Council, University of Kabianga & Another v Godfrey Odebero Nakhaya

guaranteed under Articles 10, 21, 22, 27, Page 2 of 27

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28, 41, 47, 50(1), 54 and 232 of the Constitution; an order of certiorari to quash the appellants’ decision stopping payment of the allowance; an order of mandamus compelling the appellants to pay the allowance from September 2020 until his retirement or termination of employment; a declaration that, as a person with disability, he will retire at the age of 65 years; general, exemplary and punitive damages for the alleged mistreatment and unlawful conduct; costs and any other orders the court may deem just. 2. The appellants filed a replying affidavit sworn by the 2 nd respondent on 18th respondent’s claim. November The 2020, appellants denying stated that the the respondent’s contract and terms of employment did not include payment of the allowance; that disability does not entitle one to automatic payment of the allowance; that the respondent did not have a personal guide and he was therefore not entitled to the allowance; that the initial payment of the allowance was by mistake due to misapprehension of the law and that the claim should have been filed before the Labour office. 3. The ELRC heard the petition through affidavits and written submissions and in its judgment delivered on the date Page 3 of 27

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aforesaid, found in favour of the respondent, holding that the respondent Page 4 of 27

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was eligible for the payment of the allowance in terms of the Circular dated 26 August 2019 from the Salaries and Remuneration Commission (SRC) and issued an order of mandamus compelling the appellants to pay the respondent the allowance from September 2020 and thereafter on monthly basis until his retirement, or termination of his employment, whichever was earlier. That judgment triggered this appeal. 4. To contextualize this appeal, the brief facts leading to the litigation before the ELRC are necessary, and are as follow: On 22nd December 2009, the 1st appellant employed the respondent as an assistant accountant. The respondent subsequently developed a visual impairment in his left eye and after medical assessment, he was found to have a permanent disability of 30% and he was registered with the National Council for Persons with Disabilities (the Council) under the repealed Persons with Disabilities Act (the Act) on 13th August 2019. Thereafter, on 15th August 2019 to be precise, he wrote to the 1st appellant requesting for monthly disability allowance and vide the letter dated 16 th August 2019, the 1st appellant’s Assistant Registrar, Human Resources, wrote to the Finance Officer instructing that the Page 5 of 27

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respondent be paid monthly disability of Kshs. 15,000 with effect from August 2019. The allowance was paid for one year Page 6 of 27

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but it was abruptly stopped in September 2020 without notice to the appellant. 5. The appellants’ advocate wrote a letter dated 7 th October 2020 to the appellants demanding reinstatement of the allowance but in their response dated 14th October 2020, the appellants declined contending that the respondent did not qualify to be paid the allowance because he did not have a personal guide or assistant who was assisting him to perform his duties. The respondent therefore filed the petition and the ELRC rendered a decision in his favour as stated herein above. 6. Dissatisfied, the appellants lodged this appeal through a memorandum of appeal dated 7th February 2022 on four grounds, contending that the ELRC erred in law and fact in: finding that the respondent had a guide or personal assistant who acted as the driver and therefore he qualified to be paid personal guide allowance; finding that the respondent was completely blind; failing to find that the respondent’s complaint ought to have been resolved using the alternative remedy through the Labour Office and finding that the matter was not brought by way of a statement of claim therefore it had no jurisdiction.(sic) Page 7 of 27

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7. When the appeal came up for plenary hearing, Mr. Leteioa, learned counsel appeared for the appellant while Mr. Munuang’o, learned counsel was present for the respondent. Both counsel relied on their written submissions with brief oral highlights. Mr. Leteioa submitted that neither the respondent’s contract of employment; the Employment Act, the Universities Act nor the applicable remuneration instruments provide for payment of the allowance. Counsel asserted that the only allowance payable is personal guide allowance and that the respondent would only have been entitled to the allowance if he proved that he was completely blind and that he had a personal guide which he did not do. 8. It was his contention that the basis for paying the allowance is the Act and the circular by SRC Ref No. SRC/TS/LCPWD/3/18 (80) dated 17th December 2014; that the respondent did not qualify for payment of the allowance because the medical assessment report he produced showed that he had 30% loss of vision in one eye, it indicated that he did not require mobility aid and that the appellants had no authority or legal obligation to pay the allowance. According to counsel, the respondent did not plead in the petition that he had engaged a driver or adduce evidence to support his Page 8 of 27

