6.In his Replying Affidavit, the Respondent depones that the Disciplinary Committee consisted of two Commissioners which denied him the right to appeal.
7.The gist of the Respondent’s arguments is that the 2nd Respondent did not adhere to its Human Resource instruments.
8.That under the instruments, it was unclear which came before the other review and appeal.
9.That because the affiant appeared before the Commission Disciplinary Committee, he should be exempted from the doctrine of exhaustion as the appeal would not have been fair and genuine, alternative procedure and no witness testified.
10.The affiant further deposes that the Commission Disciplinary Committee consists of Commissioners and the Commission had no Commissioners.
11.That the dismissal letter makes no reference to the disciplinary proceedings but refers to the 284 plenary meeting held on 6th January, 2023 which deliberated on the case and found the affiant culpable yet the Commissioners were away on 6th January, 2023 conducting a Senatorial By-election in Elgeyo Marakwet.
12.The affiant deposes that he did not appeal as there is no panel to hear the appeal and the panel that heard him would have heard the appeal.
13.Counsel isolated four issues including costs. Others included, whether the application is bad in law under the doctrine of exhaustion, review, vary or discharge and/or set aside the order issued on 7th February, 2023 and grant of stay.
14.On the 1st issue, counsel relied on Section 9 of the Fair Administrative Action Act to urge that the Act required exhaustion of internal remedies before seeking judicial redress and the dismissal of the applicant was an administrative action and he was bound to exhaust the internal dispute resolution mechanisms.
15.Reliance was made on the sentiments of the Court of Appeal in Geoffrey Muthinja & another V Samuel Muguna Henry & 1756 others (2015) eKLR on the doctrine of exhaustion as were those of Mativo J. in Krystalline Salt Ltd V Kenya Revenue Authority (Supra) to submit that the applicant had not sought for exemption before filing the Chamber Summons and had not established the exceptional circumstances to warrant exemption.
16.The sentiments of the court in William Odhiambo Ramogi & 3 others V Attorney General & 4 others (2020) eKLR were cited to demonstrate the exemptions under Section 9 of the Fair Administrative Action Act, 2015 to urge that the applicant had not demonstrated any of them as the Commissioners were yet to take up office, who are supposed to appoint members of the Appeals Committee and the 2nd Respondent’s inability to constitute the committee had not been demonstrated and the applicant sought no information from the 2nd Respondent on how the appeal or review process would be deployed.
17.The court was urged to find that the Chamber Summons was pre-mature and offended the doctrine of exhaustion.
18.On review, variation and/or setting aside of the order of 7th February, 2023, counsel submitted that the court had jurisdiction to do so under Section 80 of the Civil Procedure Act and Order 45 Rule 10 of the Civil Procedure Rules, 2010 as the Chamber Summons Application was filed in violation of Section 9(2) of the Fair Administrative Action Act, 2015 as the applicant had not exhausted internal mechanisms.
19.Reliance was made on the sentiments of the Supreme Court in United Millers Ltd V Kenya Bureau Standards & 5 others (2021) eKLR on the necessity to exhaust internal mechanisms and judicial restraint.
20.That the leave was granted in error.
21.The decision in Anthony Gachara Ayub v Francis Mahinda Thinwa  eKLR and others were relied upon to urge the court to review, vary and/or set aside the order issued on 7th February, 2023.
22.On stay of the order issued on 7th February, 2023, counsel urged that since the court had jurisdiction to do so and the order was irregular, the same ought to be stayed as the Respondent stood to loose legal costs in defending a suit instituted illegally.
Findings and determination
42.The issues for determination are;
43.As to whether the Notice of Preliminary Objection dated 17th March, 2023 meets the threshold of a Preliminary Objection as enunciated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd  EA 696, the court is of the view that since the notice is founded on the jurisdiction of the court, the notice meets the test of a Preliminary Objection as Law JA stated;
44.Since jurisdiction is a matter of law, the notice of Preliminary Objection fits the bill.
45.As to whether the Preliminary Objection is merited, this ushers the court to the issue as to whether the Chamber Summons dated 1st February, 2023 was filed in violation of the doctrine of exhaustion encapsulated in the provisions of the Fair Administrative Action Act, 2015.
