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Court of AppealDismissedNot stated in the judgment

Adundo v Chair-Kisumu County Assembly Service Board & 5 others (Civil Appeal 258 of 2019) [2025] KECA 239 (KLR)

Court of Appeal
13 February 2025
6,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld the dismissal of Kisumu's Assembly Clerk because he ignored repeated invitations to defend himself at disciplinary hearings.

What this practically means

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Executive summary

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The appellant, formerly Clerk to the County Assembly of Kisumu, appealed to the Court of Appeal at Kisumu against the dismissal by the Employment and Labour Relations Court of his claim challenging his suspension and summary dismissal by the Kisumu County Assembly Services Board. The Board dismissed him on 14th July 2017 for gross misconduct and financial mismanagement after he failed to attend disciplinary proceedings to which he had been summoned. The respondents argued on appeal that the ELRC lacked jurisdiction because the appellant had not exhausted the appellate process to the Public Service Commission under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act. The Court held that although jurisdictional questions may generally be raised at any time, an objection pegged on the doctrine of exhaustion must be raised at trial, since its exceptions, waiver or forfeiture rest on factual findings; no such objection had been raised in the pleadings or submissions before the trial Judge. On the merits, the Court found the Board had the mandate to discipline and remove the Clerk, that the allegations fell within Section 22 of the County Assembly Services Act and Section 44(4) of the Employment Act, and that the appellant was duly served and summoned but deliberately declined to attend, thereby waiving his rights to a fair hearing and fair administrative action under Articles 47 and 50 of the Constitution. Allegations of forgery of the Board minutes failed for want of pleading and proof to the higher standard required. The claim for salary and allowances during suspension also failed for want of evidence, any consent or order being a matter for execution. The Court affirmed the judgment of the ELRC and dismissed the appeal with costs.

Questions the Court framed

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

  1. 1.Whether this Court and the ELRC had jurisdiction, given the exhaustion of the appellate process under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act
  2. 2.Whether the appellant's termination was lawful
  3. 3.Whether the termination was procedurally fair
  4. 4.Whether the appellant was entitled to payment of salaries and allowances for the duration of his suspension

Key legal issues

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01

Jurisdiction - exhaustion of statutory remedies raised for the first time on appeal

Holding

The objection fails because it was not raised in the trial court; exhaustion-based jurisdictional bars rest on factual questions of waiver or exception and must be raised at trial.

Reasoning

Though jurisdiction may generally be raised at any time, the exhaustion doctrine precludes a court only by requiring prior resort to statutory remedies, and its exceptions, waiver or forfeiture are factual questions. A party cannot spring it on appeal where the adversary cannot present factual material to show non-applicability. No jurisdictional objection appeared in the respondents' pleadings or trial submissions.

p. 6
02

Whether the dismissal was substantively justified

Holding

Yes - the allegations of gross misconduct and financial mismanagement fell within Section 22 of the County Assembly Services Act and Section 44(4) of the Employment Act.

Reasoning

The comprehensive dismissal letter detailed misconduct and financial impropriety, including unremitted statutory deductions and irregular expenditure, squarely within the statutory grounds for removal of a Clerk. The Board therefore had every reason to believe the allegations had substance, satisfying Section 43 and Section 45 of the Employment Act.

p. 12
03

Whether the dismissal was procedurally fair

Holding

Yes - the appellant was served with the suspension letter, notices to appear before the Board, and rescheduling letters, but deliberately chose not to attend.

Reasoning

The appellant admitted receiving the notice of 5th June 2017 and the rescheduling letter of 7th June 2017; his advocate also received correspondence about the disciplinary process. His own affidavit showed he was summoned but no meeting took place on the first date. Having failed or refused to attend both before suspension and before dismissal, he waived his right to a fair hearing and fair administrative action under Articles 47 and 50.

p. 12
04

Whether the appellant was entitled to salary and allowances during suspension

Holding

No - no evidence of entitlement was adduced; any consent or court order on half salary should have been pursued by execution, not in this judgment.

Reasoning

The appellant relied on a recorded consent of 1st November 2017 for half salary and full allowances, but adduced no evidence of unpaid salaries or allowances. If a court order existed, the remedy was execution, which cannot be addressed in the appeal. His claim in that regard was properly dismissed by the trial court.

p. 12

Legal principles established

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  • A jurisdictional objection pegged on the doctrine of exhaustion must be raised at the first instance in the trial court; it cannot be raised for the first time on appeal where the adversary cannot adduce factual material on waiver or exception.
  • Allegations of forgery must be specifically pleaded and proved to a standard higher than the ordinary civil standard.
  • An employee who, having been duly summoned, neglects or refuses to attend disciplinary proceedings cannot later complain of denial of a fair hearing.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Kisumu
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(1)(a)); from the Employment and Labour Relations Court

Relief refused

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Payment of withheld salary, emoluments and allowances for the suspension period

The appellant did not adduce evidence of entitlement; any court order on the consent should have been pursued by execution

p. 12

Declaration that the appellant is still an employee / reinstatement

Summary dismissal was lawful and procedurally fair with substantive justification

p. 12

Costs

The appeal was dismissed with costs to the respondents - 'It is dismissed with 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.

This is the reason the doctrine of exhaustion as a jurisdictional bar must be raised in the first instance at the trial court. A party cannot wait and raise it on appeal where the adversary cannot present factual material to demonstrate the nonapplicability of the doctrine to the particular controversy before the court.
p. 6Exhaustion doctrine - cannot be raised for the first time on appeal
allegations of forgery are of the same species as fraud: they must not only be alleged with specificities and particulars; but they must be proved at a slightly higher standard that the run-ofi-the-mill civil claim.
p. 12Standard of proof for forgery allegations
Having neglected, failed or refused to attend the disciplinary proceedings, first, before the suspension and secondly, before the decision leading to his dismissal, the appellant has only himself to blame.
p. 9Waiver of fair hearing rights by non-attendance
Accordingly, this appeal has no merit. It is dismissed with costs.
p. 12Disposition - final orders

Issues in the judgment

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minor

The letter of suspension is dated and refers to a Board meeting of 1st December 2016, yet the judgment elsewhere records the suspension as effected by a letter dated 1st December 2016 while the appeal memorandum refers to termination on 2nd February 2017 and dismissal on 14th July 2017; the chronology of suspension vs dismissal dates is inconsistent within the judgment.

minor

The Board minutes are said to be of a meeting on 14th June 2017, but the judgment records the appellant as failing to appear on 13th June, 2013 - an apparent typographical error in the year.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Adundo v Chair-Kisumu County Assembly Service Board & 5 others (Civil Appeal 258 of 2019) [2025] KECA 239 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/239/eng@2025-02-13

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