Nyaoga v Kisii County Assembly Service Board & another (Petition E035 of 2024) [2024] KEELRC 2385 (KLR)
The bottom line
#The Employment Court struck out a former Kisii County Assembly Clerk's emergency challenge to his removal because he had not first appealed to the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction over the motion and petition for want of exhaustion of alternative remedies
The court lacks jurisdiction in the first instance because the Petitioner has not exhausted the dispute resolution mechanisms under Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, and no exceptional circumstances justify exemption
The court applied the exhaustion doctrine, noting that the issues raised concerned the conduct of the disciplinary process, which can be addressed through the statutory appeal to the Public Service Commission. The Court of Appeal in Nyaoga v Chairman Kisii County Assembly, between the same parties, had already held that no exceptional circumstances were shown to bypass internal remedies. The decision of the Supreme Court in Nicholus does not assist because the alternative remedy here was not shown to be inadequate.
Whether the Applicant is entitled to the conservatory reliefs sought
Having found the court lacks jurisdiction, the reliefs fell away and the motion and petition were struck out
The jurisdictional finding disposed of the matter before the merits of the conservatory orders could be considered. The court held that once jurisdiction was lacking, the remaining issues were moot for purposes of the interlocutory application.
Legal principles established
#- Availability of an alternative remedy does not necessarily bar constitutional relief, but courts must scrutinise the purpose of the relief and the adequacy of the alternative remedy
- Exemption from the obligation to exhaust administrative remedies is granted only in exceptional circumstances under Section 9(4) of the Fair Administrative Actions Act
Court orders
#- 1.The motion and the petition are struck out with costs to the Respondents
- Jurisdiction invoked
- Articles 22 and 23(3)(c) of the Constitution, Section 9(4) of the Fair Administrative Actions Act, Section 12(1)(a) & (3)(i) & (iii) of the Employment and Labour Relations Court Act and Rules 10, 45, 47 & 54 of the Employment and Labour Relations Court (Procedure) Rules, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaoga v Kisii County Assembly Service Board & another (Petition E035 of 2024) [2024] KEELRC 2385 (KLR)", Case Analysis (2024). Not stated in judgment (Motion application dated 10th September, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2385/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.