46.Section 9(2) of the Act provides that;(2)The High Court or a Subordinate Court under Sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section 2 have been exhausted, direct the applicant shall first exhaust such remedy before instituting proceedings under Sub-section (1).(4)Notwithstanding sub-section (3), the High Court or a Subordinate Court may, in exceptional circumstances and on application by the applicant exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
47.It is common ground that the Respondent/Applicant’s employment was terminated by the 2nd Respondent on 19th January, 2023 allegedly for gross-misconduct and was accorded 6 weeks to appeal but did not.
48.The Chamber summons by the Respondent was filed on 2nd February, 2023 long before the 6 weeks period had lapsed.
49.It is unclear to the court why the Respondent did not appeal for purposes of the record and demonstrate his wish to remain in employment notwithstanding any misgivings he had on the process employed by the Respondent.
50.The court is in agreement with the applicant counsel’s submission that the Respondent tendered no evidence to demonstrate that the 2nd Respondent was incapable of forming the necessary committee stipulated in Section 12.14 of the Human Resource Instruments.
51.Had the Respondent filed an appeal, it would have been incumbent on the applicants to respond or explain the challenges it was facing, if any. Armed with the applicant’s response, or lack of it, the Respondents case would have been different.
52.As correctly submitted by the Applicant’s counsel, Section 9(2) of the Fair Administrative Action Act, 2015 is couched in mandatory terms that the internal mechanisms for appeal and review must be exhausted as held by Mativo J. in Krystalline Salt Ltd v Kenya Revenue Authority  eKLR that;
53.In addition, the learned judge held that “the applicant must first apply to the court and demonstrate the existence of exceptional circumstances.”
54.The Respondent herein did not make any application or plead that his case fell within the exceptions envisioned by Section 9(4) of the Fair Administrative Action Act, 2015.
55.Neither the Supporting Affidavit sworn by the Respondent on 1st February, 2023 nor the statement on record of even date make reference to the exceptional circumstances under Section 9(4) of the Fair Administrative Action Act, 2015.
56.Evidently, the Respondent did not comply with the provisions of Section 9(4) of the Act as regards the burden of proof and the attendant application.
57.Significantly, Section 9(4) of the Fair Administrative Action Act, 2015 is couched in permissive terms as implied by the use of the term “may” which signifies judicial discretion.
58.While the applicant submitted that the Respondent had not established the exceptional circumstances to warrant exemption from the requirements of Section 9(2) of the Fair Administrative Action Act, 2015, owing to the absence of a formal application, the Respondent relied on the untested evidence he intends to rely to argue that;
59.Although it is common ground that the 2nd Respondent has had no Commissioners since January 2023, the Respondent adduced no evidence that the 2nd Respondent was facing any other challenges by 1st February, 2023 or it had indicated its inability to conclude the appeal within a reasonable time for the simple reason that the Respondent refused to file an appeal.
60.The Respondent relies on the sentiments of the court in Republic v Independent Electoral Boundaries Commission and others Ex Parte The National Super Alliance Kenya (NASA) (Supra) as follows;
61.Although the Respondent contends that the Disciplinary Committee was illegally constituted, he has not provided evidence as to the illegality or copies of minutes of the meeting or list of attendees.
62.Similarly, other than the right to be heard under Article 47 of the Constitution of Kenya, 2010 and the right to fair labour practices (Article 41), the Respondent has not cited any other Constitutional provision to justify a Judicial Review Application.
63.Having failed to appeal the decision of the Disciplinary Committee, the Respondent cannot at this stage be heard to say that the appellate process was flawed or ambiguous. Put differently, the Respondent did not test the waters to ascertain its depth.
64.The Respondent’s submission and averment that it was unclear as to whether one had to appeal then go for a review or review and appeal cannot avail the Respondent as the dismissal letter dated 19th January, 2022 was explicit that he had the right to appeal the decision of the Commission within 6 weeks but did not nor did he apply for a review of the decision.
