[2021] KEELRC 1806 (KLR)
The court found that while the doctrine of exhaustion of remedies generally requires parties to utilize available internal mechanisms before seeking judicial intervention, the relevant statutory and policy provisions cited by the respondents do not expressly oust the court's jurisdiction. The court further held that...
Source-derived case information.
- Citation
- [2021] KEELRC 1806 (KLR)
- Parties
- Claimant: Sergeant Charles Mwikya Keli; Respondent: The Commanding Officer, Shimo La Tewa Government of Kenya Prison; Respondent: The Regional Prisons Commander, Mombasa County; Respondent: The Commissioner General of Prisons; Respondent: The Ministry of Interior and Coordination of National Government
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 50 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- L Ndolo
- Legal Topics
- Exhaustion of Remedies, Jurisdiction of Employment Court, Public Service Appeals, Fair Administrative Action, Disciplinary Procedure, Violation of Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sergeant Charles Mwikya Keli
Claimant
The Commanding Officer, Shimo La Tewa Government of Kenya Prison
Respondent
The Regional Prisons Commander, Mombasa County
Respondent
The Commissioner General of Prisons
Respondent
The Ministry of Interior and Coordination of National Government
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant was required to exhaust internal appeal remedies before approaching the court.
- 2 Whether the doctrine of exhaustion of remedies ousts the court's jurisdiction in employment disputes involving public officers.
- 3 Whether the court has jurisdiction to hear claims alleging violation of rights in the context of public service employment.
Ratio Decidendi
The court found that while the doctrine of exhaustion of remedies generally requires parties to utilize available internal mechanisms before seeking judicial intervention, the relevant statutory and policy provisions cited by the respondents do not expressly oust the court's jurisdiction. The court further held that where a claimant raises substantive issues involving alleged violations of rights, the Employment and Labour Relations Court is enjoined to inquire into such matters. Consequently, the preliminary objection based on non-exhaustion of remedies was not well founded and was overruled, affirming the court's jurisdiction to hear the claim.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection raised by the respondents is overruled with costs to the claimant.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 50 OF 2020
SERGEANT CHARLES MWIKYA KELI....................................................................CLAIMANT
VERSUS
THE COMMANDING OFFICER
SHIMO LA TEWA GOVERNMENT OF KENYA PRISON.............................1ST RESPONDENT
THE REGIONAL PRISONS COMMANDER
MOMBASA COUNTY...................................................................................2ND RESPONDENT
THE COMMISSIONER GENERAL OF PRISONS.......................................3RD RESPONDENT
THE MINISTRY OF INTERIOR
AND COORDINATION OF NATIONAL GOVERNMENT...........................4TH RESPONDENT
RULING
1. On 7th September 2020, the Claimant filed a Memorandum of Claim challenging his removal from the Kenya Prisons Service.
2. On 9th December 2020, the Respondents filed a Response to the Memorandum of Claim. Embedded in the Response is an objection by the Respondents to the effect that the Claimant ought to have exhausted the appeal remedies, available at the public service, before coming to court.
3. The objection was urged by way of written submissions.
4. The Court was referred to the definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Co. Ltd (1969) EA, 696 where it was stated that:
“a preliminary objection consists of a pure 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.”
5. The basis of the Respondents’ objection is that the Claimant’s suit offends the doctrine of exhaustion of remedies, and the Court therefore lacks the requisite jurisdiction to determine the issues raised therein.
6. In pursuing their objection, the Respondents rely on Section 9(2)(3) of the Fair Administrative Action Act, 2015, Clause K.10 of the Human Resource Policies and Procedures Manual for the Public Service, 2016 and Rule 127(1) of the Prison Rules.
7. Section 9 of the Fair Administrative Action Act, 2015 provides for judicial review generally, while Clause K.10 of the Human Resource Policies and Procedures Manual for the Public Service, 2016 and Rule 127(1) of the Prison Rules provide for appeals to the Public Service Commission.
8. Having read these provisions in their entirety, I find nothing that ousts the jurisdiction of the Court to entertain the Claimant’s claim.
9. Moreover, in his claim before the Court, the Claimant raises substantive issues bordering on violation of rights, into which the Court is enjoined to inquire.
10. For these reasons I find and hold that the objection raised by the Respondents is not well taken and proceed to overrule it with costs to the Claimant.
11. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF APRIL 2021
LINNET NDOLO
JUDGE
ORDER
In view of restrictions in physical court operations occasioned by the COVID-19 Pandemic, this ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of court fees.
LINNET NDOLO
JUDGE
Appearance:
Mr. Egunza for the Claimant
Miss Njau for the Respondents