Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that ordinary employees cannot get reinstatement or injunctions—only compensation—unless a statute expressly protects their jobs.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants' employment was statutorily underpinned
It was not; no statute expressly guaranteed the lecturers' tenure, and only contracts of employment. Damages were the sole remedy for wrongful termination.
The court examined the University of Nairobi Act, the University statutes and the conditions of service, and found no provision protecting tenure. By section 19 of their terms of service lecturers could resign on notice; by section 23 the University could remove for good cause. The example of a statutorily underpinned office was the university auditor, whose termination needed ministerial and Auditor-General consent. Equitable remedies being mutual, lecturers who could not be compelled to serve by specific performance could not obtain specific performance or reinstatement against the University.
Whether the Nyamogo ruling binds and was correctly decided
It was decided per incuriam because the Court failed to construe regulation 5(1)(d) of the Pensions Regulations on which the Corporation relied, and wrongly granted an injunction against an act already completed; it is deprived of binding authority.
Regulation 5(1)(d) plainly authorised compulsory retirement for reorganisation, efficiency or economy, dispensing with prior notice. The Nyamogo court instead relied on regulation 8(2) (early retirement by agreement), an entirely different provision. Further, the retirement had already taken effect on 6 April 1993, so the October 1993 injunction was ineffectual in equity. The court constituted a five-judge bench to review the ruling and declined to follow it.
The principles governing stay of execution under rule 5(2)(b)
The twin tests are an arguable case and nugatory appeal, but their application depends on the facts of each case; here the applicants failed the arguable-case test.
Applying Githunguri and J K Industries, the court examined the ex facie merit of the legal argument, as Nyamogo itself had done. Since the lecturers' contracts were ordinary master-and-servant contracts with damages as the remedy, and their dismissal followed properly constituted disciplinary proceedings, no arguable case with probability of success was presented, and equitable relief was unavailable.
Whether the practice of constituting a five-judge bench to review doubtful decisions should be followed
Yes; in the absence of a second-tier appellate court in Kenya, a five-judge bench sensibly allows a wrong decision to be identified quickly.
The court invoked the practice adopted in Income Tax [1974] EALR 546 and Trouistik Union International v Jane Mbeyu, and preferred Viscount Dilhorne's speech in Hudson v Sainz that a clearly wrong recent decision is easier not to follow than an old one. Since even a five-judge court can only refuse to follow, not reverse, a three-judge ruling, certainty of the law demands prompt identification of error.
Legal principles established
#- A Court of Appeal decision rendered per incuriam does not bind the court or subordinate courts as precedent.
- Breach of a contract of personal service is redressed by damages, not by injunction, specific performance or declaration.
- Ordinary contracts of employment (e.g. university lecturers) are not statutorily underpinned unless a statute expressly guarantees tenure and prescribes conditions of removal.
- A discretionary administrative power exercised bona fide for the purpose for which it was conferred is not reviewable on its merits by the court.
- Equity will not grant an injunction that is ineffective or in vain because the act sought to be restrained has already occurred.
Court orders
#- 1.Dismissal of the applicants' application for stay of execution under rule 5(2)(b)
- 2.The applicants to vacate their university-provided official residences
- 3.If the applicants fail to enter into arrangements satisfactory to the University on or before 31st March 1994, an order for their eviction on 1st April 1994
- 4.The applicants to pay the costs of the application
- 5.Costs certified for the respondent for two counsel
- On appeal from
- High Court of Kenya
- not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary jurisdiction to grant stay of execution/injunction pending appeal)
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.
- Kikambala Housing Estate Limited v Bank of Africa Limited & 1 other[2025] KECA 938 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] KECA 75 (KLR)", Case Analysis (1994). Civil Application (Nairobi) – stay of execution application under rule 5(2)(b) (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/75/eng@1994-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.