ERIC V. J. MAKOKHA & 4 others v Lawrence Sagini & 2 others [1994] KECA 60 (KLR)
The bottom line
#The Court of Appeal ruled that unfairly dismissed Kenyan university lecturers must claim damages, not reinstatement, because their jobs lacked statutory tenure protection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants had an arguable case that their contracts of employment with the University of Nairobi were statutorily underpinned within the meaning of the Nyamogo case
- 2.Whether withholding a stay of execution would render the intended appeal nugatory
- 3.Whether the Nyamogo ruling was binding precedent or was given per incuriam and could be declined
- 4.Whether equitable remedies (injunction/specific performance) can underpin a contract of personal service
Key legal issues
#Whether the lecturers' contracts of employment were statutorily underpinned
They were not; nothing in the University of Nairobi Act or its statutes protected their tenure, and they could point to no statute conferring a right of reinstatement
The court construed 'statutory underpinning' by its primary meaning - to strengthen. It gave examples of genuinely protected positions (judges under Section 61 of the Constitution, the University auditor under Section 23(3)). Lecturers could terminate on notice and could not be compelled by specific performance; by mutuality, their only remedy against the University is damages. Even if the University statutes were subsidiary legislation, the applicants' employment was not protected by it.
Whether the Nyamogo ruling was binding precedent
It was per incuriam because it failed to consider and construe regulation 5(1)(d) of the Pensions Regulations on which the Corporation relied, so it could be declined
The Nyamogo court rejected a perfectly sound submission and founded itself instead on regulation 8(2), which concerns early retirement with consent and had nothing to do with compulsory retirement on reorganisation. Had it construed regulation 5(1)(d), it would have found the Corporation's action statutorily authorised and the applicants' case unarguable. The court also noted the injunction was futile since the retirement had already taken effect, rendering it 'a pious farce'.
The proper remedy for wrongful termination of a contract of personal service
Damages (and a declaration), not injunction or specific performance
The court reaffirmed the settled common law rule that breach of a contract of personal service cannot be redressed by equitable remedies, noting the few English cases granting declarations represent exceptions with inconsistent ratios. The mutuality rule precludes specific performance either way, and to compel performance of personal service would turn a contract of service into a status of servitude.
Whether the High Court's refusal of a temporary injunction should be stayed
No stay granted; the applicants failed the arguable-case limb of the Rule 5(2)(b) test
Applying the principles in Githunguri and J.K. Industries, the applicants could not present an arguable case because their employment was not statutorily underpinned and their remedy lay in damages. Once the contract of employment ended, the fringe benefit of subsidised housing went with it. The court gave them a grace period to make arrangements with the University before eviction.
Legal principles established
#- An employment contract is only 'statutorily underpinned' where a statute expressly protects tenure or prescribes formal removal requirements; where damages are an adequate remedy, equitable remedies cannot be used to underpin a contract of personal service.
- A ruling given without considering and construing the relevant regulation relied on is per incuriam and loses binding authority as precedent.
- Equity will not grant an injunction that is futile or incapable of effective compliance; relief is assessed on the facts as at the date of judgment, not the date of the plaint.
- The Rule 5(2)(b) principles: the applicant must show an arguable case and that the stay, if withheld, would render the appeal nugatory.
- A five-judge bench of the Court of Appeal may sit to review an inconsistent or doubtful decision of a three-judge bench, though it cannot reverse it, only decline to follow it.
Court orders
#- 1.Application for stay of execution dismissed; orders prayed for by the applicants cannot be granted
- 2.If the applicants fail to enter into arrangements satisfactory to the University on or before 31st March next, there will be an order for their eviction from their University provided residences on 1st April next
- 3.Applicants to pay the costs of this application to the respondent, certified for two Counsel in view of the complexity of the matters canvassed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 73 of 1994
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary jurisdiction to grant stay of execution pending intended appeal)
Relief refused
#Stay of execution of the High Court ruling (eviction from University residences) pending intended appeal
Applicants had no arguable case; their employment was not statutorily underpinned and damages are their proper remedy
Costs
The applicants will pay the costs of this application; costs for the respondent certified for two Counsel in view of the complexity of the matters canvassed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our order therefore, is that if the applicants fail to enter into arrangement satisfactory to the University on or before the 31st March next, there will be an order for their eviction from their University provided residences on the 1st April next. The applicants will pay the costs of this application. In view of the complexity of the matters canvassed before us, we certify costs for the respondent for two Counsel.
we are driven with more than little regret to the conclusion that the orders prayed for by the applicants cannot be granted.
As the Court omitted to do so, its decision was given per incuriam within the true meaning intendment of those words. That view is sufficient to deny the Nyamogo holding the authority of a binding precedent.
The very first principle of injunction law is that prima facie, you do not obtain injunction to restrain actionable wrongs for which damages are a proper remedy
first, the applicant must present an arguable case for the consideration of the Court of Appeal and second, the application must show that if the stay is withheld, it would render the intended appeal nugatory
the practice of constituting a bench of 5 judges to have a second look at a doubtful decision of a court of three is a sensible one and meets a felt judicial need of this country
Issues in the judgment
#The judgment text contains a corruption/typographical error rendering the leading case name as 'Geilla v Cassman Brown', inconsistent with the conventional spelling 'Giella v Cassman Brown'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Magaiwa v Magige & another (Environment and Land Miscellaneous Application 7 of 2020) [2026] KEELC 5368 (KLR)[2026] KEELC 5368 (KLR)12 Aug 2026applied
Cite this brief
#Cite this brief
Caselaw, "ERIC V. J. MAKOKHA & 4 others v Lawrence Sagini & 2 others [1994] KECA 60 (KLR)", Case Analysis (1994). Civil Application No. Nai.20 of 1994 (12/94 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/60/eng@1994-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.