Republic v Chief Executive Officer, Independent Electoral and Boundaries Commission & another; Waithera (Exparte Applicant) (Judicial Review E006 of 2023) [2023] KEELRC 2110 (KLR)
The bottom line
#Kenya's Employment Court struck out a dismissed employee's judicial review case because he skipped the internal appeal his employer offered him first.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
It did, being founded on the jurisdiction of the court, a point of law.
Applying the classic test of Law JA in Mukisa Biscuit, the court held that since the notice was founded on the court's jurisdiction, it was a matter of law and fit the definition of a preliminary objection capable of disposing of the suit.
Whether the suit offended the doctrine of exhaustion under Section 9(2) of the Fair Administrative Action Act
Yes; the Respondent was accorded six weeks to appeal but did not, and made no application for exemption under Section 9(4).
The dismissal letter gave the Respondent six weeks to appeal; he filed the Chamber Summons before the period lapsed and never appealed. He tendered no evidence that the Commission could not constitute an appeals committee, and neither his supporting affidavit nor statement invoked the Section 9(4) exceptions. Having failed to test the appellate process, he could not fault it as flawed or ambiguous.
Whether the leave order of 7th February, 2023 should be reviewed, set aside or stayed
The order was reviewed and set aside as one made in error apparent on the face of the record.
Having found non-compliance with Section 9(2), the court agreed the leave order was granted in error apparent on the face of the record under Rule 33 of the ELRC Procedure Rules, and setting aside was the most efficacious remedy, which also disposed of the stay question.
Whether judicial review was a suitable vehicle for the Respondent's grievances
No; the grievances involve contested facts requiring evidence, and the Respondent should pursue a claim instead.
Relying on Fluer Investments, Seventh Day Adventist Church and Diamond Hashim Lalji, the court held that the allegations of irregular disciplinary process raise disputed factual issues outside judicial review's remit, which concerns legality and fairness, not merit review of evidence.
Legal principles established
#- Section 9(2) of the Fair Administrative Action Act mandates exhaustion of internal mechanisms, and exemption under Section 9(4) requires a formal application demonstrating exceptional circumstances.
- Judicial review is not the proper forum for determination of contested matters of fact; such disputes belong to a claim.
Court orders
#- 1.An order be and is hereby issued setting aside the order granted by this court on 7th February, 2023.
- 2.The Chamber Summons Application dated 1st February, 2023 was filed in violation of the provisions of Section 9(4) of the Fair Administrative Action Act, 2015.
- 3.The Chamber Summons dated 1st February, 2023 is unsustainable and is accordingly struck out with directions that the suit be instituted as a claim.
- 4.There shall be no orders as to costs.
- Jurisdiction invoked
- Fair Administrative Action Act, 2015, Section 9; Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 33
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Executive Officer, Independent Electoral and Boundaries Commission & another; Waithera (Exparte Applicant) (Judicial Review E006 of 2023) [2023] KEELRC 2110 (KLR)", Case Analysis (2023). Nairobi ELRC Judicial Review No. E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2110/eng@2023-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.