Ocharo v Kenya Film Classification Board (Cause E909 of 2024) [2025] KEELRC 802 (KLR)
The bottom line
#An employer who fails to tell a dismissed employee about their right to appeal cannot later argue the employee should have appealed before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employment and Labour Relations Court should assume jurisdiction over a claim where internal appeal remedies under the Respondent's Human Resource Policy were not exhausted
- 2.Whether the dismissal decision and appeal process amount to administrative action under the Fair Administrative Action Act
- 3.Whether the Respondent's failure to notify the Claimant of a right of appeal in the dismissal letter precludes upholding the preliminary objection
Key legal issues
#Whether the dismissal decision is administrative action under the Fair Administrative Action Act
The court expressed doubt that an employer's disciplinary process and dismissal amount to administrative action under the Act, questioning reliance on section 9(2) to bar the claim.
The Respondent invoked section 9(2) of the Fair Administrative Action Act to support the objection. The court observed it is legally doubtful whether dismissal and the internal appeal process constitute administrative action as contemplated by the Act, noting the unresolved question of whether ordinary employment disciplinary action meets the threshold of administrative action.
Non-exhaustion of internal remedies and the employer's duty to notify a right of appeal
The preliminary objection was dismissed because the Respondent failed to inform the Claimant of her right of appeal to the Public Service Commission, causing the appeal period to lapse.
Although the Claimant, a professional human resource practitioner, presumably knew her rights, the Human Resource Policy placed a positive obligation on the Respondent to notify her of a right of appeal within six weeks of dismissal. The Respondent failed, the appeal period lapsed, and on that narrow ground the objection failed.
Legal principles established
#- Where an employer's governing instrument imposes a positive obligation to notify an employee of a right of appeal and the employer fails to do so, resulting in lapse of the appeal period, the employee cannot be penalised for non-exhaustion of internal remedies.
Court orders
#- 1.The Notice of Preliminary Objection is dismissed
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment claim; not expressly cited in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above, the Notice of Preliminary Objection is dismissed.
The Respondent failed to fulfil that obligation with the consequence that the period for lodging an appeal with the Public Service Commission lapsed.
The jury is still out on whether a disciplinary process and action by an employer in ordinary employment can meet the threshold of an administrative action.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ocharo v Kenya Film Classification Board (Cause E909 of 2024) [2025] KEELRC 802 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/802/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.