[2023] KEHC 25258 (KLR)

Achayo v Witness Protection Agency & 2 others (Civil Appeal E079 of 2023) [2023] KEHC 25258 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25258 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E079 of 2023

TA Odera, J

November 14, 2023

Between

Pauline Akinyi Achayo

Applicant

and

Witness Protection Agency

1st Respondent

Victims Protection Board

2nd Respondent

Hon. Attorney General

3rd Respondent

Ruling

[b]complaints against staff of the Agency(2)A person aggrieved by the decision of the Committee may, within thirty days of that decision, appeal to the High Court. 1. Suffice it to say, Section 3V of the Witness Protection Act provides for the internal dispute resolution mechanism as relates matters witness protection. What does the law state about the exhaustion doctrine?

2. The Supreme Court in the case ofCo-ordination Board v Eric Gitari * 5 Others, SC Petition No. 16 of 2019 held as follows:[39]According to Gelpe, Marcia R., “Exhaustion of Administrative Remedies: The Lesson from Environmental Cases” (1985). Faculty Scholarship. Paper 81, exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency, and permitting courts to benefit from an administrative body’s determination of facts and exercise of discretion.[40]The doctrine of exhaustion of administrative remedies was settled by this court in the case ofAlbert Chaurembo Mumba & 7 Others (sued on their own behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Schem) v Maurice Munyai & 148 Others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme SC. Petition No. 3 of 2016; [2019] eKLR. This Court stated as follows at paragraph 118:“…Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”(41)In the persuasive case ofR v National Environmental Management Authority, CA No. 84 of 2010; [2011] eKLR the Court of Appeal observed as follows:“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it….” [Emphasis added](42)We are also persuaded by the High Court’s reasoning in Anthony Miano & Others v Attorney General & Others, HC Petition No. E343 of 2020; [2021] eKLR where the court made reference to the doctrine of exhaustion (by citing a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR which had elaborately dealt with the doctrine of exhaustion). The Court stated at paragraph 35:“…..What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved- including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…” [Emphasis added]

3. I am persuaded by the decision in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR, where a 5-Judge Bench held as follows as regards the exhaustion doctrine:52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated in R v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex Parte National Super Alliance (NASA) Kenya and 6 Others [2017] eKLR, where the Court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This isGeoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others[2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

4. The Court of Appeal in the case of Woburn Estate Limited & Another v Mwekangi Holdings Limited (Civil Appeal 33 of 2020) [2023] KECA 765 (23 June 2023) (Judgment) referred to the Supreme Court of Kenya decision of Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR:(116)The foregoing verdict finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this Court and the lowers Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. See Alphonse Mwangemi Munga & 10 Others v African Safari Club Ltd. [2008] eKLR Narok County Council case v Trans Mara County Council[2000] 1 EA 161 Kones v Republic & Another ex parte Kimani wa Nyoike & 4 Others (2008) 3 KLR (EP); Speaker of the National Assembly v Njenga Karume(2008) 1 KLR (EP) 425,Francis Mutuku v Wiper Democratic Movement -Kenya & Others [2015] eKLRDavid Ochieng Baby v Lorna Achieng Ochieng & 2 Others [2017] eKLR among other cases not referred to. The Court of Appeal inGeoffrey Muthinja & Another v Emmanuel Muguna Henry & 1756 Others [2015] eKLR held that:“We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the for last resort and not the first port of call the moment a storm brews within churches as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanism in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage means of dispute resolution.

5. Therefore, where the Constitution and/or statute provides for an internal agency to resolve a dispute or a complaint arising under the said act, parties are bound to refer the complaints to the said agencies before resorting to Court.

6. As espoused above, Sections 3U and 3V of the Witness Protection Act provides for the Witness Protection Complaints Committee which would serve as the internal dispute resolution mechanism in this case.

7. The Petitioner was therefore ideally required to present her appeal to the Witness Protection Complaints Committee. However, there are exception to the exhaustion doctrine.

8. The Court in William Odhiambo Ramogi Case provided that these exceptions are:a)Where the exhaustion requirement would not serve the values enshrined in the Constitution or law.b)Where the parties lack adequate audience before a forum created by a statute, or may not have the quality of audience before the forum that is proportionate to the interests the party wishes to advance in a suit. (See Paragraphs 59-62 of the William Odhiambo Case (Supra))

9. It was incumbent upon the Petitioner to establish that one or both exceptions applied to her case.

10. It is my considered opinion that the Petitioner did not establish either of these. I am alive to the Petitioner’s allegations that she was arbitrarily discharged from the programme. I am also alive to the allegations that she was presenting the complaint on behalf of all other illiterate persons in the programme and other witnesses and victims. However, looking at her Petition and Application, there is no indication of any other victims or witnesses with a similar complaint.

11. In any event, the Petitioner has not established that the Committee established under Section 3V would in any way be unsuited to hear her complaint.

12. In addition, I find that there is no evidence that the Petitioner attempted to present her complaint before the Witness Protection Complaints Committee. She has attached a letter to the Petition informing the Respondents of her desire to sue. That, to me, is not a complaint. In any event, there is no evidence that the said letter was ever sent to the Respondents. While the Petitioner claimed that she sent it via e-mail, there is nothing that points to that.

13. I therefore find and hold that the Petitioner did not present her claim to the Witness Protection Complaints Committee as provided for in the Act. I further find and hold that the Petitioner did not exhaust the internal alternative dispute resolution mechanisms provided for in the Witness Protection Act. I further find and hold that the Petitioner’s claim does not fall within the exceptions of the exhaustion doctrine. In the circumstances, the Petition is premature.

14. Before I conclude, I note that the Petitioner submitted that Section 9(2) of the Fair Administrative Actions Act is unconstitutional. However, the said allegation can only be interrogated upon Parties rendering their submissions thereto. No submissions were made by the petitioner to enable the court make a determination on this issue. In any event section (9) (2) of the Victim Protection Act is in line with Article 159 (2) (c) of the Constitution which enjoin the courts and tribunal to encourage alternative tribunals dispute resolution mechanisms. The petitioner has thus not established that Section 9 (2) of the victim protection Act is unconstitutional.

15. In the end, I find merit in the Preliminary Objection dated October 2, 2023 and I proceed to uphold it. The petition is hereby struck out. Parties shall bear their own costs.

DATED, DELIVERED AND SIGNED AT KISII THIS 14TH DAY OF NOVEMBER 2023. T.A. ODERAJUDGEIn the presence of:Petitioner in personOsebe for the RespondentsOigo - Court AssistantPetitioner:I seek certified copy of the Ruling to enable me appeal.Order: Certified copy of ruling be supplied to petitioner.T.A ODERAJUDGE14. 11. 23