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claim except Page 9 of 27

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through a further affidavit which was filed after the appellants had filed their responses to the petition and therefore denied them an opportunity to challenge his claim. Citing the Supreme Court decision in Raila Amolo Odinga & Another v IEBC & 2 Others [2017] KESC 31 (eKLR), counsel argued that a party should not be permitted to travel beyond its pleadings and that parties are required to take up all necessary and material facts in support of their case. 9. Mr. Leteioa asserted that the appellants being employers in the public sector, can only pay what is authorized by law and supported by terms of service; that there was no legal basis for paying the allowance; that the appellants did not owe the respondent an enforceable duty and that there was no right capable of being violated. He further asserted that section 12(2) of the Act only guarantees a qualified employee with a disability, equal terms, compensation and benefits as those available to able bodied employees but it does not create a distinct allowance save for exemption from tax on income accruing from employment. 10. Counsel submitted that the order of mandamus was wrongly issued since there is no statutory or public duty Page 10 of 27

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requiring the appellants to pay the allowance. He cited Kenya National Page 11 of 27

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Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & Others [1997] eKLR for the proposition that an order of mandamus is intended to compel performance of a clear public duty imposed by law, and Mureithi & 2 Others v Attorney General & 4 Others (2006) 1 KLR (e&l) [2006] KEHC 14 (KLR) for the submission that mandamus is only available where there is a specific legal right, but without an equally convenient, beneficial and effective remedy. In counsel’s view, the order of mandamus could not also issue without first quashing the decision stopping payment of the allowance and that the respondent ought to have pursued the salary related grievance through the Labour office under the Employment Act, 2007. He urged the Court to allow the appeal with costs. 11. Opposing the appeal, Mr. Munuang’o submitted on the duty of the first appellate court to re-evaluate and reassess the evidence and make its own conclusions and cited Omar v Ngowa & another (Both suing as administrators of the Estate of the Late Hamiasi Ndoro Chaka [2024] KEHC 8750 Page 12 of 27

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KLR in support of this submission. 12. Regarding the appeal, counsel appellants are bound by the submitted Constitution, that the the Fair Administrative Action Act, the Act and the directives by SRC through the Page 13 of 27

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circular dated 17th December 2014 which provided for payment of an allowance of Kshs. 15,000 to public officers with disabilities which was subsequently reviewed upwards to Kshs. 20,000 through the circular dated 26 th August 2019 which also placed the responsibility to determine eligibility for payment of the allowance on the accounting and or authorized officers. 13. Counsel contended that the respondent has 30% permanent visual impairment in the left eye which affects his ability to perform tasks; that after registering with the council, the appellants approved and paid the allowance and therefore the designation of the allowance paid to the respondent as “disability allowance” rather than “personal guide allowance” was immaterial since the allowance corresponded with what SRC recommended. It was his further contention that the appellants did not inform the respondent that he was required to prove that he had a personal guide in order to qualify for the allowance thus, the decision to stop the allowance was made without notice and without giving him an opportunity to be heard which rendered the decision procedurally unfair and in violation of Article 47 of the Constitution as read with section 4 of Page 14 of 27

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the Fair Administrative Action Act. Counsel cited the persuasive decision of Barre v Director-Legal National Page 15 of 27

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Registration Bureau & 2 Others [2025] KEHC 8862 (KLR) for the proposition that for an administrative action to be procedurally fair, the affected person must be given reasonable opportunity to be heard before the action is taken against him. 14. Mr. Munuang’o maintained that the respondent’s visual disability makes it difficult for him to drive safely to and from the workplace early in the morning and evening respectively forcing him to engage the services of a driver to take him to and from the workplace and therefore, the driver qualifies as his personal guide. He asserted that the respondent having been registered with the council, was entitled to the relevant assistance and stopping payment of the allowance amounted to discrimination in violation of Article 27 of the Constitution and infringed the rights guaranteed under Articles 41 and 47 of the Constitution as read with sections 21(7)(iii) and 62(2)(k) of the Act. 15. Although he conceded that the respondent is not completely blind, counsel contended that complete blindness was not the prerequisite for payment of the allowance and cited section 2 of the Act which defines disability to include visual impairment which adversely affects a person’s social, Page 16 of 27

