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Court of AppealDismissedCivil Appeal No. 113 of 1997· [1997] KECA 211 (KLR)

1. Wycliffe Makokha 2. Muriuki Kinoti 3. John Waiganjo 4. Githinji Wohoro v Nairobi City Council

Court of Appeal
24 October 1997
Philip Kiptoo TunoiP. K. TunoiASA. B. ShahGPG. S. Pall
997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts won't stop disciplinary proceedings before they start—employees must first respond to a show-cause letter before seeking judicial review.

What this practically means

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Executive summary

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Four employees of the Nairobi City Council's Department of City Planning and Architecture were by letters dated 5th May 1997 interdicted with half salary and required within ten days to show cause why their services should not be dispensed with for gross misconduct, under Rule 23 of the Public Service Commission (Local Authority Officers') Regulation 1984. Rather than respond to the show-cause letters, they sought leave in the High Court to apply for an order of prohibition to stop the Council from instituting dismissal proceedings, with leave to operate as a stay. Kuloba J refused leave in a terse ruling, holding that fear of dismissal from employment cannot found judicial review since wrongful dismissal is dealt with under a different process. On appeal, the Court of Appeal (Tunoi, Shah and Pall, JJ.A) held that no dismissal proceedings had yet been instituted, so the application was premature: the employees had been given an opportunity to show cause, could have sought more time, and did neither. The appellants' authorities - Kadamas, Mirugi Kariuki and Kisima Farm - were distinguished or found unhelpful on the facts. Although the learned judge had reached his decision by wrong reasoning, the Court affirmed the outcome as correct. The appeal was dismissed with no order as to costs. The binding proposition is that prohibition will not lie to prevent disciplinary or dismissal proceedings that have not yet commenced, where the employee has an unexhausted opportunity to show cause.

Key legal issues

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01

Prematurity of judicial review where dismissal proceedings have not commenced

Holding

The employees, having been interdicted and called upon to show cause, came to court too soon; prohibition could not issue to prevent proceedings not yet instituted.

Reasoning

The letters interdicted the employees with half salary and required them within ten days to show cause why their services should not be dispensed with. No dismissal proceedings had been instituted. Instead of showing cause or seeking more time, they moved to court. The Court held the application premature and dismissed the appeal, affirming the result though not the reasoning of the High Court.

p. 3
02

Distinguishability of Kadamas and Mirugi Kariuki

Holding

Both authorities relied on by the appellants were distinguishable on the facts.

Reasoning

In Kadamas the employees had actually been dismissed and the particular circumstances called for prohibition; here there was no dismissal. In Mirugi Kariuki the decision-maker had not allowed the applicant to show cause; here the employees were given that opportunity and did not take it. Kisima Farm merely decided that a right of appeal did not preclude prohibition and did not assist.

p. 2

Legal principles established

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  • An application for prohibition to stop disciplinary or dismissal proceedings is premature where those proceedings have not yet been instituted and the employee has been given, but has not used, an opportunity to show cause.
  • An appellate court may affirm a correct result reached by the court below even where that court reasoned wrongly.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 479 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court in a judicial review (leave) application, under the Court of Appeal's appellate jurisdiction

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, "1. Wycliffe Makokha 2. Muriuki Kinoti 3. John Waiganjo 4. Githinji Wohoro v Nairobi City Council", Case Analysis (1997). Civil Appeal No. 113 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/211/eng@1997-10-24

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