65.Similarly, the averment that he did not appeal because there was no panel to hear the appeal is unsustainable as he was unaware of the duration it would take to appoint new Commissioners and could not testify as to how the appeal would be dealt with and by whom.
66.The case for exceptional circumstances would have been much stronger if he had appealed the decision and had no response or had a response with no time frame on when the appeal would be heard and determined.
67.The court cannot at this juncture fault the process as the Respondents evidence has not been tested.
68.This would have been a good case for the court to hold that the provisions of Section 9(4) of the Fair Administrative Action Act, 2015 applied on the ground that the Respondent had no Commissioners and thus no one to hear and determine the appeal.
69.In this case, the Respondent has no pending appeal and thus did not comply with the requirements of Section 9(2) of the Act. However, in light of the prevailing circumstances, it would be unproductive to require the Respondent to file an appeal as the prescribed duration has already lapsed and he knowingly refused to do so.
70.The foregoing reasoning finds support in the Court of Appeal decision in Geoffrey Muthinja & another v Samuel Muguna Henry and 1756 others where the court expressed itself as follows;
71.These sentiments apply on all fours to the circumstances of the instant case.
72.Having so found, I will now proceed to determine whether the applicant has established a case for a review, variation and/or setting aside of the order granted on 7th February, 2023 or stay the same.
73.Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 provide for review of decrees or orders made by the court.
74.Rule 33 provides;1.A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgement or ruling –a.. . .b.on account of some mistake or error apparent on the face of the record;c.. . .d.for any other sufficient reason.
75.According to the applicant, the order granted on 7th February, 2023 was made pursuant to mistake and/or error of law that is apparent on the face of the record, in that the Respondent had not exhausted all internal dispute resolution mechanisms as the court has found.
76.That the court will be condoning an illegality if it does not review, vary and/or set aside the orders.
77.The phrase error apparent on the face of the record has been explained variously in countless decisions such as Edison Kanyabwera v Pastori Tumwebaze  UGSC 1 Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau  eKLR.In the latter case, the court stated:-
78.The most authoritative explanation of the phrase “error apparent on the face of the record” was given by the Court of Appeal in Muyodi v Industrial and Commercial Development Corporation & another  1 EA 243, as follows;
79.Having found that the Respondent did not complete the appellate or review process by way of filing an appeal within 6 weeks as directed, the court is in agreement with the applicant’s submission that the order made on 7th February, 2023 ought to be reviewed in light of an error apparent on the face of the record and the most efficacious review mechanism is setting aside of the order in its entirely.
80.The foregoing finding and holding disposes of the issue of stay of the order dated 7th February, 2023.
81.Needless to emphasis, the gravamen of the Respondent’s case is dismissal from employment which he alleges was marred by illegalities and irregularities including non-compliance with the 2nd Respondent’s Human Resource and Administration Policies and Procedures Manual among other allegations.
82.These are contested factual issues which require canvassing by evidence.
83.In Republic v Commissioner of Domestic Taxes Ex Parte Fluer Investments Ltd  eKLR, Mativo J. (as he then was) stated as follows;
84.Similarly, in Republic v Attorney General & 4 others Ex parte Diamond Hashim Lalji and Ahmed Hasham Lalji  eKLR, it was held inter alia;
85.In essence, the Respondent is seeking for orders which guarantee reinstatement to employment or dismissal from employment on disputed facts and the evidence has not been tested.
86.The court is not persuaded that the applicant’s invitation is judicious and prefers that the parties proceed under another avenue, through a claim as the dismissal and the alleged violation of rights are remediable through a claim.
87.In the end, the court is satisfied that the applicant’s Notice of Motion and Preliminary Objection dated 17th March, 2023 are merited and the following orders commend themselves;a. An order be and is hereby issued setting aside the order granted by this court on 7th February, 2023.b. The Chamber Summons Application dated 1st February, 2023 was filed in violation of the provisions of Section 9(4) of the Fair Administrative Action Act, 2015.c. The Chamber Summons dated 1st February, 2023 is unsustainable and is accordingly struck out with directions that the suit be instituted as a claim.d. There shall be no orders as to costs.It is so ordered.