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ELRCStruck OutNot stated in the judgment· [2021] KEELRC 1145 (KLR)

Katiba Institute & another v Attorney General & 2 others; Muthaura Doreen Nkatha & 9 others (Interested Parties) [2021] KEELRC 1145 (KLR)

Employment and Labour Relations Court
28 July 2021
NMNzioki wa Makau
3,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a challenge to IPOA Board appointments because the petitioners skipped the statute's required complaint process.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by Nzioki wa Makau J, delivered at Nairobi on 28 July 2021, disposed of a Petition challenging the recruitment, vetting and appointment of the Chairperson and members of the IPOA Board. The 1st Interested Party, Muthaura Doreen Nkatha, raised a preliminary objection contending that the Court lacked jurisdiction under Section 14 of the IPOA Act and that the claim was statute-barred under Section 9(3) of the Law Reform Act. The 2nd Respondent, IPOA, filed grounds of opposition arguing that the Petitioners had not exhausted the remedies under Section 9(2) of the Fair Administrative Actions Act and Section 14 of the IPOA Act, that the Petition was filed with inordinate delay, and that the reliefs sought would prejudice the Interested Parties' rights under Article 41. The 7th Interested Party supported the objection, arguing that the Court's jurisdiction under Article 162(2) and Section 12 of the ELRC Act was limited and did not capture the dispute. The Petitioners countered that the Court's constitutional jurisdiction was not ousted by statute, relying on authorities including the FIDA-K case, and that no limitation period applied to constitutional petitions. Applying the Mukisa Biscuit definition of a preliminary objection, the court held the objection was a proper point of law. It found that Section 14 of the IPOA Act prescribed a removal mechanism - a petition to the Public Service Commission, then the National Assembly, the President and a tribunal - which the Petitioners had bypassed. Holding that the exhaustion doctrine does not permit a party to leapfrog statutory dispute-resolution mechanisms, the court struck out the Petition with costs to the 2nd Respondent and the 1st Interested Party.

Key legal issues

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01

Whether the preliminary objection was a proper point of law

Holding

The objection was a point of law founded on the pleadings and the statute, satisfying the Mukisa Biscuit test

Reasoning

Applying the classic definition in Mukisa Biscuit Co v West End Distributors, the court held the objection rested on Section 14 of the IPOA Act and the exhaustion doctrine, both pure questions of law capable of disposing of the suit without entering the factual merits.

p. 4
02

Whether the Petitioners were obliged to exhaust the Section 14 IPOA Act removal mechanism

Holding

Yes; failure to exhaust rendered the Petition incompetent

Reasoning

Section 14 of the IPOA Act prescribes removal of a Board member via a petition to the Public Service Commission, then the National Assembly, the President and a tribunal. The complaint - that the Interested Parties were appointed to posts they did not apply for - fell within this mechanism, which the Petitioners bypassed, contrary to the exhaustion doctrine.

p. 4
03

Effect of delay in instituting the Petition

Holding

The Petition was filed after a considerable period in contravention of the law, supporting its incompetence

Reasoning

The 2nd Respondent argued a delay of over one year violated Section 9(1) of the Fair Administrative Actions Act requiring prompt institution. The court noted the Petition was filed after a considerable period of time, treating the delay as part of the failure to follow the prescribed procedure.

p. 4

Legal principles established

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  • Where a statute provides a mechanism for handling a complaint, that mechanism must be triggered before a party may properly approach the Court

Court orders

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  1. 1.The Petition is struck out with costs to the 2nd Respondent and the 1st Interested Party
Jurisdiction invoked
Articles 22, 258 and 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Rule 7(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Katiba Institute & another v Attorney General & 2 others; Muthaura Doreen Nkatha & 9 others (Interested Parties) [2021] KEELRC 1145 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1145/eng@2021-07-28

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