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economic or environmental participation. It was his view therefore, that Page 17 of 27

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partial visual disability in one eye qualifies as a disability since the council recognized it and registered the respondent which entitled him to the rights, benefits and privileges available to persons with disabilities, including the allowance. 16. Regarding the appellants’ contention that there was an alternative dispute resolution mechanism which the respondent should have exhausted first, Mr. Munuang’o maintained that the respondent’s petition raised issues of constitutional violations, namely; the right to fair administrative action and discrimination which the Labour officer could not adequately address, making the doctrine of exhaustion inapplicable to the respondent’s case. Counsel cited Abidha Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others (Interested Parties) [2023] KESC 113 (KLR), for the proposition that the existence of an alternative remedy does not bar a constitutional relief where the alternative remedy is inadequate to address the alleged violations of constitutional rights. Counsel again cited Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR and Chief Justice and President of the Supreme Court of Kenya & another v Page 18 of 27

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Bryan Mandila Khaemba submissions. Counsel Page 19 of 27 [2021] eKLR for similar

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maintained that the respondent’s complaint was not a claim on salary but a complaint on the infringement of his constitutional rights and therefore the petition was properly heard by the ELRC. On the basis of those arguments, he urged the Court to dismiss the appeal with costs. 17. Being a first appeal, the duty of this Court is to reevaluate reconsider and reanalyse the evidence a fresh and draw its own conclusions on that evidence and the law, bearing in mind, however, that it did not have the advantage of seeing the witnesses testify and give due allowance for that. 18. In Imanyara & 2 Others v Attorney General [2016] KECA 557 (KLR), this Court put the position as follows: “An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must evaluate it reconsider the evidence, itself draw its and own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 19. We have considered the record, submissions by the parties, the authorities cited and the applicable law. The core issues that arise for determination in this appeal, are Page 20 of 27

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whether; the Page 21 of 27

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respondent is entitled to the allowance; whether the appellants acted properly in terminating the allowance and whether the doctrine of exhaustion of remedies applied to the respondent’s case. 20. In principle, the facts of this appeal which we have highlighted earlier are not in dispute. The respondent was employed by the 1st appellant but he developed visual impairment in one of his eyes while in employment and was medically assessed at 30% permanent disability. He was registered with the council under the Act and his application for the allowance was approved and the allowance was paid from August 2019 but it was discontinued in September 2020 leading to the litigation before the ELRC challenging the appellants’ action on the grounds that it was in violation of his right to fair administrative action and freedom from discrimination. 21. Upon considering the respective parties’ arguments, the ELRC appreciated that although the Act provided for rights and privileges to persons with disabilities, it did not expressly provide for payment of the allowance. It noted however, that SRC acting pursuant to its constitutional mandate under Article 230(4) (b) of the Constitution, issued the circular Page 22 of 27

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dated 17th December 2014 advising that persons with disabilities are Page 23 of 27

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entitled to the allowance for purposes of engaging a personal guide. To be eligible for payment of the allowance, the circular directed that a public officer must be registered with the council. The ELRC being satisfied that the respondent met the criteria set by SRC, found in his favour triggering this appeal. 22. The first issue therefore is whether the respondent is entitled to the allowance. According to the advice by SRC through the circular dated 17 th December 2014, one has to register with the council to qualify for consideration for payment of the allowance. In other words, he must be a person with disability. Section 2 of the Act defined “disability” as follows: “a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.” 23. One of the functions of the council under section 4 (c) of the Act was to register persons with disabilities and that was why the circular required a public officer with disability to register with the council first and thereafter, the accounting officer or authorized officer would determine eligibility for payment of the allowance based on the type and degree of Page 24 of 27

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the disability. The circular also directed that the accounting officers or authorised Page 25 of 27

