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Court of AppealAllowedCivil Appeal No 109 of 1984

KADAMAS & ANOTHER vs MUNICIPALITY OF KISUMU [1985] KECA 143 (KLR)

Court of Appeal of Kenya
29 November 1985
12,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a council committee couldn't secretly reverse workers' reinstatement, and courts will intervene before decisions are finalized.

What this practically means

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Executive summary

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Two clerical officers of the Municipal Council of Kisumu were dismissed in 1981 over irregular medical claims. The dispute became a trade dispute under the Trade Disputes Act (cap 234); the Minister of Labour appointed an investigator who recommended reinstatement, and on October 7, 1983 the council, meeting as heads of departments, resolved to reinstate the appellants, who accepted the terms. Two months later the Finance, Staff and General Purposes Committee recommended that the earlier dismissal be reaffirmed, without hearing the appellants. Schofield J refused prohibition, holding that the council was acting in its private capacity as employer and that only private rights were involved. The Court of Appeal (Hancox, Nyarangi JJA and Platt Ag JA, each giving a separate judgment) unanimously allowed the appeal. It held that the ministerial reconciliation agreement under the Trade Disputes Act injected a public law element which the council could not lawfully reverse; that a subordinate committee could not purport to reverse a decision of the parent body implementing such a settlement; that the committee's behind-the-back recommendation breached natural justice; and that prohibition lies for excess of jurisdiction and departure from natural justice, is not fettered by alternative remedies, and may issue before the full council acts. The court set aside the High Court order, issued the order of prohibition against the committee and the full council, and awarded the appellants the costs of the appeal and of the High Court hearing.

Questions the Court framed

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

  1. 1.Whether an order of prohibition lies against the Municipal Council of Kisumu in respect of its conduct as an employer, i.e. whether the matter involved public law rather than private law rights
  2. 2.Whether the Finance, Staff and General Purposes Committee could lawfully recommend reaffirmation of the appellants' dismissal after the full council had resolved to reinstate them following settlement of a trade dispute under the Trade Disputes Act
  3. 3.Whether the committee's recommendation breached the rules of natural justice, and whether the appellants could apply for prohibition before the full council had acted
  4. 4.Whether the availability of alternative remedies, or the absence of a demand and refusal, barred the application for prohibition

Key legal issues

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01

Whether the employment dispute involved public law rights amenable to judicial review

Holding

The ministerial intervention and reconciliation agreement under the Trade Disputes Act gave the appellants public law rights which the court would protect; the judge below took too narrow a view.

Reasoning

Although employment by a public body does not per se raise public law, the Kenyan minister invoked a local statute, appointed an investigator, and the council accepted the resulting reinstatement agreement. That statutory reconciliation process altered the parties' positions so the council could not lawfully reopen it. The rights acquired by the appellants were capable of enforcement by restraining the council, and refusing prohibition would not meet the justice of the case.

p. 7
02

Scope of the order of prohibition in Kenya

Holding

The old Halsbury 3rd edition formulation requiring a duty to act judicially is out of date; following Ridge v Baldwin and O'Reilly v Mackman, prohibition issues against any body with legal authority affecting rights, for error of law, excess of jurisdiction, or unfairness.

Reasoning

Lord Diplock in O'Reilly v Mackman broadened Atkin LJ's formulation by excluding the 'duty to act judicially' limitation, and Ridge v Baldwin destroyed the distinction between quasi-judicial and administrative acts. Simpson J in the Minister of Agriculture's case had already adopted Padfield and Ridge v Baldwin in Kenya. The learned judge was led into too narrow a view of prohibition.

p. 14
03

Natural justice and timing of the prohibition application

Holding

The committee's recommendation made behind the appellants' back breached natural justice and justified fears of an unfair hearing before the full council; the appellants did not have to wait for the council's final decision.

Reasoning

The council frustrated the appellants' 'need to know' by making the recommendation behind their back, contrary to natural justice. Prohibition lies to stop proceedings at an early stage where the final decision would be liable to be quashed on certiorari, and its grant is not fettered by alternative remedies or by the absence of a demand and refusal, which is a prerequisite only for mandamus.

p. 12
04

Effect of the purported dissolution of the council

Holding

Under section 12(3) of the Local Government Act the municipality is a body corporate with perpetual succession, so the purported dissolution had no effect on the validity of the October 7 reinstatement resolution.

Reasoning

The committee's reason for reaffirming the dismissal was that the reinstatement decision was taken while the council was dissolved for the 1983 Local Government Elections. The court rejected this: the council, as a body corporate with perpetual succession under section 12(3), remained capable of making decisions notwithstanding the dissolution circular.

p. 4
05

Distinguishing R v East Berkshire Health Authority Ex parte Walsh

Holding

Ex parte Walsh is distinguishable: it turned on English employment protection legislation not in pari materia with the Trade Disputes Act, and the Kenyan appellants were at a different stage - their dismissal had already been reversed by agreement.

