Katiba Institute & another v Attorney General & 2 others; Muthaura Doreen Nkatha & 9 others (Interested Parties) [2021] KEELRC 1145 (KLR)
The bottom line
#Kenya's Employment Court struck out a challenge to IPOA Board appointments because the petitioners skipped the statute's required complaint process.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a proper point of law
The objection was a point of law founded on the pleadings and the statute, satisfying the Mukisa Biscuit test
Applying the classic definition in Mukisa Biscuit Co v West End Distributors, the court held the objection rested on Section 14 of the IPOA Act and the exhaustion doctrine, both pure questions of law capable of disposing of the suit without entering the factual merits.
Whether the Petitioners were obliged to exhaust the Section 14 IPOA Act removal mechanism
Yes; failure to exhaust rendered the Petition incompetent
Section 14 of the IPOA Act prescribes removal of a Board member via a petition to the Public Service Commission, then the National Assembly, the President and a tribunal. The complaint - that the Interested Parties were appointed to posts they did not apply for - fell within this mechanism, which the Petitioners bypassed, contrary to the exhaustion doctrine.
Effect of delay in instituting the Petition
The Petition was filed after a considerable period in contravention of the law, supporting its incompetence
The 2nd Respondent argued a delay of over one year violated Section 9(1) of the Fair Administrative Actions Act requiring prompt institution. The court noted the Petition was filed after a considerable period of time, treating the delay as part of the failure to follow the prescribed procedure.
Legal principles established
#- Where a statute provides a mechanism for handling a complaint, that mechanism must be triggered before a party may properly approach the Court
Court orders
#- 1.The Petition is struck out with costs to the 2nd Respondent and the 1st Interested Party
- Jurisdiction invoked
- Articles 22, 258 and 162(2) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Rule 7(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katiba Institute & another v Attorney General & 2 others; Muthaura Doreen Nkatha & 9 others (Interested Parties) [2021] KEELRC 1145 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1145/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.