Naomi Connie Lusiche v Barclays Bank of Kenya Limited [2018] KEELRC 1145 (KLR)
The bottom line
#A Kenyan court confirmed the Fair Administrative Action Act applies to private employment, but employees must exhaust internal appeals before going to court.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the FAA Act to private employment contracts
The FAA Act applies to private contracts including employment contracts because the Bill of Rights binds all persons
The FAA Act gives effect to article 47 of the Constitution, which sits in the Bill of Rights. Article 20(1) provides that the Bill of Rights binds all state organs and all persons, and article 41 on fair labour practices is a component of the Bill of Rights. Section 2 of the FAA Act defines administrative action to include any act, omission or decision of any person or body affecting legal rights or interests. Fairness of termination procedure under sections 41-47 of the Employment Act reinforces this conclusion.
Whether the court may waive the internal appeal requirement
The court cannot waive the exhaustion requirement under section 9 of the FAA Act
Section 9(2) is couched in mandatory terms and leaves no room for judicial discretion, so an order waiving the internal appeal process is incapable of being granted. Instead the court stayed the petition to allow the petitioner to pursue the internal appeal against her dismissal within 60 days.
Interest rate on the staff housing loan pending trial
The loan interest remains at staff rates pending determination of the petition, following Boniface Lum Amunga Biko v NBK
The court was persuaded by the decision of Mbaru J in Boniface Lum Amunga Biko v NBK [2017] and held that converting the loan from staff rate to customer rate pending the petition would be premature; the staff rate therefore applies pending hearing and determination of the petition.
Interlocutory reinstatement pending the petition
Reinstatement is not granted at the interlocutory stage absent exceptional and compelling circumstances
Concurring with counsel for the respondent, the court held that reinstatement is an order to be made in a proper case after full trial on the merits, and only at the interlocutory stage where exceptional and compelling circumstances exist or where a termination defies a court order.
Legal principles established
#- The Fair Administrative Action Act applies to private contracts including contracts of employment
- Under section 9(2) of the FAA Act internal appeal and review mechanisms must be exhausted before judicial review, and the provision is mandatory
- Interlocutory reinstatement is available only in exceptional and compelling circumstances
Court orders
#- 1.The prayer for waiver of the internal appeal requirement under section 9(4) of the FAA Act is refused; the order is incapable of being granted
- 2.The petition stands stayed pending the filing, hearing and determination of an appeal against the petitioner's dismissal, to be done within 60 days of the order
- 3.The interest rate on the staff housing loan remains at staff rates pending the hearing and determination of the Petition
- 4.Mention on the 15th day of November, 2018 for further directions on hearing and disposal
- Jurisdiction invoked
- Article 47 of the Constitution and the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Connie Lusiche v Barclays Bank of Kenya Limited [2018] KEELRC 1145 (KLR)", Case Analysis (2018). Petition No 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1145/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.