Reasoning

In Ex parte Walsh the contract incorporated statutory conditions of service and the question was whether statutory underpinning injected public law. In the present case the appellants had pursued the reconciliation process under the Trade Disputes Act, the settlement had been agreed, and the dismissal was no longer effective; unlike England, Kenya has no exact parallel to 'unfair dismissal' and the Industrial Court is not a forum of direct appealable jurisdiction.

p. 12

Legal principles established

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  • Prohibition lies against bodies of persons having legal authority to determine questions affecting the rights of subjects, whether or not they claim to be courts, and no longer requires a duty to act judicially in the old sense.
  • Prohibition lies both for excess or absence of jurisdiction and for departure from the rules of natural justice, and may issue notwithstanding the availability of an alternative remedy.
  • A subordinate committee of a local authority cannot lawfully reverse or recommend reversal of a decision of the parent body implementing a settlement of a trade dispute under the Trade Disputes Act without breaching public law rights and natural justice.
  • Once a trade dispute is settled by an agreement under the Trade Disputes Act, the parties cannot abrogate it and a ministerially brokered reinstatement agreement injects a public law element that courts will protect by judicial review.
  • It is unnecessary to wait for the final decision of the full council; prohibition may issue once the process of exercising excessive jurisdiction has begun.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of Schofield J of July 6, 1984 dismissing the prohibition application set aside
  3. 3.An order of prohibition issued directed at the council prohibiting the Finance, Staff and General Purposes Committee from continuing with the matter and prohibiting the full council from entertaining in any manner the committee's recommendation
  4. 4.Costs of the appeal and of the hearing in the High Court awarded to the appellants

The bench

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

HA
majority

Wrote the judgment

Hancox JA delivered the leading judgment. He held that the judge below took too narrow a view of the appellants' rights: the council's reinstatement of the appellants following the Trade Disputes Act reconciliation was effective, and the Finance, Staff and General Purposes Committee's purported reaffirmation of their dismissal by a lesser body reversing a decision of the parent body, without hearing the appellants, infringed their public law rights to fair treatment. He would allow the appeal, set aside the order of Schofield J, grant the order of prohibition in the terms sought, and award costs to the appellants.

What greater infringement of a person’s public law rights could there be than that which occurred here?p. 7
majority

Wrote the judgment

Nyarangi JA, in a separate judgment, held that once the trade dispute was settled by agreement under the Trade Disputes Act and the appellants reinstated, the committee was asking the council to infringe a statute by resurrecting the 1981 dismissal. Prohibition lies not only for excess or absence of jurisdiction but also for departure from rules of natural justice, and its grant is not fettered by the availability of an alternative remedy. He distinguished R v East Berkshire Health Authority Ex parte Walsh as turning on English legislation not in pari materia with the Kenyan Trade Disputes Act.

Prohibition lies not only for excess of or absence of jurisdiction, but also for departure from rules of natural justicep. 10
PL
PlattAg JA
majority

Wrote the judgment

Platt Ag JA, also writing separately, restated the modern scope of prohibition following O'Reilly v Mackman and Ridge v Baldwin: the old requirement of a 'duty to act judicially' no longer limits the writ, and Halsbury 3rd edition vol XI on the topic is out of date in Kenya. He held that the ministerial intervention under the Trade Disputes Act injected a public law element into the reinstatement agreement, which neither the committee nor the council could lawfully reopen, and that the committee's procedure breached natural justice.

Neither the committee nor the council itself could reopen the reinstatement agreement, without giving rise to public law rights in the appellantsp. 18
On appeal from
High Court of Kenya at Kisumu
Civil Application No 3 of 1984
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a first appeal from the High Court (specific provision not stated in the judgment)

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.

I would therefore allow the appeal and set aside the order of Schofield J, of July 6, 1984.
p. 8Disposition - reversal of the High Court order
I would give the costs of this appeal and the costs of the hearing in the High Court to the appellants.
p. 12Final orders - costs
I would allow the appeal, set aside the order made on July 6, 1984, in Civil Application No 3 of 1984 and order that an order of prohibition be directed at the council
p. 12Final orders - prohibition issued (Nyarangi JA)
Prohibition lies not only for excess of or absence of jurisdiction, but also for departure from rules of natural justice
p. 10Grounds for prohibition
One can say categorically that volume XI of 3rd edition of Halsbury’s Law of England should no longer be used on this topic. It is out of date in England; it is also out of date in Kenya.
p. 14Modern scope of judicial review in Kenya
under the Trade Disputes Act, once there is an agreement it appears it is beyond the powers of the parties to abrogate.
p. 10Binding effect of a trade dispute settlement agreement
Once the process of exercising excessive jurisdiction had begun, it could be stopped.
p. 13Timing of prohibition

Issues in the judgment

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minor

The judgment's list of cases gives inconsistent citations for the same authority: Davy v Spelthorne Borough Council appears as [1934] AC 262 and later as [1983] 3 1 All ER 278, and Platt Ag JA refers to 'Davis v Spelthorne BC, [1983] 3 All ER 278' whereas the correct name is Davy.

minor

Dates of dismissal are inconsistent within the judgment: the opening narrative states the appellants were suspended on March 20, 1981 and the statement of facts records dismissal on June 13, 1981, while Hancox JA later refers to 'the termination of the applicant’s services on June 3, 1981'.

minor

The Ex parte Akkersdyk citation is given as [1982] 1 QB 190, and Queen v LCC Ex parte Ferwenia as [1892] 1 QB 190 - the identical page reference for different cases suggests a typographical error in the report.

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, "KADAMAS & ANOTHER vs MUNICIPALITY OF KISUMU [1985] KECA 143 (KLR)", Case Analysis (1985). Civil Appeal No 109 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/143/eng@1985-11-29

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