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ELRCOtherPetition dated 29th January 2019 (together with Notice of Motion of even date)· [2019] KEELRC 28 (KLR)

Universities Academic Staff Union (UASU) (Kenyatta Universitychapter) v Kenyatta University Council & another; Prof. Fatuma Chege (Interested Party) [2019] KEELRC 28 (KLR)

Employment and Labour Relations Court of Kenya
11 December 2019
HWHellen Wasilwa
4,463 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 froze Kenyatta University's Deputy Vice-Chancellor appointment because the university could not show its recruitment process was open and transparent.

What this practically means

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Executive summary

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The Petitioner, a university staff union, filed a Petition and Notice of Motion dated 29 January 2019 challenging the recruitment and appointment of Prof. Fatuma Chege as Deputy Vice-Chancellor (Administration) of Kenyatta University. It alleged violations of Article 10 (rule of law, transparency and accountability), Articles 47, 27, 41(1), 73(2)(a), 232 and 259, claiming the recruitment was not transparent: names of applicants and shortlisted candidates were not published, nor the date, time and venue of interviews, and there was no stakeholder participation or regional balance. It sought interim orders of prohibition and conservatory orders staying the appointment and assumption of office, plus final declarations, certiorari-like orders and mandatory orders. The Respondents, through the affidavit of VC Prof. Paul Wainaina, maintained the process was transparent and competitive under the Universities Act, that the appointment had been made by the CS Education on 21 January 2019 and that the CS was not a party, rendering the Petition defective; they also invoked the Anarita Karimi Njeru precision threshold and argued the complaints were judicial review matters. The Interested Party, appointed substantively and already acting in the office, urged that the Petition was overtaken by events and that no prima facie case was shown, relying on Giella v Cassman Brown, Mrao and authorities against issuing orders in vain. The Court framed one issue: whether a prima facie case existed. Noting the Respondents had not denied the non-publication contentions, it found issues requiring clarification that could only be resolved in the main Petition, and confirmed the interim orders in force pending hearing and determination of the Petition, with costs reserved to the Petition.

Key legal issues

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01

Whether a prima facie case was established to justify interim orders

Holding

Yes; the non-denial of non-publication of applicants' and shortlisted candidates' names and interview particulars raised issues needing clarification, justifying confirmation of interim orders

Reasoning

The Court examined the averments and submissions. The Petitioner contended the recruitment was shrouded in mystery because names of applicants, shortlisted candidates and the interview date/time/venue were never published. The Respondents did not deny this. Without going into the Interested Party's qualifications, the Court found that, on the face of it, issues requiring clarification existed, and that these could only be resolved in the main Petition. To preserve the substratum of the Petition, interim orders were confirmed.

p. 9

Legal principles established

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  • Where uncontroverted material raises issues requiring clarification about the legality of a public recruitment process, a prima facie case exists warranting interim preservation orders pending the main petition

Court orders

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  1. 1.Interim orders in force confirmed pending hearing and determination of the Petition
  2. 2.Costs in the Petition (reserved to the Petition)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(a), 10(2)(c), 22, 27, 41(1), 47, 73(2)(a), 232(e), (f), (l)(d),(e),(f), 259(1) and (3); Chapter 6
  • Universities Act, 2012Section 35(1)(v)
  • Public Service ActSection 10

Cases cited (11)

  • Anarita Karimi Njeru v Republic (No. 1)
    [1979] 1 KLR 154
  • Thadayo Obanda v The University of Nairobi and the Cabinet Secretary Ministry of Education
    JR No. 506 of 2017
  • Tom Odoyo Oloo v The Hon. Attorney General, The Anti-Counterfeit Agency & 2 others
    JR No. 196 of 2015
  • Consumer Federation of Kenya (COFEK) v Attorney General & 2 others
    [2012] eKLR
  • Commissioner for Human Rights & Justice v Kenya Maritime Authority
    [2018] eKLR
  • Giella v Cassman Brown
    (1973) E.A 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003]
  • Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others
    [1994] eKLR
  • Nicholas Mahimu v Ndima Tea Factory Ltd & another
    [2009] eKLR
  • Mussolini Kithome v Attorney General & another
    [2016] eKLR
  • B v Attorney General
    [2004] 1 KLR 431
Jurisdiction invoked
Constitution of Kenya 2010, Article 22 (enforcement of Bill of Rights) as invoked by the Petitioner; petition filed under the Constitution (universities recruitment)

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, "Universities Academic Staff Union (UASU) (Kenyatta Universitychapter) v Kenyatta University Council & another; Prof. Fatuma Chege (Interested Party) [2019] KEELRC 28 (KLR)", Case Analysis (2019). Petition dated 29th January 2019 (together with Notice of Motion of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/28/eng@2019-12-11

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