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Court of AppealPartially AllowedCivil Appeal (Nairobi)· [1997] KECA 58 (KLR)

Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) (Civil Appeal 266 of 1996) [1997] KECA 58 (KLR)

Court of Appeal of Kenya
21 March 1997
ROR. S. C. OmoloPhilip Kiptoo TunoiK. TunoiASA. B. Shah
5,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that only certiorari can quash a decision already made — prohibition and mandamus were the wrong remedies against cancelled exam results.

What this practically means

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Executive summary

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The Kenya National Examinations Council appealed against a High Court decision (Kuloba, J.) granting judicial review orders compelling it to release 1994 KCPE results in two subjects that it had cancelled for examination irregularities, and directing an inquiry into damages if it could not comply. The Court of Appeal allowed the appeal in a single judgment of the whole court. It took the opportunity to set out the efficacy and scope of the three prerogative remedies. Prohibition is directed to the future only: it forbids an inferior tribunal from continuing proceedings in excess of jurisdiction or contrary to law, but cannot quash a decision already made. Mandamus compels performance of a public statutory duty that has been refused or neglected, but cannot dictate the manner of discretionary performance or undo what has been done. Only certiorari can quash a completed decision, and it will lie where the decision was made without or in excess of jurisdiction or in breach of natural justice. Since the Council's assertion that it had cancelled the results was never challenged, the respondents' proper course was to seek certiorari first; prohibition and mandamus were inappropriate and futile. The Court also held that the judge could not grant an inquiry as to damages that was never pleaded or raised, applying Provincial Insurance v Nandwa. All the High Court orders were set aside and the motion dismissed with costs, payable only by the first respondent, who was the chief actor in the litigation. The Court expressly left open whether a candidate must be heard before results are cancelled.

Key legal issues

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01

Scope and efficacy of an order of prohibition

Holding

Prohibition lies to forbid an inferior tribunal from continuing proceedings in excess of jurisdiction or in contravention of the law or rules of natural justice, but only prospectively; it cannot quash a completed decision

Reasoning

Drawing on Halsbury's Laws of England and the Githunguri case, the court explained that prohibition looks to the future: it prevents a contemplated decision, such as stopping a trial that would abuse process. Where a decision has already been made, whether in excess of jurisdiction or in breach of natural justice, the correct remedy is certiorari, which quashes. Applying this, the Council had already cancelled the results, so prohibition was ineffective against that cancellation.

p. 6
02

Scope and efficacy of an order of mandamus

Holding

Mandamus compels performance of a public duty imposed by statute where the duty-holder fails or refuses to perform it, but cannot compel performance in a specific manner, cannot quash what has been done, and cannot force exercise of a discretion in a particular way

Reasoning

Using the Liquor Licensing Act and the Council's own statute as illustrations, the court held that mandamus commands no more than the party is legally bound to perform. The High Court could compel the Council to conduct examinations, mark papers or declare results if it refused, but could not dictate marks or force an examination at a particular time, since those are discretionary. Where the complaint is that a duty was wrongly performed, mandamus is the wrong remedy.

p. 8
03

Availability of remedies on the facts

Holding

Since the Council had cancelled the results and that assertion was never challenged as false, the respondents' proper course was certiorari to quash the cancellation followed by mandamus; prohibition and mandamus alone were inappropriate

Reasoning

The respondents never alleged the Council lied about cancelling the results, and the trial judge made no such finding. Releasing cancelled results would be futile and would multiply suits. Had certiorari been sought, the Council might have had to justify the cancellation. The judge's condemnation of the Council as secretive and arbitrary was unjustified on the material before him.

p. 8
04

Grant of unpleaded relief (inquiry as to damages)

Holding

A court cannot grant relief on an issue never pleaded, agreed or raised by the parties; that part of the judgment could not stand

Reasoning

Neither prayer in the respondents' motion sought an inquiry as to damages, the issue was not among the agreed issues, and even counsel for the respondents did not support that order. Following Provincial Insurance Co v Nandwa, the court held it was not open to the judge to deal with the unpleaded issue, and that part of the judgment had to fall.

p. 5
05

Whether a candidate must be heard before cancellation of results

Holding

Obiter: the court inclined to the view that insisting on a hearing before cancellation might place an unnecessarily heavy burden on the Council and destroy confidentiality, but expressly left the question for another occasion

Reasoning

The court distinguished marking (which must remain confidential and requires no hearing before a fail) from cancellation (where different considerations may apply). Because of the mode of pleadings, the natural justice question was not directly raised, so the court declined to determine it conclusively, noting only its tentative inclination.

p. 9

Legal principles established

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  • Prohibition is prospective only; it cannot quash a decision already made
  • Mandamus compels performance of a public statutory duty, but cannot quash what has already been done or dictate the manner of discretionary performance
  • Only certiorari can quash a decision already made, and it will issue where the decision is made without or in excess of jurisdiction or in breach of natural justice
  • A judge may not grant relief on an issue that was never pleaded or raised by the parties
  • Courts should not make futile orders and should avoid multiplicity of suits

Court orders

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  1. 1.Appeal allowed
  2. 2.All orders made by the learned Judge set aside
  3. 3.Substituted with an order dismissing with costs the notice of motion dated 18th April 1995 lodged in the High Court
  4. 4.Costs of the appeal awarded to the Council, to be paid only by the first respondent, Mr. GGN

Authorities

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Legislation

  • Kenya National Examinations Council ActSections 3(1), 3(2), 10, 10(a), 10(1), 10(b), 14
  • Law Reform ActSection 8, Part VI
  • Civil Procedure (Revised) RulesOrder 53
  • Administration of Justice (Miscellaneous Provisions) Act, 1938 (UK)Section 7
  • Liquor Licensing ActSections 4(1), 8
  • Prisons Act

Cases cited (4)

  • Provincial Insurance Company of East Africa Ltd v Mordekai Mwanga Nandwa
    Civil Appeal No. 179 of 1995 (unreported)
  • Stanley Munga Githunguri v Republic
    Criminal Application No. 271 of 1985 (unreported)
  • David Oloo Onyango v Attorney General
    Civil Appeal No. 152 of 1986 (unreported)
  • Daniel Nyongesa & Others v Egerton University College
    Civil Appeal No. 90 of 1989
On appeal from
High Court of Kenya
Judicial review motion dated 18th April 1995
Jurisdiction invoked
First appellate jurisdiction over the High Court's decision on an Order 53 judicial review application (Law Reform Act, Cap 26 and Order 53 of the Civil Procedure (Revised) Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) (Civil Appeal 266 of 1996) [1997] KECA 58 (KLR)", Case Analysis (1997). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/58/eng@1997-03-21

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