Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The petitioner’s case was that the Minister hurriedly enacted the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I No. 62 of 2020 during the period when the country was under lockdown purposely to defeat the requirement of public consultation required in the creation of such a regulation. The Court declared the Instrument invalid.
Facts of the case
The petitioners stated that:
- On April 28, 2020, the minister of energy and mineral development passed the electricity (electricity and management of the rural electrification fund) instrument, SI No. 62 of 2020.
- That the process of making and passing the statutory instrument did not comply with public and private sector participation required under section 62 of the Electricity Act 1999, Cap 145.
- That the process of making and passing the statutory instrument was done without Cabinet approval contrary to the law.
- That the administration of the Rural Electrification Fund under the legislation when implemented would be ultra vires section 64(3)(a) of the Electricity Act 1999 Cap 145 which obliges the minister to administer the Rural Electrification fund in accordance with the Act.
- That the composition of the rural electrification board under paragraph 7(2) of the statutory instrument is ultra vires the electricity act 1999 Cap145 as it excludes key stakeholders from effectively supervising and giving guidance to the fund in the public interest.
- That the process of making and passing the Legislation overlooked other legislation like the public finance management act 2015 regulating expenditure and accountability of funds drawn from the consolidated fund.
- That paragraph 13 of the legislation is Ultra vires the recommendations of the rural electrification strategy and plan 2013-2020 approved by the cabinet under section 63 of the electricity act 1999 cap 145.
- That the legislation should be quashed on the grounds of illegality, procedural irregularity, being ultra vires the parent act and existing laws, unreasonableness, and irrationality.
Type of measure challenged
Measures, actions, remedies claimed
- Order of certiorari
- Order of prohibition
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
When a statute provides for a consultative technique, or public and private participation, the Courts are duty bound to regard it as a mandatory procedural requirement, the breach of which may result in the invalidation of delegated legislation. The passing of the Electricity (Establishment and management of the Rural Electrification Fund) Instrument No. 62 of 2020 was ultra vires, improper, and void for failure to consult and follow the set procedures, and thus the decision of the minister was unjustified, unreasonable and consequently irrational.
Conclusions of the deciding body
The Court upheld the petitioners’ claim by issuing a declaration that the Electricity (Establishment and management of the rural Electrification Fund) Instrument, S.I N0. 62 of 2020 was invalid.
The Court also issued an order of certiorari quashing the Statutory Instrument on the grounds that it affected or may affect the operations and purpose of the Rural Electrification Strategy and plan for 2013-2022.
The Court however made no order with regard to costs, as sought by the applicant since the matter was brought in the public interest.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
Due process required consultation and the Statutory Instrument made without it was declared to be invalid.
Impact on Legislation/Policy
Balancing government policy with the right to participate in the law-making process.