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Court of AppealAllowedCivil Appeal (from Kisumu High Court Civil Application No. 3 of 1984)· [1985] KECA 40 (KLR)

Peter Okech Kadamas v Municipality of Kisumu [1985] KECA 40 (KLR)

Court of Appeal of Kenya
24 June 1985
12,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a council committee could not quietly reverse a legally settled reinstatement agreement without hearing the affected employees, and stopped it.

What this practically means

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Executive summary

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The appellants, clerical officers of the Municipal Council of Kisumu, were dismissed in 1981 over alleged irregular medical reimbursement claims. The matter became a trade dispute under the Trade Disputes Act (cap 234); an investigator appointed by the Minister of Labour recommended reinstatement, and the council resolved on October 7, 1983 to reinstate them, with terms accepted in writing. Two months later the council's Finance, Staff and General Purposes Committee recommended that the earlier summary dismissal be reaffirmed, without hearing the appellants. They applied for an order of prohibition, but Schofield J refused relief, holding that the matter was a private employment dispute in which prohibition would not lie. The Court of Appeal unanimously allowed the appeal. Hancox JA, Nyarangi JA and Platt Ag JA each delivered judgments. The court held that prohibition lies both for excess of jurisdiction and for departure from the rules of natural justice; that it may issue at an interlocutory stage before the final decision; that the availability of alternative remedies is no bar; and that the obsolete judicial/administrative distinction could no longer restrict the remedy in Kenya. The Trade Disputes Act reconciliation process injected a public law element into the reinstatement agreement, which neither the committee nor the council could lawfully reopen. Ex parte Walsh was distinguished as not in pari materia. The order of Schofield J was set aside and prohibition was granted restraining the committee and the full council from acting on the December 28, 1983 recommendation, with costs to the appellants.

Key legal issues

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01

Whether employment by a public body is a matter of public law

Holding

Employment by a public authority does not per se make the employment relationship public law; but here the statutory reconciliation process under the Trade Disputes Act injected a public law element, and the rights acquired under the reinstatement agreement were capable of enforcement by prohibition.

Reasoning

Hancox JA accepted that ordinary master-and-servant rights are private contractual rights, but the appellants' dismissals had been reversed following the Minister's investigation and a reinstatement agreement accepted by both sides. A subordinate committee's attempt to reaffirm the dismissals, without hearing the appellants, infringed their right to fair treatment. The court held the rights acquired under the agreement enforceable by restraining the council from acting on the December 28 resolution.

p. 4
02

Whether prohibition lies against a local authority acting other than judicially, and before the final decision

Holding

Prohibition lies against any body of persons with legal authority affecting the rights of subjects, whether acting judicially or administratively, and it may issue at an early stage once excessive jurisdiction has begun to be exercised.

Reasoning

Following R v Electricity Commissioners and O'Reilly v Mackman, Platt Ag JA and Nyarangi JA held that Atkin LJ's 'duty to act judicially' limitation had been abolished by Ridge v Baldwin and Lord Diplock's formulation. Bankes LJ's reasoning showed prohibition could issue while proceedings were still at an interlocutory stage, so the appellants need not wait for the full council to decide.

p. 13
03

Whether the committee's recommendation breached natural justice and exceeded its powers under the Trade Disputes Act

Holding

The Finance, Staff and General Purposes Committee acted in excess of jurisdiction and unfairly by recommending reaffirmation of dismissals already settled by a reconciliation agreement, without hearing the appellants.

Reasoning

Once the dispute was settled and the reinstatement agreement lodged with the Minister, the parties could not abrogate it. The committee was asking the council to infringe a statute. Its failure to give the appellators notice or a hearing, and the likelihood that committee members would dominate the full council, meant the council could not be seen to act fairly.

p. 9
04

Whether R v East Berkshire Health Authority ex parte Walsh governed the appeal

Holding

Ex parte Walsh was distinguished and held not applicable: the Kenyan statutory framework under the Trade Disputes Act is not in pari materia with the English employment protection legislation.

Reasoning

In Walsh the contract was underpinned by English statutory regulations and the dismissal itself was challenged; here the dismissal had already been reversed under the Kenyan reconciliation machinery, and the challenge was to the attempted reopening of that settlement. Nyarangi JA and Platt Ag JA both declined to import the English public/private law dichotomy as developed there.

p. 11

Legal principles established

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  • The prerogative order of prohibition lies to restrain inferior bodies not only for excess or absence of jurisdiction but also for departure from the rules of natural justice, and it may issue at an interlocutory stage before the final decision is taken.
  • The availability of an alternative remedy is no bar to the grant of prohibition.
  • The distinction between judicial and administrative acts is no longer required before judicial review may issue; the modern test follows Lord Diplock's broadening of Atkin LJ's formulation in R v Electricity Commissioners.
  • Once a trade dispute has been settled by a reinstatement agreement under the Trade Disputes Act and acted upon by the parties, a subordinate committee of the employer cannot lawfully reopen it; doing so engages public law remedies by way of prohibition.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of Schofield J dated July 6, 1984 set aside
  3. 3.Order of prohibition granted in the terms sought by the applicants in the High Court, prohibiting the Finance, Staff and General Purposes Committee from continuing with the matter and the full council from entertaining the committee's recommendation
  4. 4.Costs of the appeal and of the hearing in the High Court awarded to the appellants
On appeal from
High Court of Kenya at Kisumu
Civil Application No. 3 of 1984
Jurisdiction invoked
First appeal to the Court of Appeal against refusal of leave/order in judicial review (Order 53 Civil Procedure Rules); no constitutional or statutory appellate provision is expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Okech Kadamas v Municipality of Kisumu [1985] KECA 40 (KLR)", Case Analysis (1985). Civil Appeal (from Kisumu High Court Civil Application No. 3 of 1984). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/40/eng@1985-06-24

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