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officers facilitate the personal guide with economy air or rail ticket whenever the guide is accompanying the beneficiary. 24. In this appeal, there is no dispute that the respondent is a person with disability duly registered with the council thereby meeting the primary requirement under the Act and the circular by SRC as a person with disability. In terms section 2 of the Act, the respondent’s condition falls within the definition of disability, namely a physical, sensory, mental or other impairment, including “any visual”, hearing, learning or physical incapability, which “impacts adversely” on social, economic or environmental “participation.” The law required the respondent to demonstrate that he suffered from “any visual” incapability which adversely impacts on his social, economic or environmental participation and indeed, he satisfied this criterion and that was why he registered with the council. Upon being registered, he became entitled to the benefits and privileges available to persons with disabilities under the Constitution, the Act and any other law, including the circulars issued by SRC. 25. The appellants’ argument that the respondent was not entitled to the allowance is two-fold: first, that the Employment Act, their Human Resource Policy and the Page 26 of 27

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respondent’s terms Page 27 of 27

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and conditions of service do not provide for payment of the allowance and therefore they had no obligation to pay him the allowance. We find this argument rather disngenous because when the respondent was employed, he did not have disability. The disability set in later in the course of employment and therefore his terms and conditions of service could not have taken into account a situation that was not in existence. In any case, section 15 (5) of the Act required an employer to provide such facilities and effect such modifications, whether physical, administrative or otherwise, in the workplace as may reasonably be required to accommodate persons with disabilities. 26. Section15(5) imported the principle of reasonable accommodation from The United Nations Convention on the Rights of Persons with Disabilities (CRPD) to which Kenya is a signatory (by virtue of Articles 2(5) and 2(6) of the Constitution. Article 2 of the Convention defines reasonable accommodation as follows: “‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of Page 28 of 27

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all human freedoms.” rights Page 29 of 27 and fundamental

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27. In Vikash Kumar v Union Public Service Commission [2021] 12 S.C.R. 311 the Supreme Court of India observed appreciating General Comment No. 6 by the Committee on the Rights of Persons with Disabilities, that reasonable accommodation is a component of the principle of inclusive equality and a substantive equality facilitator. 28. The circular by SRC was intended to augment the requirements of the Act to reasonably accommodate public officers with disabilities and bridge the gap between them and the able-bodied persons working under similar circumstances thus, engender inclusivity and substantive equality. In that regard therefore, the respondent having developed the disability in the course of employment, it was not possible that his terms and conditions of service could have provided for the allowance but the appellants had an obligation to reasonably accommodate him. 29. The appellants’ second limb of the argument was that the respondent did not have a guide and therefore he was not entitled to the allowance. Although the Act did not provide for payment of the allowance, SRC advised through its circulars on the payment of the allowance and placed the responsibility of determining eligibility on the accounting and Page 30 of 27

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or authorized Page 31 of 27

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officers the criteria for qualifying for payment of the allowance being registration with the council. The respondent has permanent visual disability of 30% in his left eye and it was on that basis that he was registered with the Council and his application for the allowance was approved and paid. The respondent deposed in his supplementary affidavit that because of the nature of his disability and the difficulties he faces when driving, he was forced to hire a driver to drive him to and from his workplace. 30. According to the circular by SRC, once the respondent was registered with the Council, the obligation of the 1 st appellant’s accounting officer was to determine his entitlement to the allowance based on the nature and degree of his disability. The circular gave two options, first; the appellants could provide a guide at the 1 st appellant’s cost, or pay the allowance. The appellants did not dispute the respondent’s assertion that he had difficulties driving to the work and back home forcing him to hire a driver to assist him. 31. In the circumstances, we agree with the ELRC that the respondent was eligible and entitled to payment of the allowance. We wish to add that it did not matter whether the Page 32 of 27

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allowance was called “disability allowance” or “personal guide Page 33 of 27

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allowance” since the sole purpose was to enable the respondent get assistance to help him commute to and from the workplace. The appellants’ argument that the respondent did not have a guide and was not therefore entitled to the allowance has no merit. The other argument that he is not totally blind has no merit too because the definition of disability under the Act sufficiently covers the respondent’s situation. 32. The appellants further argued that the respondent’s claim that he had a driver was not pleaded in the petition but was introduced through a further affidavit after they had filed their response to the petition; that the claim was not supported by evidence and that it denied them an opportunity to challenge it. This argument is also not meritorious because in constitutional litigation, pleadings include affidavits and responses which may include grounds of opposition and an affidavit made on oath has evidential value. The respondent deposed in his supplementary affidavit that he had a driver who was his guide which was in response to the appellants’ contention through their replying affidavit that he did not have a guide. The appellants had the option to seek leave to file a further affidavit to respond to Page 34 of 27

