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ELRCPartially Allowed· [2018] KEELRC 57 (KLR)

Republic v Principal Murang’a High School & 2 others Ex parte Elizabeth W Maguta [2018] KEELRC 57 (KLR)

High Court of Kenya
29 November 2018
NMNzioki wa Makau
1,430 words in judgment
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The bottom line

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A Kenyan teacher facing TSC interdiction lost her case in the High Court because she first had to finish the commission's own disciplinary process.

What this practically means

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Executive summary

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The 1st and 2nd Respondents raised a preliminary objection dated 25th October 2018 against a judicial review application brought by an ex parte Applicant, a teacher facing interdiction before the Teachers Service Commission (3rd Respondent). The objection contended that the application violated Section 9(2) of the Fair Administrative Action Act and the doctrine of exhaustion, as the Applicant had already subjected herself to the TSC disciplinary process by entering a defence, with the hearing pending. Counsel for the Respondents relied on Court of Appeal authority, notably Mutanga Tea & Coffee Company Ltd v Shikara Limited, for the proposition that where a statute prescribes a specific dispute resolution mechanism, it must be strictly followed before invoking the High Court's jurisdiction. Counsel for the 3rd Respondent added that there was no scope for a public law remedy for a private law infringement and urged reluctance to interfere with managerial prerogatives. Counsel for the ex parte Applicant argued that exceptional circumstances existed - the complainant had turned investigator and judge, denying the Applicant representation by a union official and a fair hearing under Article 47 of the Constitution - and relied on Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School. In a brief rejoinder, the Respondents maintained the Applicant had chosen the wrong forum. The court held that Section 9(2) is the classic rendition of the exhaustion doctrine and that the Applicant should have exhausted the statutory disciplinary remedies before seeking judicial review. The court allowed the preliminary objection, struck out the judicial review application, and made no order as to costs. Judgment was dated and delivered at Nairobi on 29th November 2018 by Nzioki wa Makau J.

Key legal issues

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01

Doctrine of exhaustion and Section 9(2) of the Fair Administrative Action Act

Holding

The High Court shall not review an administrative action unless internal mechanisms for appeal or review and all remedies under any other written law are first exhausted

Reasoning

The court held that Section 9(2) is the classic rendition of the doctrine of exhaustion. The ex parte Applicant, a teacher facing interdiction before the TSC, had a disciplinary process underway which was the statutory remedy available. Having entered a defence in the disciplinary proceedings, she was obliged to pursue that remedy to its conclusion before moving the court for judicial review. Exceptional circumstances justifying intervention were not demonstrated.

p. 2

Legal principles established

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  • Where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, an aggrieved party must resort to that mechanism before invoking the inherent jurisdiction of the High Court

Court orders

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  1. 1.The preliminary objection dated 25th October 2018 is allowed
  2. 2.The Judicial Review application is struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Fair Administrative Action Act, No. 4 of 2015Section 9(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of KenyaArticle 165(3)(a)

Cases cited (7)

  • Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another
    [2015] eKLR
  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others
    [2015] eKLR
  • Judith Mbaya Tsisiga v Teachers Service Commission
    [2015] eKLR (printed as [201] in judgment)
  • Alfred Nyungu Kimungui v Bomas of Kenya Ltd
    [2013] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Speaker of the National Assembly v Karume
  • Kones v Republic & Another ex parte Kimani wa Nyoike & 4 Others
    (2008) 3 KLR (ER) 296
Jurisdiction invoked
Judicial review jurisdiction of the High Court; Fair Administrative Action Act, No. 4 of 2015, Section 9(2)

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, "Republic v Principal Murang’a High School & 2 others Ex parte Elizabeth W Maguta [2018] KEELRC 57 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/57/eng@2018-11-29

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