Republic v Odege (Secretary General, Union of Kenya Civil Servants) & 3 others; Odhiambo (Exparte) (Judicial Review E013 of 2023) [2023] KEELRC 2066 (KLR)
The bottom line
#Kenya's Employment Court ruled a union cannot block a court challenge by insisting its members first use internal dispute processes that may be biased.
What this practically means
#Executive summary
#Key legal issues
#Whether the exhaustion doctrine barred the judicial review application
The preliminary objection was dismissed; the applicant was excused from exhausting internal mechanisms because the internal fora were alleged to be biased and the respondents did not prove he would receive an impartial and fair hearing.
The court applied section 90 of the Fair Administrative Action Act and the Omtatah and Kabiru authorities recognising exceptions to exhaustion in exceptional circumstances. The applicant's claim of bias permeating the respondent's administrative and disciplinary bodies was not challenged by the respondents, who failed to prove that an impartial and fair hearing would be obtained internally. Further, the objection was not a pure point of law since the court would have to assess the sufficiency of the internal mechanisms.
Whether the preliminary objection satisfied the Mukisa Biscuit test
It did not, because it did not raise a pure point of law and would require the court to adjudicate on facts and the adequacy of the internal mechanisms.
Relying on the Mukisa Biscuit principle, the court held that a preliminary objection must rest on the assumption that pleaded facts are correct and cannot be raised where facts must be ascertained or where judicial discretion is engaged. Determining whether the union's constitution provided a sufficient internal mechanism would require such adjudication, so the objection was defective and could not sustain a finding of want of jurisdiction.
Legal principles established
#- The existence of an internal or ADR dispute resolution mechanism does not completely oust the court's jurisdiction in special circumstances
- A preliminary objection that requires the court to ascertain facts or adjudicate on the sufficiency of internal mechanisms is not a pure point of law
- Where allegations of bias against internal disciplinary organs are unchallenged and unrefuted, the court may permit the matter to proceed
Court orders
#- 1.The preliminary objection is dismissed as not merited
- 2.The application dated March 27, 2023 is to proceed to hearing
- 3.Each party will meet its costs
- Jurisdiction invoked
- Original judicial review jurisdiction under section 90 of the Fair Administrative Action Act and article 22(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Odege (Secretary General, Union of Kenya Civil Servants) & 3 others; Odhiambo (Exparte) (Judicial Review E013 of 2023) [2023] KEELRC 2066 (KLR)", Case Analysis (2023). Chamber Summons dated March 27, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2066/eng@2023-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.