The principle of legitimate expectation is very crucial in any jurisdiction as it promotes fairness in enjoyment of government services. By seeking redress before a court or tribunal under this doctrine, it ensures that all people are treated in an equal and fair manner. Also, it compels the public authorities to render their services appropriately to the public so as not to fall short of their legitimate expectations and risk law suits.
Secondly, the principle of legitimate expectation discourages abuse of public authority. This, abuse of authority occurs when a public authority goes against a representation made to a person yet it’s mandated by law to perform that function. Also, it may constitute a public authority acting beyond its powers. The principle of legitimate expectation seeks to redress grievances arising from such actions hence keeping public bodies in check with the help of the judicial system.
Furthermore, this principle enhances the public’s trust in public officials. The doctrine of legitimate expectations reminds public officials to keep their promises by ensuring they perform their obligations diligently. This, being with the aim of meeting the public’s legitimate expectations on them. This in turn enhances the public’s trust in the government and public officials.
Moreover, the principle of legitimate expectation promotes the rule of law. As this principle demands that public officials perform their duties as stipulated by the law, they strive to achieve that purpose. In return, citizens are able to rely on promises made by public authorities hence creating a trend of certainty and consistency in the application of the law which are key elements in promoting the rule of law.
In conclusion this principle should be applied hand in hand with other principles in administrative law such a public participation, independence, reasonableness and many others to ensure an efficient working government and the protection of the rights and freedoms of all individuals.
