Achar v County Assembly of Kisumu & another (Civil Appeal 56 of 2020) [2025] KECA 1781 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an official's impeachment challenge, ruling he must first use internal remedies and attend hearings before rushing to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ELRC erred by focusing on conservatory orders instead of determining the substantive petition
- 2.Whether the appellant's rights to a fair hearing and fair administrative action were violated
- 3.Whether the appellant prematurely approached the court before exhausting the 1st respondent's internal dispute resolution mechanisms
Key legal issues
#Whether the ELRC erred by determining the petition on the basis of its earlier conservatory orders ruling rather than the merits
No error: the ELRC did address the substantive grievances, and the earlier interlocutory treatment did not bar it from revisiting the issues in the final judgment
The court held that although the ELRC had addressed some issues at the interlocutory stage, that could not bar it from revisiting them in the final judgment. The record showed no pending conservatory orders application at the hearing of the petition, so the appellant's complaint was fallacious. The judgment showed the trial court examined the allegations before concluding there was no sufficient basis for judicial intervention, correctly applying judicial restraint and procedural propriety.
Whether the appellant's rights to a fair hearing under Article 50(1) and fair administrative action under Article 47(1) were violated
No violation: the appellant was afforded an opportunity to participate in the impeachment proceedings but failed to take it
The court found the appellant was formally invited to appear before the Select Committee with the allegations against him but neither attended nor sent legal representation. He could have appeared personally or through counsel to request additional time or access to documents before rushing to court. Given the strict statutory timelines, non-observance would have nullified the proceedings, and non-cooperation was contrary to public interest.
Whether the appellant prematurely approached the court before exhausting the County Assembly's internal dispute resolution mechanisms
Yes: the doctrine of exhaustion of administrative remedies applies, and the appellant's assumption of an adverse outcome was speculative
The court surveyed comparative and domestic authority on exhaustion of remedies and separation of powers, holding that legislative processes should be allowed to conclude before judicial intervention absent a demonstrable constitutional violation. Any violation that might have occurred would still have been reversible by the certiorari the appellant had already sought in his petition, so premature intervention was unnecessary.
Legal principles established
#- The right to a fair hearing does not extend to a party who deliberately fails to take advantage of the opportunity accorded to be heard
- Judicial intervention in ongoing legislative impeachment processes is unwarranted unless there is a clear or demonstrable constitutional violation, and a party must first exhaust internal remedies
- As a first appellate court, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal was dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Relief refused
#Setting aside the ELRC judgment and grant of reliefs sought in the memorandum of appeal, including damages in the form of salaries for the remainder of the contract period
The appeal was devoid of merit; the appellant failed to substantiate constitutional violations and had prematurely approached the court
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view, the right to a fair hearing does not extend to a party who deliberately fails to take advantage of the opportunity accorded.
judicial intervention should only occur after the legislative process has run its course, unless there was a demonstrable constitutional violation which in this case was lacking
The process would still have been reversed by an order of Certiorari which he had in any event sought in his petition.
Consequently, the appeal is devoid of merit and is accordingly dismissed with no order as to costs.
Issues in the judgment
#The respondents were not represented at the hearing and filed no submissions despite confirmed service; the record does not state their full names or the exact case number of the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achar v County Assembly of Kisumu & another (Civil Appeal 56 of 2020) [2025] KECA 1781 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1781/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.