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ELRCDismissedPetition No. 5 of 2016 consolidated with Petition No. 11 of 2016· [2017] KEELRC 1950 (KLR)

Okiya Omtatah Okoiti & another v Cabinet Secretary Ministry of Education & 5 others [2017] KEELRC 1950 (KLR)

Employment and Labour Relations Court
2 March 2017
MNMathews Nderi Nduma
2,940 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 and Labour Relations Court dismissed petitions challenging the Cabinet Secretary's recruitment of public university council members, confirming the process was lawful and competitive.

What this practically means

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Executive summary

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Two petitions - one by Okiya Omtata and one by Joshua Kiptoo, consolidated for hearing - challenged advertisements published in January 2016 inviting applications for chairpersons and members of governing councils of public universities and constituent colleges. The petitioners argued that the Cabinet Secretary's recruitment process was opaque, contravened the court's 2014 judgment in Joseph Mutuura Mbeeria, and violated Article 47 of the Constitution and the Fair Administrative Action Act because serving council members, particularly of the University of Nairobi, were not given prior notice, a hearing, or a right of review. They sought declarations of nullity, quashing of the adverts, and mandamus. The Attorney General raised a preliminary objection on jurisdiction which Mbaru J dismissed in November 2016; no replying affidavit was filed, so the facts stood uncontroverted, though the court stressed reliefs still required sound legal foundation. The court framed three issues. It held that the Mbeeria decision permitted reconstitution of any existing council whose term had not expired, and that this was not retroactive application of the law. It found no violation of constitutional rights: the Universities Act does not separate recruitment from appointment, both being vested in the Cabinet Secretary, and the petitioners failed to show ultra vires conduct or breach of any named Article. The court observed obiter that legislation allowing the Public Service Commission to conduct recruitment might be prudent. The consolidated petitions were dismissed with no order as to costs.

Key legal issues

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01

Scope of the Mbeeria decision

Holding

Mbeeria did not mandate reconstitution of all university councils before expiry of their terms, but any existing council whose term had not expired was subject to reconstitution under the new constitutional dispensation.

Reasoning

The court found the 2014 decision settled the legal position and had not been set aside on appeal. It interpreted the law as it stood since 2010, so applying it to existing councils was not retroactive. Only councils constituted before the 2010 Constitution took effect could survive its effect.

p. 6
02

Whether the recruitment process violated constitutional rights / fair administrative action

Holding

No violation was established. The Cabinet Secretary was merely regularising appointments, the advertisement promised an open and competitive process, and the facts alleged were uncontroverted but unsupported by sound legal foundation for the reliefs sought.

Reasoning

The Universities Act does not separate recruitment from appointment, and the ex-officio member nominated from the Ministry does not create a conflict of interest. The petitioners did not show ultra vires conduct or breach of any named Article, so Article 47/Fair Administrative Action Act claims failed.

p. 6

Legal principles established

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  • Where the statute vests appointment of university council members in the Cabinet Secretary, the appointment process (recruitment) is likewise vested in the Cabinet Secretary absent a contrary statutory provision.
  • Reconstitution of university councils under the 2010 Constitution is not retrospective application of the law.

Court orders

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  1. 1.The consolidated petitions were dismissed in their entirety with no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19(1), 19(2)(a) & (c), 19(3)(a), 20(1), 23(1), 27, 47, 162(2), 165, 232
  • Universities ActNo. 42 of 2012, sections 3(2)(f), 31(1)(b), 35, 36(1)(a) & (d)
  • Fair Administrative Action Actsections 4(3)(b), 4(3)(c), 4(3)(a)

Cases cited (1)

  • Joseph Mutuura Mbeeria & another v Cabinet Secretary for Education, Science & Technology & 2 others
    [2014] eKLR (Petition No. 33 of 2013)
Jurisdiction invoked
Article 23(1) of the Constitution read together with Articles 162(2) and 165

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, "Okiya Omtatah Okoiti & another v Cabinet Secretary Ministry of Education & 5 others [2017] KEELRC 1950 (KLR)", Case Analysis (2017). Petition No. 5 of 2016 consolidated with Petition No. 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1950/eng@2017-03-02

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