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

(b) In the alternative, 12 months’ salary totalling Kshs.1,343,940/= as compensation for unlawful termination and unfair labour practice. (c) One month salary of Kshs.111,995/= in lieu of notice. (d) Payment of the Claimant’s pension and unpaid leave. (e) Certificate of service. (f) Interest on (b), (c) and (d). (g) Costs of the suit. (h) Any other or further relief that the Court may DRAFT deem fit to grant. 2. The Respondents defended the suit vide the Response to Claim dated 4th July, 2025; shown to have been filed alongside an evenly dated Notice of Preliminary Objection; calling for dismissal of the Claimant’s suit on grounds:(a) THAT the Statement of Claim is incompetent, incurably defective and an abuse of the process of this court, having been lodged in violation of the provisions of RULING Nairobi ELRC Cause No. E879 of 2023 Section 9(2) of the Fair 2 of 8

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Administrative Action Act, 2015 ("hereinafter FAA") as the Claimant has failed to exhaust the 2nd Respondent's internal dispute resolutions mechanisms for appeal pursuant to Clause 12.14 of the 2nd Respondent's Human Resource and Administration Manual (Policies and Procedures) 2020. Thus, this Court ought to direct the Claimant to exhaust the available remedies before instituting the Claim in accordance with the provisions of Section 9(3) of the FAA. DRAFT (b) THAT the Statement of Claim is incompetent, incurably defective and an abuse of the process of this court, having been lodged without the Claimant seeking exemption under the provisions of Section 9(4) of the FAA. No application for exemption has been placed before this court in this regard. (c) THAT the Statement of Claim constitutes an attempt to unlawfully invoke the jurisdiction of this Court and circumvent the mandatory requirements of Sections 9(2) and 9(4) of the RULING Nairobi ELRC Cause No. E879 of 2023 3 of 8

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Fair Administrative Action Act, 2015 with respect to the requirement for exhaustion of internal dispute resolution mechanisms available to the Claimant prior to approaching this Court. The Respondents rely on the decision of the Court of Appeal in Malusha v Swaleh & another (Civil Appeal E051of 2022) [2025] KECA 761 (KLR) (9 May 2025) to this effect. 3. Parties filed written submissions for foregoing Preliminary Objection. and against the It is apparent from the DRAFT aforestated “Preliminary Objection” that the issues raised therein, though purported to be points of law, are heavily clouded with matters of fact. Matters of fact that will require the Court to delve into, and to consider the evidential documents stated in the “Preliminary Objection”. These include the 2nd Respondent’s Human Resource and Administration Manual (Policies and Procedures) 2020. The Respondent alleges that the Claimant failed to exhaust the 2nd Respondent’s internal dispute resolution mechanisms. What are these mechanisms.” Has the alleged manual been produced in evidence and established RULING Nairobi ELRC Cause No. E879 of 2023 4 of 8

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to be a valid and applicable internal policy of the 2 nd Respondent.” Was the Claimant bound by it.” Did it form part of his contract.” 4. Employers’ Human Resource and Administration Manuals (Policies and Procedures) are the employers’ administrative handbooks/guides to ensure smooth operations in an employer’s enterprise. They are not law. Any party to an employment contract alleging breach of the said guidelines must adduce evidence in a trial to prove his allegation. DRAFT 5. Whether or not a party has contravened an employer’s Human Resource and Administration Manual (Policies and Procedures) is a question of fact. required to settle that question. Evidence would be It is not a matter that is capable of being determined on the basis of a Preliminary Objection. 6. The issue of what a Preliminary Objection is, and when it can be raised was exhaustively addressed by the Court of Appeal for Eastern Africa in the case of Mukisa Biscuits Manufacturing Co. Ltd – vs – West End Distributors RULING Nairobi ELRC Cause No. E879 of 2023 5 of 8

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Limited [1969] E.A. 696 where the Court stated as follows:“. . . 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. Examples are an objection to jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” DRAFT 7. The Court of Appeal further stated in the Mukisa Biscuits Case (Supra):“. . . A preliminary objection is in the nature of what used to be called a demurrer. It raised a pure argued point of law, which was on assumption that all the other facts pleaded by the other party were correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of Judicial discretion. The improper raising of points by way of preliminary RULING Nairobi ELRC Cause No. E879 of 2023 6 of 8

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objection does nothing but unnecessary increase of costs and, on occasion confuse issues. The improper practice should stop.” 8. In view of all the foregoing, and having considered written submissions filed on behalf of both parties herein, I find no merit in the Respondent’s Preliminary Objection dated 4th July, 2025, and the same is hereby dismissed with costs. 9. The suit herein shall be fast-tracked, and shall be set down for hearing. DRAFT 10. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF OCTOBER 2026 AGNES KITIKU NZEI JUDGE RULING Nairobi ELRC Cause No. E879 of 2023 7 of 8

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ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Mathenge for the Claimant Miss Mong’ina for the Respondent DRAFT RULING Nairobi ELRC Cause No. E879 of 2023 8 of 8

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