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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1141 (KLR)

Muema v Independent Electoral & Boundaries Commission (Petition E013 of 2023) [2023] KEELRC 1141 (KLR)

Employment and Labour Relations Court
11 May 2023
JGJACOB GAKERI
2,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent employer filed a preliminary objection dated January 31, 2023 against a petition by a former employee dismissed on January 19, 2023, seeking payment of salary and reinstatement. The respondent argued that the court lacked jurisdiction because the petitioner had not exhausted internal dispute resolution mechanisms under sections 12.14 and 12.15 of its Human Resource Manual, his appeal filed on January 23, 2023 being unheard, and that the petition offended section 9(2) of the Fair Administrative Action Act. The petitioner countered that the objection failed the Mukisa Biscuit threshold and that section 9(4) of the FAA Act permitted exemption in exceptional circumstances, since the respondent's commissioners' terms had lapsed in January 2023 leaving no appellate body, and the Manual had no timelines for determining appeals. The court, per Gakeri J, first found the objection competent, holding that a jurisdictional objection is a pure point of law. On exhaustion, the court accepted that internal mechanisms must ordinarily be exhausted but applied the section 9(4) exceptions as expounded in William Odhiambo Ramogi. The absence of commissioners to hear the appeal, the absence of timelines in the Manual, and the delay of over three months amounted to exceptional circumstances exempting the petitioner from exhausting the appellate process. The court reasoned that a contrary holding would deny the petitioner an audience and violate Article 47(1) on fair administrative action. The preliminary objection was dismissed 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 court found the preliminary objection competent because an objection to jurisdiction is a pure point of law.

Reasoning

Applying Mukisa Biscuit, the court held that a jurisdictional objection consists of a point of law pleaded or arising from pleadings. The question whether a court has jurisdiction is one of law, and such an objection qualifies even though it engages the exhaustion doctrine. The court thus distinguished between the competence of the objection and its merits, finding the former satisfied before moving to the exhaustion question.

p. 4
02

Whether the petitioner was required to exhaust the internal dispute resolution mechanisms under the Human Resource Manual

Holding

The petitioner was exempted from the exhaustion requirement under section 9(4) of the Fair Administrative Action Act on account of exceptional circumstances.

Reasoning

Although agreeing that internal mechanisms must ordinarily be exhausted before courts are approached, the court applied the exceptions in section 9(4) as expounded in William Odhiambo Ramogi. The respondent's appeal filed on January 23, 2023 had not been heard more than three months later, the Human Resource Manual contained no timelines, and the respondent had no commissioners since January 2023 to constitute the appellate body. Denying the petitioner access to court would leave him without any audience 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.
  • The absence of an appellate authority to hear an internal appeal amounts to exceptional circumstances exempting a party from the exhaustion requirement under section 9(4) of the Fair Administrative Action Act.

Court orders

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  1. 1.The respondent's preliminary objection dated January 31, 2023 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 Act, 2015Section 9(2)
  • Fair Administrative Action Act, 2015Section 9(4)
  • Fair Administrative Action Act, 2015Section 4(1)
  • Employment and Labour Relations Court Act, 2011Section 3(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

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 (Employment and Labour Relations Court jurisdiction)

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, "Muema v Independent Electoral & Boundaries Commission (Petition E013 of 2023) [2023] KEELRC 1141 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1141/eng@2023-05-11

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