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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1044 (KLR)

Kioko v Independent Electoral & Boundaries Commission (Petition E014 of 2023) [2023] KEELRC 1044 (KLR)

Employment and Labour Relations Court
26 April 2023
JGJACOB GAKERI
2,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed a dismissed employee to skip a stalled internal appeal because his former employer had no functioning appeal process.

What this practically means

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Executive summary

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The Respondent raised a Preliminary Objection dated January 30, 2023 against the Petitioner's Petition, urging that the court lacked jurisdiction because the Petitioner, a former employee dismissed on January 20, 2023, had not exhausted the internal dispute resolution mechanisms in the Respondent's Human Resource Manual, his appeal to the Respondent's Commissioners being pending, contrary to Section 9(2) of the Fair Administrative Action Act. The Respondent relied on Geoffrey Muthinja and William Odhiambo Ramogi. The Petitioner countered that the objection failed the Mukisa Biscuit threshold and that exceptional circumstances existed under Section 9(4): the Respondent had no Commissioners since the term lapsed in January 2023, the Manual had no timelines for determining appeals, and the appeal had not been heard over three months after filing. The court framed two issues: competence of the Preliminary Objection and violation of the exhaustion principle. It held the objection was competent, since an objection to jurisdiction is a pure point of law. On exhaustion, it accepted that internal mechanisms should ordinarily be exhausted first, but found the absence of Commissioners and of any timelines constituted exceptional circumstances under Section 9(4); compelling exhaustion would deny the Petitioner an audience and violate Article 47(1). The court exempted the Petitioner from exhausting the appellate process and dismissed the Preliminary Objection, with costs in the cause.

Key legal issues

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01

Whether the Preliminary Objection was competent as a pure point of law

Holding

The objection to jurisdiction on grounds of exhaustion is a pure point of law and therefore a competent Preliminary Objection.

Reasoning

Applying Mukisa Biscuit and Owners of the Motor Vessel 'Lillian S', the court held that an objection to jurisdiction qualifies as a Preliminary Objection since it raises a pure point of law that does not require ascertainment of facts.

p. 4
02

Whether the petition violated the doctrine of exhaustion under Section 9(2) of the Fair Administrative Action Act

Holding

The Petitioner was exempted from exhausting the internal appellate process under Section 9(4) because the Respondent had no Commissioners to hear the appeal and no timelines were provided.

Reasoning

Although internal dispute resolution mechanisms should ordinarily be exhausted first, Section 9(4) permits exemption in exceptional circumstances. The Respondent had no Commissioners since January 2023, gave no timelines for appointment or hearing, and the Human Resource Manual had no timelines for appeals. Forcing exhaustion would indefinitely keep the Petitioner on tenterhooks and violate Article 47(1).

p. 5

Legal principles established

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  • Section 9 of the Fair Administrative Action Act does not oust the jurisdiction of the court in totality; a court may, in exceptional circumstances under section 9(4), exempt a party from the obligation to exhaust internal remedies.
  • Where the appellate forum is non-existent and no timelines for hearing the appeal are provided, the party is exempted from exhausting the appellate process in the interest of justice.

Court orders

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  1. 1.The Respondent's Preliminary Objection is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Fair Administrative Action ActSection 9(2)
  • Fair Administrative Action ActSection 9(4)
  • Fair Administrative Action ActSection 4(1)
  • Employment and Labour Relations Court ActSection 3(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Human Resources, Administration Policies and Procedures ManualSections 8.15, 12.14, 12.15

Cases cited (7)

  • Geoffrey Muthinja & another V Samuel Muguna Henry & 1756 others
    (2015) eKLR
  • William Odhiambo Ramogi & 3 others V Attorney General & 4 others; Muslims for Human Rights and 2 others (Interested Parties)
    (2020) eKLR
  • Mukisa Biscuit Manufacturing Co Ltd V West End Distributors Ltd
    (1969) EA 696
  • Boniface Akusala & another V Law Society of Kenya & 12 others
  • Republic V Independent Electoral and Boundaries Commission (IEBC) Ex parte National Super Alliance (NASA) Kenya & 6 others
    (2017) eKLR
  • Robert Khamala Situma & 8 others V The Acting Clerk of the Nairobi City County Assembly
    (2022) eKLR
  • Owners of the Motor Vessel “Lillian S” V Caltex Oil (K) Ltd
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010

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, "Kioko v Independent Electoral & Boundaries Commission (Petition E014 of 2023) [2023] KEELRC 1044 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1044/eng@2023-04-26

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