1.The applicant vide chamber summons dated March 27, 2023 sought the court’s leave to apply for judicial review orders of:-
2.The 1st and 4th respondents entered appearance then raised a preliminary objection on the April 3, 2023, which comes out as follows;
3.The preliminary objection was canvassed by way of written submissions with the respondents filing on the April 24, 2023 while the ex parte applicant filed his on April 18, 2023.
4.The respondents submitted in support of their preliminary objection on grounds that the applicant’s application was prematurely instituted as he had not exhausted the 4th respondent’s internal disciplinary mechanism as set out in its constitution.
5.The respondents submitted on March 1, 2023 that the 1st respondent issued a notice to show cause letter to the applicant to attend a disciplinary hearing of the National Administrative Council (NAC) of the 4th respondent on March 8, 2023 which the applicant attended and defended his case. Subsequently, NAC reached a decision to suspend the applicant and issued him suspension letter dated March 14, 2023 and forwarded its decision to the National Executive Board for further deliberations and ratification of its decision and this is when the applicant instituted this case.
6.The respondents submitted in contrast of the applicant’s argument that the 4th respondent lacks a viable internal disciplinary mechanisms; article 154(4) (d) (i) the 4th respondent’s constitution provides a member or union official on whom a disciplinary action has been taken shall have recourse for appeal at the National Executive Board; Art 12(2) further states that if aggrieved by the decision of NEB one should appeal the decision to the Advisory Council within 30 days and if dissatisfied with the decision of the Advisory Council article 12(4) the party has right to restate his case at the delegates conference where the matter shall be deliberated on.
8.In view of the foregoing, it was submitted that this court does not have jurisdiction as the applicant prematurely instituted his application dated March 27, 2023 before exhausting the 4th respondent’s internal disciplinary mechanisms and prayed that the preliminary objection be upheld.
9.The ex parte applicant submitted that the doctrine of exhaustion cannot be subject to a preliminary objection as it is subject to the court’s discretion and further it calls upon the court to invite relevant facts and relied on the landmark case Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd  EA 69 which stated a preliminary objection should raise a pure point of law; it argued on the assumption that all the facts pleaded by the other side are correct; and that it cannot be raised if any fact has to ascertained or if what is sought is the exercise of judicial discretion.
Analysis and Determination
11.It is the position of the respondents that the applicant has not exhausted the internal disciplinary mechanism provided under the 4th respondent’s constitution and therefore the suit offends the doctrine of exhaustion.
16.The applicant’s argument that the 4th respondent’s internal mechanisms as laid down by the respondents is biased has not been challenged by the respondents and respondents have not proved to the court that the applicant will be granted an impartial and fair hearing to issues set out in his application dated March 27, 2023.
17.Secondly the preliminary objection does not raise a pure point of law as the court may still be expected to adjudicate on whether the internal mechanisms provided in the constitution of the 1st respondent is sufficient to handle this matter. Going by the submissions of the respective parties and the authorities the provision for ADR mechanism does not take away the court’s jurisdiction n special circumstances. The said Alternative Dispute mechanism must be encouraged as much as possible in order to unclog backlog of cases in court but must not oust the court’s jurisdiction completely. In this case the court finds the submissions raised by the respondent/applicant persuades the court to proceed with the hearing of this application.
18.The preliminary objection which is not purely on a matter of law is found not to be merited and so is dismissed. The application is therefore to proceed.
19.Each party will meet its costs.