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the respondent’s deposition or seek to cross examine him on this Page 35 of 27

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fact but they chose to do nothing. Their complaint is belated and an afterthought. 33. Turning to the second issue, whether the appellants acted properly in terminating the allowance, the respondent argued that the allowance was terminated without notice and without being given an opportunity to be heard. He contended therefore that the action was in violation of his right to fair administrative action guaranteed under Article 47(1) of the Constitution. The appellants did not respond to this contention, leaving it uncontroverted. The allowance was approved and paid for over one year before it was withdrawn without notice or reasons to the respondent. Article 47(1) provides that every person has the right to administrative action that is expeditious, lawful, reasonable and procedurally fair. Sub Article (2) requires that reasons for the action be given if a right or fundamental freedom has been or is likely to be adversely affected by the administrative action. Article 47 therefore embodies the principle of natural justice; the right to fair hearing which is intended to check against acts of illegality, unreasonableness, irrationality and procedural irregularity. 34. The utility of the right to fair administrative action under Page 36 of 27

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Article 47 was well captured by this Court (Githinji, JA) in Page 37 of 27

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Judicial Service Commission v Mbalu Mutava & Another [2015] KECA 741 (KLR) as follows: [22] …The right to right to fair administrative action under Article 47(1) encompasses several duties–duty to act expeditiously, duty to act fairly, duty to act lawfully, duty to act reasonably and, in the special case mentioned in Article 47(2), duty to give written reasons for the administrative action. The duty to act lawfully and duty to act reasonably refers to the substantive justice of the decision whereas the duty to act expeditiously, efficiently and by fair procedure refers, to procedural justice.” 35. In Krishnadatt v state of M.P & another -Civil Appeal No(s). 4806 of 2011 (consolidated with Civil Appeal No. 4807; 4808 and Civil Appeal No 4809), the Supreme Court of India stated that the principle of the right to be heard lies at the very heart of procedural fairness, ensuring that no one is condemned or adversely affected, without being given an opportunity to present their case. And in Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR 85, the Supreme Court of India again observed as follows: “Today in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas, it is only improving the quality of government by injecting fair Page 38 of 27

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play into its wheels…law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited Page 39 of 27

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to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by social necessity.” 36. The allowance was a benefit pursuant to the circular by SRC and it was paid upon the respondent satisfying the conditions set therein. It was however withdrawn without notice; without giving him an opportunity to be heard and without written reasons for the action. This was evidently in violation of his right to fair administrative action, a fundamental right guaranteed under Articles 47(1) and 47 (2) of the Constitution. The respondent having demonstrated that he had a driver who acted as his personal guide or aid, he was entitled to the allowance to reasonably accommodate his disability and facilitate his movement to and from the workplace transforming the workplace into barrier-free. The withdrawal of the allowance at the appellants’ whims, was unlawful and exposed the respondent to the challenges of commuting to and from work while the appellants expected him to perform his duties at his full potential thereby creating the same obstacles and barriers the allowance was intended to mitigate. 37. The principle of reasonable accommodation we alluded to earlier, requires dialogue and consultation with the affected Page 40 of 27

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person to understand his needs, the barriers he faces and how Page 41 of 27

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to assist him overcome them. In Vikash Kumar v Union Public Service Court Commission (supra) observed the that reasonable accommodation determinations must be made on a case-by-case basis, in consultation with the concerned disabled person on how to tackle the barriers instead of making assumptions about how the relevant barriers can be overcome. 38. In Gulshan Kumar v Institute of Banking Personnel Selection and Others (Writ Petition (Civil) No 1018/2022)), citing Shri Vikas Kumar vs. Union of Public Service Commission (Appeal No. CIC/WB/A/2009/000734), the Supreme Court of India again stated that the accommodation which the law mandates is reasonable because it has to be tailored to the requirements of each condition of disability since the expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence. 39. The respondent faces his own barriers and impediments which require accommodation that may be different from other persons with disabilities and therefore according him an opportunity to be heard as required by Article 47(1) of Page 42 of 27

