Egerton University Council v Republic

Egerton University is chartered under the Universities Act and is a body corporate employing staff under section 20(1)(a); the Council is a statutory organ under section 35. Though it would have been neater to sue the university, the impugned decision was that of the Council and had to be dealt with as such. The trial court had impliedly assumed jurisdiction without an express finding, and the Court declined to fault that approach on the sole ground of the Council's non-suiting.

The Vice Chancellorship is a statutory position whose appointment follows a statutory procedure under section 39(1) of the Universities Act. The appointment letters required the Vice Chancellor to report and be answerable to the Council on all matters, and implementing Council decisions was an express employment term. The impugned suspension letter itself referred to a Council resolution. The statutory foundation of the relationship elevated the dispute into public administrative action open to judicial review.

The letters of 26th October 2015 and 12th January 2016 stated the Vice Chancellor is responsible to the Council; the Cabinet Secretary's ministerial act of gazettement is not an appointment. The trial judge misdirected herself in holding that none of the Council's general powers extended to sending the Vice Chancellor on leave pending investigations, since one allegation was failure to implement Council decisions, an express employment term. Suspension pending independent investigation is an ordinary incident of employment.

Section 39(1) provides appointment by the Cabinet Secretary on the recommendation of the Council after competitive recruitment by the Council. The ministerial act of gazettement cannot be considered the appointment; sections 35(1)(a) and 39(1)(a) show the Council is charged with recruitment, determination of terms and conditions of service, and resultant appointment. The Cabinet Secretary's power to terminate arises, if at all, only on the Council's recommendation under the applicable Statute.

Counsel submitted the matter was academic as the ex parte applicant had vacated office. The Court acknowledged the merit of that argument but held that the position of Vice Chancellor still exists and courts should give direction for purposes of good governance and settling the issue. However, since the ex parte applicant had left employment, the Court saw no purpose in delving into the specific allegations against her.