Kuwait Court of Cassation principle number 438

Summary: - Administrative adjudication. Adjudication of legality that subjects administrative decisions to its review and weighs them justly according to law, in light of their true facts and the foundations of their constituent elements, and verifies compliance with form and procedures. Issuance of a decision contrary to the requirements of laws and regulations. Effect: a judgment annulling it without the judiciary substituting itself for the administrative authority possessing original competence to conduct the assessment in light of the elements, rules and procedures governing it. - Rating the respondent's performance as good, with an essential procedure lacking, namely the absence of a recommendation therefor by the Internal Audit Oversight Committee at the Kuwait Fund for Arab Development. Implication: its invalidity. It must be annulled without substitution, with the resulting effects, most importantly reassessment of the respondent's performance in accordance with the correct procedures. The judgment's departure from this and its ruling to rate the respondent's performance as excellent as an effect of this annulment. A violation of the law requiring its partial cassation. Rule: It is settled that administrative adjudication is adjudication of legality that subjects administrative decisions to its review and weighs them justly according to law, in light of their true facts and the foundations of their constituent elements, and verifies that an administrative decision satisfies the form and procedures required by law. If it finds that the challenged decision was not issued in the manner required by the laws and regulations governing it, it must annul the decision without the judiciary substituting itself for the administrative authority possessing original competence to conduct the assessment in light of the elements, rules and procedures governing it. Accordingly, since it is established from the foregoing that the assessment of the respondent's performance (Director of the Internal Audit Department at the Kuwait Fund for Arab Economic Development) for the year 2008/2009 as good lacked an essential procedure, namely a recommendation therefor by the Fund's Internal Audit Oversight Committee, this report was issued invalidly. The court should have annulled it without substitution, with the resulting effects, particularly reassessment of the respondent's performance in accordance with the correct procedures. However, the challenged judgment departed from the correct course and ruled to rate the respondent's performance as excellent as an effect of this annulment, which contravenes the proper application of the law and the settled jurisprudence of this Court, rendering it defective and requiring its partial cassation in this respect.