Duncan Gitungo Kithinji v CIC General Insurance Limited [2020] KEELRC 623 (KLR)
The bottom line
#An employer that fails to tell a dismissed employee how to appeal cannot later demand they exhaust internal appeal mechanisms before suing.
What this practically means
#Executive summary
#Key legal issues
#Whether the doctrine of exhaustion of internal remedies barred the Claim
No; the employer's own defaults (no appeal information in the termination letter and no response to the employee's letter of dissatisfaction) excused non-exhaustion
The Court found the employee wrote on 7/12/2018 expressing dissatisfaction with the disciplinary process and outcome, and the employer never denied receipt. The termination letter omitted the right and manner of appeal, contrary to section 1(d)(iii) of the Fair Administrative Action Act 2015 which requires the administrator to specify the manner and period within which an appeal shall be lodged. Having failed to perform its own obligation, the employer could not fault the employee for bypassing the internal appeal.
Whether the suit should be summarily dismissed under Order 2 Rule 15
The application to strike out lacks merit and is dismissed
The Respondent submitted, without contradiction from the Applicant, that striking out is a drastic remedy exercised only where a suit is hopeless and plainly discloses no reasonable cause of action, per DT Dobie v Muchina. The Court found the claim disclosed a cause of action and that the exhaustion objection failed on the facts, so the striking-out motion was dismissed with costs in the cause.
Legal principles established
#- An employer who omits to notify an employee of the manner and period within which an appeal shall be lodged, and who fails to respond to the employee's expression of dissatisfaction, cannot insist on exhaustion of internal appeal mechanisms before suit
- Where a party makes internal dispute resolution impossible, the Court will not allow that party to plead non-exhaustion against the other
Court orders
#- 1.The Applicant's Notice of Motion dated 14/11/2019 seeking to strike out the Claim is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute; Article 50 and Article 41 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Gitungo Kithinji v CIC General Insurance Limited [2020] KEELRC 623 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/623/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.