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Court of AppealPartially AllowedApplication dated 14th November 2024 (arising from ELRC Pet. No. E014 of 2024)· [2025] KECA 1190 (KLR)

Prof Mary O Abukutsa Onyango v Prof Manyasa J.o. Nandi & 3 others

Court of Appeal of Kenya
4 July 2025
1,580 words in judgment
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The bottom line

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Kenya's Court of Appeal froze the Kaimosi Friends University vice-chancellor appointment, leaving neither candidate in office while the appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Tuiyott and Nyamweya, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules by Prof. Mary Abukutsa Onyango seeking to stay execution of a judgment of the Employment and Labour Relations Court at Nairobi (Nduma Nderi J.) delivered on 19th December 2024 in ELRC Pet. No. E014 of 2024. The ELRC had declared unlawful the recommendation of the applicant for appointment as Vice Chancellor of Kaimosi Friends University, sustained the selection of the 1st respondent, Prof. Manyasi Nandi, and issued mandamus and prohibition orders compelling the Council to appoint the petitioner. The applicant argued that her intended appeal was arguable because the trial judge disregarded the Cabinet Secretary's statutory role under section 39(1) of the Universities Act, 2012, and failed to consider her cross-petition. The 1st respondent countered that the Cabinet Secretary acted ultra vires in rejecting the Council's recommendation of the highest-scoring candidate. Applying the settled two-limb test from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the role of the Cabinet Secretary in vice-chancellor appointments to be an arguable point, and held that preserving the status quo served the public interest, since neither candidate had taken office and an acting Vice-Chancellor was serving. The Court ordered maintenance of the status quo, conditional on the applicant filing her Record and Memorandum of Appeal within thirty days, directed expedited case management, and ordered that the costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal on the role of the Cabinet Secretary in appointing a Vice Chancellor is arguable

Holding

The Court found the question of the Cabinet Secretary's role under the Universities Act, 2012 to be an arguable point fit for consideration on appeal

Reasoning

Both the applicant and the 1st respondent raised the nature and extent of the Cabinet Secretary's participation in the appointment of a vice chancellor of a public university under the Universities Act, 2012. The Court held this was sufficient to satisfy the arguability limb, since arguability requires only a bona fide issue worthy of consideration, not one that must succeed.

p. 3
02

Whether the intended appeal would be rendered nugatory absent a stay

Holding

The nugatory limb was satisfied in the public interest, as neither candidate had taken office and an acting Vice-Chancellor was in place; maintaining the status quo preserved the subject matter of the appeal

Reasoning

The Court noted that neither the applicant nor the 1st respondent had yet taken office, an acting Vice-Chancellor being in place. It considered it in the public interest that there be no lacuna in the office of Vice Chancellor of Kaimosi Friends University and that the issues be determined with dispatch, justifying preservation of the status quo rather than execution of the judgment.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory unless a stay is granted; both limbs must be satisfied
  • The requirement of arguability is met if the intended appeal raises a bona fide issue worthy of consideration by the Court
  • An appeal will be rendered nugatory where the effect of not granting a stay is likely to be irreversible, or where damages will not reasonably compensate the aggrieved party

Court orders

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  1. 1.The status quo currently obtaining as regards the office of the Vice Chancellor of Kaimosi Friends University shall be maintained pending the hearing and determination of the applicant's intended appeal, and neither the applicant nor 1st respondent shall be appointed as Vice Chancellor during that period
  2. 2.The applicant shall file and serve the Record and Memorandum of Appeal within 30 days, failing which the status quo order shall automatically lapse
  3. 3.The Deputy Registrar shall, upon filing of the Record and Memorandum of Appeal, list the appeal for case management and expedite the hearing on a priority basis
  4. 4.The costs of the application dated 14th November 2024 shall abide the outcome of the appeal
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Pet. No. E014 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Prof Mary O Abukutsa Onyango v Prof Manyasa J.o. Nandi & 3 others", Case Analysis (2025). Application dated 14th November 2024 (arising from ELRC Pet. No. E014 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1190/eng@2025-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.