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Case Brief · caselaw.co.ke
ELRCDismissedCause No. E879 of 2023

Thomas Waweru Waithera v The Chief Executive Officer, Independent Electoral and Boundaries Commission & another

Employment and Labour Relations Court
2 October 2026
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employer's HR manual is not law, so claims about breaching it must be decided at a full hearing with evidence.

What this practically means

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Executive summary

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The Claimant, Thomas Waweru Waithera, sued the CEO of the Independent Electoral and Boundaries Commission and the Commission itself, seeking reinstatement or, alternatively, twelve months' salary of Kshs.1,343,940 as compensation for unlawful termination and unfair labour practice, one month's salary in lieu of notice, pension and unpaid leave, a certificate of service, interest and costs. The Respondents filed a Response dated 4th July 2025 together with a Notice of Preliminary Objection arguing that the Statement of Claim was incompetent and an abuse of process for failure to exhaust the 2nd Respondent's internal dispute resolution mechanisms under Section 9(2) of the Fair Administrative Action Act and Clause 12.14 of its Human Resource and Administration Manual 2020, and for failure to seek exemption under Section 9(4) of the FAA, relying on the Court of Appeal decision in Malusha v Swaleh. The court, applying the Mukisa Biscuits test, held that the objection, though framed as points of law, was heavily clouded with matters of fact: it would need to examine the HR Manual, establish its validity and applicability, and determine whether the Claimant was bound by it and whether it formed part of his contract. The court further held that employers' HR Manuals are administrative handbooks, not law, and allegations of their breach must be proved by evidence at trial. The Preliminary Objection was dismissed with costs and the suit ordered fast-tracked for hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection dated 4th July, 2025, founded on Sections 9(2), 9(3) and 9(4) of the Fair Administrative Action Act, is merited
  2. 2.Whether the issues raised in the Preliminary Objection are pure points of law capable of determination without ascertainment of facts

Key legal issues

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01

Whether the preliminary objection on failure to exhaust internal dispute resolution mechanisms is a pure point of law

Holding

The objection was not a pure point of law; it was clouded with matters of fact requiring evidence and was dismissed.

Reasoning

The objection required the court to examine the 2nd Respondent's Human Resource and Administration Manual, establish whether it is a valid and applicable internal policy, whether the Claimant was bound by it and whether it formed part of his contract. These are factual questions that cannot be resolved on a preliminary objection under the Mukisa Biscuits test.

02

Status of employers' HR Manuals and Procedures

Holding

HR Manuals are administrative handbooks, not law; allegations of breach require evidence at trial.

Reasoning

The court held that Human Resource and Administration Manuals are guides to ensure smooth operations in an employer's enterprise. They are not law. A party alleging breach must adduce evidence in a trial to prove the allegation, so the objection could not dispose of the suit at the interlocutory stage.

p. 5

Legal principles established

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  • An employer's Human Resource and Administration Manual is not law; breach of its guidelines must be proved by evidence at trial.
  • Whether a party has contravened an employer's HR Manual is a question of fact not determinable on a preliminary objection.

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 4th July, 2025 is dismissed with costs
  2. 2.The suit shall be fast-tracked and set down for hearing

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (suit for unfair termination and unfair labour practice)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find no merit in the Respondent’s Preliminary Objection dated 4th July, 2025, and the same is hereby dismissed with costs.
p. 7Disposition - dismissal of preliminary objection
The suit herein shall be fast-tracked, and shall be set down for hearing.
p. 7Fast-tracking of the suit
Whether or not a party has contravened an employer’s Human Resource and Administration Manual (Policies and Procedures) is a question of fact. Evidence would be required to settle that question.
p. 5HR Manual breaches are questions of fact
A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.
p. 6Definition of preliminary objection (Mukisa Biscuits)

Issues in the judgment

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minor

Document bears 'DRAFT' watermark throughout despite being signed and delivered

minor

Response to Claim dated 4th July, 2025 to a claim filed 31st October 2023 - unexplained long gap

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, "Thomas Waweru Waithera v The Chief Executive Officer, Independent Electoral and Boundaries Commission & another", Case Analysis (2026). Cause No. E879 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2763/eng@2026-10-02

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