Peter Okech Kadamas v Municipality of Kisumu [1985] KECA 40 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order of prohibition lies against the Municipal Council of Kisumu in respect of the Finance, Staff and General Purposes Committee's resolution of December 28, 1983
- 2.Whether the appellants' grievance was a matter of public law or private law only
- 3.Whether prohibition could issue before the full council had acted on the committee's recommendation, and whether the availability of alternative remedies was a bar
- 4.Whether the committee's recommendation was made in excess of jurisdiction and in breach of the rules of natural justice, and whether the reconciliation agreement under the Trade Disputes Act could be reopened
Key legal issues
#Whether employment by a public body is a matter of public law
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.
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.
Whether prohibition lies against a local authority acting other than judicially, and before the final decision
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.
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.
Whether the committee's recommendation breached natural justice and exceeded its powers under the Trade Disputes Act
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.
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.
Whether R v East Berkshire Health Authority ex parte Walsh governed the appeal
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Order of Schofield J dated July 6, 1984 set aside
- 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.Costs of the appeal and of the hearing in the High Court awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Hancox JA delivered the lead judgment. He held that employment by a public body does not of itself make employment rights public, but the committee's conduct infringed the appellants' right to fair treatment and the judge took too narrow a view of their rights; prohibition should have issued.
That to my mind is a glaring infringement of a citizen’s ordinary right to fair treatment.p. 6
Wrote the judgment
Nyarangi JA wrote separately. He held that prohibition lies for departure from natural justice, that a demand-and-refusal prerequisite applies only to mandamus, and distinguished R v East Berkshire Health Authority ex parte Walsh as not in pari materia with the Trade Disputes Act.
Prohibition lies not only for excess of or absence of jurisdiction, but also for departure from rules of natural justice; Halsbury’s Laws of England, 4th edition, vol. 1 para 130 page 138.p. 9
Wrote the judgment
Platt Ag JA wrote separately. He restated Lord Diplock's modern formulation of the scope of judicial review, held that the reconciliation agreement under the Trade Disputes Act injected a public law element into the employment relationship, and found the committee's procedure unfair.
It was the advantageous rights to reinstatement that arose out of the reconciliation agreement that the appellants wished to protect by judicial review, and in my judgment either under the old notions of administrative law, or the new notions of public and private law, this was a public matter in which they were entitled to seek protection.p. 17
- 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
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.
It follows that, in my opinion, the judge took too narrow a view of the appellants’ rights which had been infringed, and that this was not a case in which it should have been decided at the outset that prohibition did not lie.
Prohibition lies not only for excess of or absence of jurisdiction, but also for departure from rules of natural justice
And, whereas courts will, as a general rule, and in the exercise of their discretion refuse an order of mandamus when there is an alternative specific remedy at law which is equally convenient and beneficial, prohibition lies even when there is an alternative remedy.
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.
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 to prohibit the Finance, Staff and General Purposes Committee from continuing with this matter and also to the full council from entertaining in any manner the recommendation of the committee.
I would therefore allow the appeal and set aside the order of Schofield J, of July 6, 1984.
Issues in the judgment
#The judgment contains internally inconsistent dates of delivery: the opening states one date while the closing delivery clause states another.
The date of dismissal is inconsistently stated: the record elsewhere shows suspension on March 20, 1981 and dismissal from June 13, 1981.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.