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Court of AppealPartially AllowedCivil Appeal No. 266 of 1996· [1997] KECA 411 (KLR)

KENYA NATIONAL EXAMINATIONS COUNCIL vs REPUBLIC [1997] KECA 411 (KLR)

Court of Appeal
21 March 1997
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiASA.B. Shah
5,922 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 cancel an already-made decision; prohibition and mandamus cannot undo what has been done.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal by the Kenya National Examinations Council against a High Court decision (Kuloba, J) which had ordered the Council to release 1994 KCPE results in two subjects it had cancelled for examination irregularities, with an alternative inquiry as to damages. The respondents had sought only orders of prohibition and mandamus. The appellate court took the opportunity to set out authoritatively the efficacy and scope of the three judicial review remedies. Prohibition is prospective only: it forbids an inferior tribunal or body from continuing proceedings in excess of jurisdiction or contrary to law or natural justice, but cannot quash a decision already made. Mandamus compels performance of a public statutory duty where the body fails or refuses to perform it, but cannot quash what has already been done nor dictate the manner of a discretionary performance. Only certiorari can quash an existing decision, issuing where the decision is made without or in excess of jurisdiction or in breach of natural justice. Since the Council had cancelled the results and that assertion was never challenged, prohibition and mandamus were inappropriate; the respondents should first have sought certiorari to quash the cancellation. The court also held that the judge erred in granting an unpleaded inquiry as to damages, applying Provincial Insurance v Nandwa. The court left open whether a candidate must be heard before cancellation of results. The appeal was allowed, the High Court orders set aside, the motion dismissed, with costs payable only by the first respondent, Geoffrey Gathenji Njoroge.

Key legal issues

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01

Scope and efficacy of an order of prohibition

Holding

Prohibition lies against an inferior tribunal or body to forbid continuation of proceedings in excess of jurisdiction or in contravention of the law or rules of natural justice, but it is prospective only and cannot quash a completed decision.

Reasoning

Drawing on Halsbury's Laws of England, the court explained that prohibition looks to the future: it can prevent a tribunal from making a contemplated decision in excess of jurisdiction or contrary to natural justice, as in the Githunguri case, but once a decision has been made, prohibition is powerless against it. The quashing of an existing decision is the province of certiorari or appeal.

p. 5
02

Scope and efficacy of an order of mandamus

Holding

Mandamus compels performance of a public duty imposed by statute where the body on whom the duty is imposed fails or refuses to perform it, but it cannot command performance in a specific way where discretion is left to the body, nor quash what has already been done.

Reasoning

Relying on Halsbury's Laws of England and illustrations from the Liquor Licensing Act and the Kenya National Examinations Council Act, the court held that mandamus enforces specific legal rights with no other convenient remedy. It can compel a licensing court to determine an application, or the Council to conduct examinations, mark papers or declare results, but it cannot dictate the content of the decision or compel release of results already cancelled.

p. 6
03

Availability of prohibition and mandamus on the facts

Holding

Both remedies were inappropriate because the Council had already cancelled the results; the respondents should have sought certiorari to quash the cancellation before seeking mandamus to compel release.

Reasoning

The respondents never challenged the Council's assertion that the results had been cancelled. Prohibition could not prevent a decision already made, and mandamus could not compel release of results that no longer existed. Granting orders for release of cancelled results would be futile and would encourage multiplicity of suits. The appeal therefore succeeded and the High Court orders were set aside.

p. 9
04

The unpleaded order for inquiry as to damages

Holding

The High Court judge erred in granting an inquiry as to damages that no party had pleaded or sought.

Reasoning

The court applied its own decision in Provincial Insurance Company of East Africa Ltd v Nandwa, holding that a judge cannot decide issues neither raised nor canvassed by the parties and not among the agreed issues. Since neither prayer sought damages and counsel for the respondents did not support that order, that part of the judgment could not stand.

p. 5
05

Whether a candidate must be heard before cancellation of results

Holding

Expressly left open for determination on another occasion, with an indication that a hearing requirement might place an unnecessarily heavy burden on the Council and destroy confidentiality of marking.

Reasoning

The court distinguished Onyango and Nyongesa, where statutory entitlements were withheld for irrelevant reasons without cancellation, from a case of actual cancellation for cheating. It noted that marking must remain confidential and that different considerations may apply to cancellation, but because of the mode of pleadings the issue was not directly raised and must await conclusive determination.

p. 8

Legal principles established

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  • Prohibition is a prospective remedy only; it cannot quash a decision already made
  • Mandamus compels performance of a public statutory duty but cannot quash or correct a duty already performed or wrongly performed
  • Only certiorari can quash a decision already made, and it issues where the decision is made without or in excess of jurisdiction or in breach of natural justice
  • A party challenging a cancellation must first seek certiorari to quash it before mandamus can compel performance
  • A court cannot grant relief that was never pleaded or sought by the parties
  • Courts ought not to make futile orders and the law prevents 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
  5. 5.Costs in the High Court and in the Court of Appeal to be paid only by the first respondent, Mr Geoffrey Gathenji Njoroge

Authorities

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Legislation

  • Kenya National Examinations Council ActSection 3(1) and 3(2)
  • Kenya National Examinations Council ActSection 10
  • Kenya National Examinations Council ActSection 14
  • Kenya National Examinations Council ActSection 10(1)(a) and 10(b)
  • Law Reform ActSection 8(1) and 8(2), Part VI
  • Civil Procedure (Revised) RulesOrder 53
  • Administration of Justice (Miscellaneous Provisions) Act, 1938 (UK)Section 7
  • Liquor Licensing ActSection 4(1) and Section 8
  • Prisons ActChapter 90
  • Kenya National Examination Council's KCPE RegulationsSection 10 paragraph 2

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 at Nairobi
High Court Misc. Civil Case No. 274 of 1995
Jurisdiction invoked
Appeal from the High Court under the Law Reform Act and Order 53 of the Civil Procedure (Revised) Rules framework; appellate jurisdiction of the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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 EXAMINATIONS COUNCIL vs REPUBLIC [1997] KECA 411 (KLR)", Case Analysis (1997). Civil Appeal No. 266 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/411/eng@1997-03-21

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