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Court of AppealDismissedCivil Appeal (Kisumu)· [2023] KECA 1540 (KLR)

James Omariba Nyaoga v Chairman Kisii County Assembly & 3 others

Court of Appeal of Kenya
8 December 2023
4,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that Kenyan employees must exhaust internal appeal procedures, like PSC appeals, before rushing to court.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu from the Employment and Labour Relations Court (Radido, J.), which had dismissed the appellant's petition challenging his suspension as Clerk of the Kisii County Assembly on the ground that he had not first exhausted the alternative remedies of appeal to the Public Service Commission or review before the County Assembly Service Review Board. The appellant argued that the Kisii County Assembly Human Resource Manual, an internal policy document, could not confer or direct jurisdiction, that ouster clauses must be construed strictly, and that the procedural irregularities in his suspension entitled him to bypass the exhaustion doctrine. The Court, per a single unanimous judgment of Okwengu, Omondi and Ngugi, JJ.A, rejected these arguments. Relying on Speaker of the National Assembly v Karume, Mutanga Tea, Muthinja, Ramogi and Fleur Investments, it held that the elaborate removal and appeal procedures in clauses D35 to D37 of the Manual, read with section 77 of the County Governments Act, clothed the PSC with appellate jurisdiction over disciplinary decisions of the County Assembly Service Board, and that the Manual has the backing and force of law. An internal remedy does not oust the court's jurisdiction but postpones it. The appellant led no evidence of exceptional circumstances rendering the internal remedy ineffective, unavailable or inadequate, and the charges had since been reviewed with the appellant invited to respond. The appeal was dismissed and costs awarded to the respondents.

Key legal issues

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01

Exhaustion of alternative remedies

Holding

The appellant was required to appeal to the Public Service Commission under the Human Resource Manual and applicable statutory scheme before invoking the ELRC's jurisdiction

Reasoning

The Court traced the doctrine through Speaker of the National Assembly v Karume, Mutanga Tea, Muthinja and Ramogi, holding that an aggrieved party must first pursue available administrative remedies. The elaborate removal and appeal procedures in clauses D35–D37 of the Kisii County Assembly Human Resource Manual, backed by section 77 of the County Governments Act, clothed the PSC with appellate jurisdiction. The appellant led no evidence of exceptional circumstances justifying direct court access.

p. 7
02

Whether a Human Resource Manual, an internal policy instrument, could direct or postpone the court's jurisdiction

Holding

The Manual has the backing and force of law and does not oust the ELRC's jurisdiction; it merely postpones it pending exhaustion of internal remedies

Reasoning

The appellant argued that an internal policy document could not confer or direct jurisdiction since only Parliament may make law. The Court disagreed, reading Article 253(1)(c) of the Constitution alongside section 77 of the County Governments Act, and noting that the Employment Act recognises a Human Resource Manual as a proper instrument in disciplinary matters. The Court endorsed the view that the Manual postpones rather than removes jurisdiction.

p. 8
03

Exceptions to the exhaustion doctrine

Holding

The appellant failed to establish exceptional circumstances, such as illegality or procedural irregularity rendering the remedy ineffective, that would exempt him from exhaustion

Reasoning

The Court acknowledged that courts retain residual jurisdiction in exceptional circumstances, citing Mandila Khaemba, Fleur Investments and section 9(4) of the Fair Administrative Action Act. However, the appellant led no evidence that the internal remedy was ineffective, unavailable or inadequate. Further, the 3rd respondent had reviewed the charges in compliance with the trial court's order and invited the appellant to respond, so remedies remained live and unexhausted.

p. 8
04

Duty of a first appellate court

Holding

The trial Judge made no error in the application of the law or legal principles; the appeal was properly dismissed

Reasoning

As a first appeal, the Court was bound to re-evaluate the evidence and law under Rule 31(1)(a) of the Court of Appeal Rules, citing Abok James Odera v John Patrick Machira. Having done so, it found no error in the trial Judge's conclusion that the petition was premature because the appellant had not first appealed to the PSC or sought review before the County Assembly Service Review Board.

p. 8

Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, it must be strictly followed before resorting to court
  • An internal remedy such as a Human Resource Manual does not oust the court's jurisdiction but postpones it until alternative avenues are explored
  • A litigant seeking to bypass an internal remedy must show it would be ineffective, unavailable or inadequate; absent exceptional circumstances, exhaustion is required

Court orders

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  1. 1.Appeal dismissed; judgment of the trial court upheld
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
Employment and Labour Relations Court of Kenya at Kisumu
ELRC Petition No. E036 of 2022
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(1)(a) invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "James Omariba Nyaoga v Chairman Kisii County Assembly & 3 others", Case Analysis (2023). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1540/eng@2023-12-08

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