Okiya Omtatah Okoiti v Kenyatta University Council & 2 others [2016] KEELRC 1604 (KLR)
The bottom line
#A Kenyan court kept Kenyatta University's Council in the Vice Chancellor recruitment case, ordered disclosure of the outgoing VC's contract, and maintained the freeze on hiring.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent (Kenyatta University Council) can be struck out of the proceedings
The 1st Respondent cannot be struck out; it remains a party because orders were made against it and its subsisting obligations survive the amendment to the Universities Act
The Court relied on Sections 23(3)(c) and 25 of the Interpretation and General Provisions Act (Cap 2), which preserve accrued rights and obligations notwithstanding repeal or amendment, and held that giving orders against a party while simultaneously removing it from the proceedings would be prejudicial and untenable.
Whether the 1st Respondent's and 1st Interested Party's applications constitute an abuse of process warranting striking out
The concurrent stay applications in this Court and the Court of Appeal amount to an abuse of process, but the applications will not be struck out because the Court of Appeal directed that this Court's stay orders remain in force unless set aside or varied by this Court
The Court of Appeal in C.A No. 310 of 2015 recorded that the applications essentially sought stay of the interlocutory orders made on 18th December 2015 and that those stay orders 'shall remain inforce unless set aside or varied by the Employment and Labour Relations Court'. That direction obliged this Court to hear and determine the applications rather than strike them out.
Whether the 1st Interested Party's employment contract should be produced in Court
Yes; the contract is necessary for proper determination of the pending applications and the 1st Interested Party was ordered to produce it within three days
The 1st Interested Party averred that the orders of 18/12/2015 interfered with and rewrote her contract, and the Petitioner could not respond without seeing it. The Court found it could not test that contention without the document, so production was necessary for a proper determination of the pending applications.
Whether the Respondents should be prohibited from recruiting a new Vice Chancellor pending regulations under Section 39(1A)
The interim prohibition already granted on 18.12.2015 remains in force; no further orders will be made on that issue until the Petition is determined
The Court noted it had already stopped recruitment of a new Vice Chancellor on 18.12.2015 pending hearing and determination of the Petition. It held that orders on recruitment can only be made upon conclusion of the Petition, so no new prohibition orders were issued in this ruling.
Legal principles established
#- An obligation already placed on a party is not washed away by an amendment to the law; the repeal or amendment of a written law does not affect rights, privileges, obligations or liabilities already accrued
- A court of law cannot rewrite a contract between the parties; parties are bound by the contract's terms unless coercion, fraud or undue influence are pleaded and proved
- Simultaneously seeking the same stay orders in two courts constitutes an abuse of the court process
Court orders
#- 1.The application to strike out the 1st Respondent from the proceedings is dismissed; the 1st Respondent remains a party
- 2.The applications by the 1st Respondent and 1st Interested Party shall not be struck out but shall remain and be heard
- 3.The 1st Interested Party to produce in Court a copy of her employment contract within three (3) days
- 4.The interim order stopping recruitment of a new Vice Chancellor made on 18.12.2015 remains in force; no other orders on that issue until the Petition is determined
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court, Petition No. 89 of 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Kenyatta University Council & 2 others [2016] KEELRC 1604 (KLR)", Case Analysis (2016). Petition No. 89 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1604/eng@2016-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.