James Omariba Nyaoga v Chairman Kisii County Assembly & 3 others

The Court traced the doctrine through Speaker of the National Assembly v Karume, Mutanga Tea, Muthinja and Ramogi, holding that an aggrieved party must first pursue available administrative remedies. The elaborate removal and appeal procedures in clauses D35–D37 of the Kisii County Assembly Human Resource Manual, backed by section 77 of the County Governments Act, clothed the PSC with appellate jurisdiction. The appellant led no evidence of exceptional circumstances justifying direct court access.

The appellant argued that an internal policy document could not confer or direct jurisdiction since only Parliament may make law. The Court disagreed, reading Article 253(1)(c) of the Constitution alongside section 77 of the County Governments Act, and noting that the Employment Act recognises a Human Resource Manual as a proper instrument in disciplinary matters. The Court endorsed the view that the Manual postpones rather than removes jurisdiction.

The Court acknowledged that courts retain residual jurisdiction in exceptional circumstances, citing Mandila Khaemba, Fleur Investments and section 9(4) of the Fair Administrative Action Act. However, the appellant led no evidence that the internal remedy was ineffective, unavailable or inadequate. Further, the 3rd respondent had reviewed the charges in compliance with the trial court's order and invited the appellant to respond, so remedies remained live and unexhausted.

As a first appeal, the Court was bound to re-evaluate the evidence and law under Rule 31(1)(a) of the Court of Appeal Rules, citing Abok James Odera v John Patrick Machira. Having done so, it found no error in the trial Judge's conclusion that the petition was premature because the appellant had not first appealed to the PSC or sought review before the County Assembly Service Review Board.