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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 651 (KLR)

Maubi v Rural Electrification and Renewable Energy Corporation (REREC) & another (Cause E672 of 2022) [2023] KEELRC 651 (KLR)

Employment and Labour Relations Court
21 February 2023
OKOcharo Kebira
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let a dismissed accountant sue directly because his employer's flawed disciplinary process made the internal appeal pointless.

What this practically means

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Executive summary

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By Notice of Motion dated October 3, 2022, a claimant summarily dismissed on September 6, 2022 from the position of Accountant (REREC 6) sought exemption from the internal appellate mechanism of the 1st Respondent and interim reinstatement pending the hearing of his suit. He contended that contrary to clause 13.5.2 of the Respondent's Human Resource Manual, which vests disciplinary authority over employees in grades REREC 6 to REREC 10 in the Chief Executive Officer with appeals lying to the Board, the Board itself conducted the disciplinary process and then purported to direct him to appeal to itself, violating natural justice and Articles 47(1) of the Constitution and sections 2 and 4(1) of the Fair Administrative Action Act. The Respondent countered that the Board holds ultimate disciplinary power under clause 13.5.1 and may delegate it, and that the claimant could appeal to the Public Service Commission. Ocharo Kebira J declined interim reinstatement, holding it was abandoned in submissions and no exceptional circumstances were demonstrated. On exhaustion, the court found that the manual fully delegates disciplinary authority over the claimant's grade to the CEO with appeal to the Board, that there is no residual Board power to hear such matters at first instance, and that the only appeal avenue is the Board, not the PSC. Since the Board handled the original process, an appeal before it would be ineffective and futile. The claimant was exempted from the exhaustion requirement under section 9(4) of the Fair Administrative Action Act, allowed to approach the court directly, the suit deemed duly filed, with costs in the cause.

Key legal issues

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01

Exemption from the doctrine of exhaustion of internal remedies under section 9(4) of the Fair Administrative Action Act

Holding

Exemption granted: the respondent's Board mishandled the disciplinary process that the manual reserved for the CEO, extinguishing the claimant's avenue of appeal, rendering pursuit of the internal appeal futile

Reasoning

Clause 13.5.2 of the Human Resource Manual fully delegates disciplinary authority over employees in grades REREC 6 to REREC 10 to the CEO, with appeals lying to the Board. The Board nonetheless conducted the disciplinary process itself, leaving the claimant to appeal to the very body that dismissed him. The only appeal avenue for employees in the claimant's grade is to the Board, not the Public Service Commission. The court held the internal appeal would be ineffective and futile, justifying exemption in the interest of justice.

p. 6
02

Interim reinstatement pending the suit

Holding

Refused

Reasoning

Interim reinstatement is granted only in exceptional circumstances and the burden lies on the employee seeking it to demonstrate such circumstances. The claimant did not address the prayer in his submissions, which the court took as abandonment, and no material was placed before the court from which exceptional circumstances could be discerned.

p. 4

Legal principles established

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  • What constitutes exceptional circumstances for exemption from the exhaustion doctrine depends on the facts of each case, and where an internal remedy would be ineffective or its pursuit futile, a court may permit direct access to it
  • Where an employer's internal mechanism has been rendered futile by the employer's own conduct, exemption under section 9(4) of the Fair Administrative Action Act may be granted

Court orders

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  1. 1.Exemption of the Claimant/Applicant from the obligation to exhaust the internal appeal remedy under the Respondent's Human Resource Manual, he being allowed to approach the court directly
  2. 2.The suit herein deemed duly filed
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Fair Administrative Action ActSections 9(2), 9(3), 9(4), 2, 4(1)
  • Constitution of KenyaArticles 47(1), 159, 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • Mui Coal Basin Local Community
    [2015] EKLR
  • Republic v Kenya School of Law & 2 others exparte Kgaborone Tsholofelo Wekesa
    [2019] eKLR
  • William Odhiambo Ramogi & 3 others Vs Attorney General & 4 others
    [2020] eKLR
  • Secretary County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
Jurisdiction invoked
Section 9(4) of the Fair Administrative Action Act; Articles 47(1), 159(2)(d) and 48 of the Constitution

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, "Maubi v Rural Electrification and Renewable Energy Corporation (REREC) & another (Cause E672 of 2022) [2023] KEELRC 651 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/651/eng@2023-02-21

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