Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedChamber Summons dated March 27, 2023· [2023] KEELRC 2066 (KLR)

Republic v Odege (Secretary General, Union of Kenya Civil Servants) & 3 others; Odhiambo (Exparte) (Judicial Review E013 of 2023) [2023] KEELRC 2066 (KLR)

Employment and Labour Relations Court
18 August 2023
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The ex parte applicant, the 1st Deputy Secretary General of a trade union, sought leave to apply for judicial review orders of certiorari to quash a notice to show cause, the proceedings of a disciplinary hearing of March 8, 2023, a follow-up internal memorandum and the decision suspending him from office by letter of March 14, 2023; prohibition restraining further action curtail ing his role; and mandamus compelling reinstatement. The 1st and 4th respondents raised a preliminary objection contending that the Employment and Labour Relations Court lacked jurisdiction because the applicant had not exhausted the union's internal dispute resolution mechanisms under its constitution, which provide for appeals to the National Executive Board, the Advisory Council and the delegates conference. The applicant argued the objection was not a pure point of law under the Mukisa Biscuit test and that bias permeated the union's administrative and disciplinary bodies, rendering the internal mechanisms unviable. The court cited section 90 of the Fair Administrative Action Act and the exhaustion jurisprudence in Omtatah, Miano and Kabiru, which recognise exceptional circumstances excusing exhaustion. It found that the respondents had not challenged or disproved the applicant's allegations of bias and thus had not proved he would receive an impartial and fair hearing internally, and that the objection did not raise a pure point of law since the court would have to assess the sufficiency of the internal mechanisms. The preliminary objection was dismissed, the application ordered to proceed to hearing, and each party ordered to meet its own costs. The substantive judicial review application remains pending.

Key legal issues

#
01

Whether the exhaustion doctrine barred the judicial review application

Holding

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.

Reasoning

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.

p. 5
02

Whether the preliminary objection satisfied the Mukisa Biscuit test

Holding

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.

Reasoning

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.

p. 5

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. 1.The preliminary objection is dismissed as not merited
  2. 2.The application dated March 27, 2023 is to proceed to hearing
  3. 3.Each party will meet its costs

Authorities

#

Legislation

  • Fair Administrative Action ActSection 90
  • Constitution of Kenya, 2010Article 22(3)
  • Constitution of Kenya, 2010Article 159

Cases cited (6)

  • Cleophas Malala & another v Speaker of the Senate & 2 others; Stewart Madzayo & another (Interested Parties)
    [2021] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 69
  • Robert Khamala Situma & 8 others v Acting Clerk of the Nairobi City County Assembly
    [2022] eKLR
  • Okiya Omtatah Okoiti v Parliamentary Service Commission & another
    [2021] eKLR
  • Anthony Miano & others v Attorney General & others
    [2021] eKLR
  • Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others
    [2015] eKLR
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.