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Court of AppealPartially AllowedCourt of Appeal at Nairobi (memorandum of appeal dated January 9, 2018)

Attorney General & another v Commission on Administrative Justice (Civil Appeal 7 of 2018) [2024] KECA 1157 (KLR)

Court of Appeal of Kenya
20 September 2024
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the insurance regulator had power to set premiums but quashed the motor insurance price guidelines anyway for lacking justification.

What this practically means

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Executive summary

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This appeal by the Attorney General and the Insurance Regulatory Authority (IRA) challenged the High Court's judgment of March 20, 2017 (Mativo J) in Nairobi Constitutional & Human Rights Petition No 622 of 2014, which declared the Motor Insurance Underwriting Guidelines issued under IRA Circular No IC 07/2009 illegal, unconstitutional and null and void, and quashed them by certiorari. The High Court had found, on the petition of the Commission on Administrative Justice, that IRA had no statutory mandate to set premium prices. The Court of Appeal, per a single judgment of the full bench (Warsame, Ole Kantai and Nyamweya, JJA), partially allowed the appeal. It held that the trial judge erred in reading section 3A of the Insurance Act so narrowly: a contextual statutory interpretation showed that regulatory power under that section can encompass the setting of prices for insurance services. Both declarations of illegality and unconstitutionality were accordingly set aside, the judge having also never substantively interrogated the constitutionality of the guidelines. However, applying section 7(2)(i), (k) and (l) of the Fair Administrative Action Act, the court found that IRA had not justified price regulation as rational, reasonable or proportionate: no evidence of market monopoly was adduced, and no case was made that price fixing was the most appropriate means of stabilising the motor insurance sector. The order of certiorari quashing the guidelines was therefore affirmed on this distinct ground. Each party was ordered to bear its own costs in the High Court and the appeal, the petition having been brought in the public interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Insurance Regulatory Authority acted within its statutory powers under section 3A of the Insurance Act when it issued the Motor Insurance Underwriting Guidelines under Circular No IC 07/2009
  2. 2.Whether the setting of premium prices was a rational, reasonable and proportionate exercise of IRA's regulatory power

Key legal issues

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01

Whether IRA had statutory power to issue premium-setting guidelines

Holding

Yes - the trial judge erred in holding that regulation under section 3A excludes price setting; regulatory power can include setting premium prices.

Reasoning

The court undertook a contextual statutory interpretation of the undefined term 'regulation', noting section 3A(2)'s objectives of a fair, safe and stable insurance sector, protection of policyholders and promotion of the sector. Drawing on Klein's three means of insurance regulation (solvency, price and market conduct regulation), it concluded that price regulation falls within the statutory concept of regulation, reversing the High Court's narrow reading of section 3A of the Insurance Act.

p. 10
02

Whether the price regulation was rational, reasonable and proportionate

Holding

No - IRA provided no market justification (such as monopoly) for price regulation as opposed to other regulatory means, so the guidelines were irrational, unreasonable and disproportionate.

Reasoning

Applying section 7(2)(i), (k) and (l) of the Fair Administrative Action Act and the Wednesbury and proportionality standards, the court held that although price regulation can be within power, IRA failed to justify it as the most appropriate intervention, adduced no evidence of monopolies justifying price fixing, and ignored the market distortions and 'downward spiral' risks of rate suppression identified in the comparative literature cited.

p. 12
03

Whether the High Court's declaration of unconstitutionality was justified

Holding

No - the trial judge never interrogated the constitutionality of the guidelines in substance or effect, so the unconstitutionality finding had no basis and was set aside.

Reasoning

The court noted that the learned trial Judge did not interrogate the constitutionality or otherwise of the impugned guidelines, whether in substance or effect, yet issued a declaration that they were illegal, unconstitutional and null and void. Since that finding was unsupported by any analysis, it constituted an error, and both declarations of illegality and unconstitutionality were set aside.

p. 10

Legal principles established

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  • A statutory body may only act within the scope of its conferred powers; action beyond them is ultra vires and null and void, and a body also acts unlawfully where it incorrectly interprets a provision as conferring a power that it does not confer.
  • A statutory body acting within its powers may nonetheless act unlawfully if its decision is irrational, unreasonable or disproportionate, being grounds of review under the Fair Administrative Action Act.
  • Regulation under section 3A of the Insurance Act can encompass the setting of prices for insurance services.
  • On an appellate review, findings of the trial court will be departed from only where they are not based on the evidence on record, where wrong principles of law were applied, or where discretion was exercised injudiciously.

Court orders

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  1. 1.Set aside the two declarations of illegality and unconstitutionality of the Motor Insurance Underwriting Guidelines made by the High Court
  2. 2.Affirm and uphold the order of certiorari quashing the Motor Insurance Underwriting Guidelines issued by IRA under Circular No IC 07/2009 dated 20/11/2009 on the ground that the guidelines were irrational, unreasonable and disproportionate
  3. 3.Order that each party bears their own costs of the suit in the High Court and of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Nairobi Constitutional & Human Rights Petition No 622 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a constitutional petition (not expressly stated beyond the appeal itself)

Relief refused

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CAJ's claim that IRA acted wholly outside its statutory powers in issuing the guidelines

The court found that regulatory powers under section 3A of the Insurance Act can include setting prices

p. 10

Costs

Each party bears their own costs of the suit in the High Court and of this appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, this appeal therefore partially succeeds with respect to the finding that IRA acted within its powers in issuing the impugned guidelines, in the exercise of its mandate of regulation of the insurance industry.
p. 12Disposition - appeal partially succeeds on statutory power
We have however found that the impugned guidelines were irrational, unreasonable and disproportionate. We accordingly afirm and uphold the order of certiorari issued by the High Court in the said judgment to quash the Motor Insurance Underwriting Guidelines issued by IRA under Circular No IC 07/2009 dated 20/11/2009 for this reason.
p. 13Final orders - certiorari upheld on rationality grounds
We therefore order that each party bears their costs of the suit in the High Court and of this appeal in the circumstances.
p. 13Costs order
A statutory body, even when acting within its powers, may still act unlawfully if its decision is irrational, unreasonable or disproportionate.
p. 11Grounds of review under the Fair Administrative Action Act

Issues in the judgment

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minor

The judgment is internally inconsistent in how it describes the parties in the High Court, referring to the impugned party as both 'the 2nd appellant' and 'the first respondent' when reciting the High Court orders.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Attorney General & another v Commission on Administrative Justice (Civil Appeal 7 of 2018) [2024] KECA 1157 (KLR)", Case Analysis (2024). Court of Appeal at Nairobi (memorandum of appeal dated January 9, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1157/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.