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the Constitution, would have enabled the appellants to understand the barriers and obstacles he faces, negotiate and agree on how Page 43 of 27

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to tackle them instead of making assumptions that he is not totally blind thereby making a decision in complete disregard of Article 47 of the Constitution and his rights as a person with disability. 40. In the circumstances, we are further satisfied that the ELRC was right in issuing an order of mandamus compelling the appellants to pay the respondent a personal guide allowance. 41. Turning to the third and final issue, the appellants submitted that the dispute being salary-related should have been taken to the Labour office and therefore the respondent did not exhaust the available alternative remedy before approaching the ELRC. The respondent maintained that his complaint was on the violation of constitutional rights thus, the alleged alternative remedy would not have been effective. It is indeed, settled law that where internal dispute resolution mechanisms exist, parties should exhaust the available internal administrative remedies or alternative dispute resolution mechanisms before approaching the courts. 42. In Geoffrey Muthinja & another v Emanuel Muguna Henry & 1756 others [2015] eKLR, this Court held as Page 44 of 27

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follows: “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 Page 45 of 27

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the fora of 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 alternative means of dispute resolution.” 43. The Supreme Court addressed the issue in Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] KESC 83 (KRL) as follows: [116] [W]here there exists an alternative method of dispute resolution established by legislation, courts must exercise restraint in exercising their jurisdiction as conferred by the Constitution and must give deference to the dispute resolution bodies established by statute with the mandate to deal with such specific disputes in the first instance. 44. In Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), the Supreme Court expounded on the issue in the following words: Page 46 of 27

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[105] [T]he availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional Page 47 of 27

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relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.” 45. The supreme Court of India in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others AIR 1999 SUPREME COURT 22, also delineated exceptions under which a court would be justified in entertaining a petition despite the party not having exhausted the alternative remedy provided by the statute, namely; (i) where the petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings challenged are wholly without jurisdiction; or (iv) where the Page 48 of 27

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vires (lawfulness) of an Act is challenged. 46. In sum, the jurisprudence emerging from those decisions is that for a party to successfully raise the doctrine of exhaustion Page 49 of 27

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as a defence to a suit before the court, the alternative remedy should be effective and efficacious otherwise the court retains original jurisdiction to hear the dispute if the relief sought cannot be adequately addressed by the available alternative forum in the circumstances of the particular case. 47. In the present case, we have perused the replying affidavit filed before the ELRC in response to the respondent’s petition. The 2nd appellant deposed at paragraph 13 of his affidavit that the petitioner ought to have taken his complaint over the alleged denial or withholding of the allowance being a matter involving pay to the Labour office. The import of that deposition is that there was an alternative dispute mechanism through the Labour office which the respondent ought to have invoked first before approaching the ELRC, implying that the respondent’s petition was barred by the doctrine of exhaustion. In his petition, the respondent sought a declaration that his rights guaranteed under Articles 10, 21, 22, 27, 28, 47, 47, 50(1), 54 and 232 of the Constitution had been violated by the appellants; an order of certiorari to quash the appellants’ decision stopping payment of the allowance; an order of Page 50 of 27

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mandamus compelling the appellants to pay the allowance from Page 51 of 27

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September 2020 until his retirement and a declaration that as a person with disability, his retirement is sixty five years. 48. It is obvious from the pleadings that the respondent’s petition was on the violations his constitutional rights and fundamental freedoms. The appellants did not demonstrate that the Labour Office could offer an efficacious and effective remedy under Employment Act and that it could issue declarations regarding the alleged violations and redress those violations by issuing orders of mandamus the respondent had sought, to persuade the court that the respondent ought to have first invoked such alternative remedy. The appellants’ argument in this regard has no merit and fails. 49. The upshot is that we find no merit in this appeal and we hereby dismissed it with costs. Dated and delivered at Nairobi this 25th Day of September, 2026 K. M’INOTI ………………………… JUDGE OF APPEAL E. C. MWITA ………………………… JUDGE OF APPEAL B. ONGAYA ……………………….. JUDGE OF Page 52 of 27

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APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR Page 53 of 27

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