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Court of AppealDismissedCivil Appeal No. 113 of 1997

Wycliffe Makokha & 3 others v Nairobi City Council [1997] KECA 211 (KLR)

Court of Appeal
24 October 1997
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.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order of prohibition could issue to stop the Council from instituting dismissal proceedings against employees who had only been interdicted and called upon to show cause
  2. 2.Whether the employees' application for leave to apply for judicial review was premature
  3. 3.Whether the High Court judge's refusal of leave should stand despite being based on wrong reasoning

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

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

Relief refused

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Leave to apply for an order of prohibition against the Council's dismissal proceedings and an order that leave operate as a stay

The application was premature because no dismissal proceedings had been instituted; the employees had been given an opportunity to show cause and had not used it

p. 2

Costs

The appeal is dismissed but with no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

They sought orders to prohibit the Council from instituting dismissal proceedings when they were not yet dismissed. To that extent the application was premature.
p. 2Prematurity of prohibition before disciplinary proceedings are instituted
The plain fact is that (and it bears repetition) the appellants came to court too soon.
p. 3Exhaustion of the show-cause process before resort to judicial review
This appeal is dismissed but with no order as to costs.
p. 3Final orders and costs

Issues in the judgment

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minor

The judgment describes the Kadamas dismissal as effective from suspension on 20th March, 1989 while the case is reported as [1982-88] 1 KAR 838 and the reinstatement events are dated 1983 - an internal chronological inconsistency.

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, "Wycliffe Makokha & 3 others v Nairobi City Council [1997] KECA 211 (KLR)", 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.