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ELRCDismissedNot stated in the judgment· [2025] KEELRC 802 (KLR)

Ocharo v Kenya Film Classification Board (Cause E909 of 2024) [2025] KEELRC 802 (KLR)

Employment and Labour Relations Court
13 March 2025
RSRadido Stephen
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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An employer who fails to tell a dismissed employee about their right to appeal cannot later argue the employee should have appealed before going to court.

What this practically means

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Executive summary

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The Claimant sued the Kenya Film Classification Board on 25 October 2024 alleging unfair termination, breach of contract and discrimination, and filed a Motion seeking interim orders including preservation of her former position and disclosure of documents. The Respondent filed a Notice of Preliminary Objection contending the court lacked jurisdiction under sections 11.2.3 and 11.2.4 of its Human Resource Policy and Procedures Manual and section 9(2) of the Fair Administrative Action Act, because the Claimant had not exhausted internal remedies by appealing to the Public Service Commission. The Claimant's Motion was withdrawn when the parties appeared on 27 January 2025, paving the way for determination of the objection. The Respondent relied on authority that courts should not assume jurisdiction before alternative dispute resolution avenues are exhausted. The Claimant argued she fell within the exemption to the exhaustion doctrine because the dismissal letter did not inform her of a right of appeal, as required by the HR Manual, and relied on the maxim that a party cannot benefit from its own wrongdoing. The court observed it is legally doubtful whether an employer's disciplinary process constitutes administrative action under the Fair Administrative Action Act. It held that although the Claimant, a professional HR practitioner, should have known her rights, the Respondent was under a positive obligation to notify her of the right of appeal and failed to do so, causing the appeal period to lapse. On that narrow ground the Notice of Preliminary Objection was dismissed with costs in the cause, delivered virtually on 13 March 2025.

Key legal issues

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01

Whether the dismissal decision is administrative action under the Fair Administrative Action Act

Holding

The court expressed doubt that an employer's disciplinary process and dismissal amount to administrative action under the Act, questioning reliance on section 9(2) to bar the claim.

Reasoning

The Respondent invoked section 9(2) of the Fair Administrative Action Act to support the objection. The court observed it is legally doubtful whether dismissal and the internal appeal process constitute administrative action as contemplated by the Act, noting the unresolved question of whether ordinary employment disciplinary action meets the threshold of administrative action.

p. 3
02

Non-exhaustion of internal remedies and the employer's duty to notify a right of appeal

Holding

The preliminary objection was dismissed because the Respondent failed to inform the Claimant of her right of appeal to the Public Service Commission, causing the appeal period to lapse.

Reasoning

Although the Claimant, a professional human resource practitioner, presumably knew her rights, the Human Resource Policy placed a positive obligation on the Respondent to notify her of a right of appeal within six weeks of dismissal. The Respondent failed, the appeal period lapsed, and on that narrow ground the objection failed.

p. 4

Legal principles established

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  • Where an employer's governing instrument imposes a positive obligation to notify an employee of a right of appeal and the employer fails to do so, resulting in lapse of the appeal period, the employee cannot be penalised for non-exhaustion of internal remedies.

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment claim; not expressly cited in the judgment

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, "Ocharo v Kenya Film Classification Board (Cause E909 of 2024) [2025] KEELRC 802 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/802/eng@2025-03-13

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