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ELRCAllowedPetition dated 14th August 2013· [2014] KEELRC 281 (KLR)

Joseph Mutuura Mbeeria & another v Cabinet Secretary for Education, Science & Technology & 2 others [2014] KEELRC 281 (KLR)

Employment and Labour Relations Court
19 September 2014
MNMathews N. Nduma
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cancelled JKUAT's Council appointments because the Cabinet Secretary filled the positions without public advertisement, shortlisting or interviews.

What this practically means

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Executive summary

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The Petitioners, lecturers at JKUAT and officials of the UASU JKUAT Chapter, challenged the appointment of six members of the JKUAT University Council by the Cabinet Secretary for Education, Science and Technology via Gazette Notice No. 798 of 25th January 2013, alleging the appointments bypassed the open process required by Section 36(1)(d) of the Universities Act, 2012 and violated Articles 10 and 232 of the Constitution. They sought a declaration that the Council was not properly constituted, quashing of the Gazette Notice, and mandamus compelling a lawful recruitment process. Neither the Cabinet Secretary nor the Attorney General filed papers in opposition; the Attorney General instead filed submissions fully supporting the Petition. The only opposition came from a replying affidavit by Ambassador Stephen Loyatum, himself an appointee, containing generalized allegations with no annexures or documentary proof of advertisement, shortlisting or interviews. The Court accepted the Attorney General's submissions, holding that the Cabinet Secretary was bound by that advice, and that the minimum standards for such appointments are advertising, shortlisting and interviews. The Court declared the Council not properly constituted, quashed the Gazette Notice, ordered mandamus for a fresh recruitment process, directed that the orders take effect within 30 days without retroactive effect on the Interested Party's prior acts, and held the 1st Respondent and Interested Party jointly and severally liable for implementation and costs. The Court extended the minimum standards to Councils of all public universities and similar public service positions.

Key legal issues

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01

Whether the appointment of the JKUAT Council without advertisement, shortlisting and interviews violated Section 36(1)(d) of the Universities Act, 2012 and Articles 10 and 232 of the Constitution

Holding

The appointment was unlawful; the Cabinet Secretary was mandated to appoint five members of the Council through an open process, which was not done.

Reasoning

Section 36(1)(d) of the Universities Act requires five members of the Council to be appointed through an open process. No advertisement, shortlisting or interviews took place; there was a mere swapping of names. This violated Article 232 values of fair competition, merit, transparency and accountability, and Article 10 national values, as read with Section 3(2) of the Act requiring transparent governance systems.

p. 5
02

Evidential weight of an unopposed petition where the interested party's replying affidavit is uncorroborated

Holding

The replying affidavit of the interested party's council member contained only generalized bald allegations with no annexures, and the Attorney General's submissions supported the Petition.

Reasoning

The deponent was himself a beneficiary of the impugned appointment. He did not state that the positions were advertised, shortlisted or interviewed for. No documentary proof of applications or vetting was placed before the Court. Notably, the respondents filed no papers in opposition, and the Attorney General fully associated himself with the Petition, contradicting the Interested Party.

p. 4

Legal principles established

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  • The minimum standards for appointment of chairman and members of University Councils are advertising of positions, shortlisting, and interviews in accordance with Articles 10 and 232 of the Constitution and Section 36(1)(d) of the Universities Act, 2012.
  • These standards apply as minimum standards to appointments of Councils of all public universities and other similar public service positions.
  • The Cabinet Secretary is bound by the legal advice of the Hon. Attorney General.

Court orders

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  1. 1.Declaration that the University Council for JKUAT is not properly constituted
  2. 2.Quashing of Gazette Notice No. 798 published in Volume CXV No. 10 of the Kenya Gazette on 25th January 2013
  3. 3.Order of mandamus directing the 1st Respondent to commence the recruitment process of members of JKUAT Council in accordance with the law
  4. 4.Orders (a) and (b) to take effect within 30 days and not operate retroactively with respect to matters already done by the Interested Party
  5. 5.1st Respondent and the Interested Party jointly and severally held responsible for implementation of the judgment including payment of costs of the Petition to the Petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 47, 73, 156, 165, 232
  • Universities Act, 2012Section 36(1)(d); Section 3(2)
Jurisdiction invoked
Articles 10, 23, 47, 73, 165 and 232 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Mutuura Mbeeria & another v Cabinet Secretary for Education, Science & Technology & 2 others [2014] KEELRC 281 (KLR)", Case Analysis (2014). Petition dated 14th August 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/281/eng@2014-09-19

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