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Court of AppealDismissedCivil Application No. Nai.20 of 1994 (12/94 UR)· [1994] KECA 60 (KLR)

ERIC V. J. MAKOKHA & 4 others v Lawrence Sagini & 2 others [1994] KECA 60 (KLR)

Court of Appeal of Kenya
1 March 1994
6,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Five lecturers of the University of Nairobi, suspended and dismissed after a strike, obtained ex parte injunctions restraining their eviction from subsidised staff housing. Shah J dismissed their inter partes application for a temporary injunction, holding their contracts were not statutorily underpinned and damages were an adequate remedy, but gave them seven days to renew the application in the Court of Appeal under Rule 5(2)(b). Before a deliberately enlarged bench of five judges, the applicants argued that their employment, governed by the University of Nairobi Act and its statutes, was guaranteed by statute as held in the Nyamogo case. The court construed 'statutory underpinning' as meaning tenure protected or removal conditioned by statute, and held lecturers enjoyed no such protection: by the mutuality rule, their only remedy for wrongful termination was damages and a declaration. The court examined the Nyamogo ruling and held it was given per incuriam for failing to construe regulation 5(1)(d) of the Pensions Regulations, which authorised compulsory retirement, and for granting a futile injunction against an already-completed retirement; it therefore declined to treat it as binding precedent. Reaffirming the Rule 5(2)(b) principles from Githunguri and J.K. Industries, the court found no arguable case and dismissed the stay application. It declined immediate eviction, ordering eviction on 1st April 1994 if satisfactory arrangements were not made by 31st March, and awarded the respondent costs certified for two Counsel.

Key legal issues

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01

Whether the lecturers' contracts of employment were statutorily underpinned

Holding

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

Reasoning

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.

p. 5
02

Whether the Nyamogo ruling was binding precedent

Holding

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

Reasoning

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'.

p. 8
03

The proper remedy for wrongful termination of a contract of personal service

Holding

Damages (and a declaration), not injunction or specific performance

Reasoning

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.

p. 10
04

Whether the High Court's refusal of a temporary injunction should be stayed

Holding

No stay granted; the applicants failed the arguable-case limb of the Rule 5(2)(b) test

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Application for stay of execution dismissed; orders prayed for by the applicants cannot be granted
  2. 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. 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
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)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.