Background
Last month’s court ruling in Kharey v Northern Water Works Development Agency & another [2024] eKLR saw the exhaustion doctrine once again unearthed in another attempt to determine whether an employee ought to explore in-house remedies before involving the courts.
The Doctrine of Exhaustion, requires that a concerned party diligently pursue all available means of redress before turning to the courts for intervention. This position was aptly highlighted by the 5 judge bench in the court of Appeal in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) [2020] eKLR averred
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine 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 mechanisms in place for resolution outside the Courts…”
Risks of the Doctrine
Though the doctrine’s core intention is to declutter the courts by ensuring that parties genuinely seek other avenues to resolve their disputes, it risks victimizing individuals with legitimate issues that can not be addressed via the available internal mechanisms. It also bars individuals from accessing speedy justice where their efforts to seek internal redress could be hindered by malice and delay.
This unfortunate scenario was observed in Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR where the Kenya Revenue Authority demanded a huge sum under the guise of unpaid taxes, despite previously confirming that the Appellant had settled all their dues. Here, the court of Appeal deduced that no internal resolution mechanism would be justly administered by the defendant whose conduct was malicious and biased.
Furthermore, the courts have held that, even where there exists clear guidelines for internal dispute resolution, one can still apply to the High Court to determine whether constitutional rights have been violated. Thus, where an employer’s conduct violates sensitive constitutional rights of their employees like the right to fair hearing, one can seek the audience of the courts to protect and enforce their rights.
Ultimately, like all legal principles, the doctrine of exhaustion has its exceptions. Blindly applying a one size fits all approach in its enforcement will not only defeat justice but also foment tyranny and chaos. A case by case analysis at to whether the principle of exhaustion should apply, should thus be the norm, and not the exception.
