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ELRCAllowedPetition No 47 of 2019· [2019] KEELRC 677 (KLR)

Okiya Omtatah Okoiti v Cabinet Secretary, Ministry of Education, Science and Technology & another; Council of University of Nairobi & 7 others (Interested Parties) [2019] KEELRC 677 (KLR)

High Court of Kenya
7 October 2019
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court invalidated the Education CS's appointment of University of Nairobi deputy vice-chancellors who were not recommended by the university's Council.

What this practically means

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Executive summary

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The Petitioner challenged the Cabinet Secretary for Education's 15 January 2019 appointment of the 2nd to 4th Interested Parties as Deputy Vice-Chancellors of the University of Nairobi, persons not recommended by the University Council, alleging violations of Articles 10, 27, 35, 47 and 73 and of the Universities Act, 2012. On 10 January 2019 the Council had recommended the 5th to 8th Interested Parties for the four DVC positions; the CS, after convening a Tenure Review Committee, appointed different persons the same day on which she notified them. The Council objected, sought a meeting and the Attorney General's opinion, and when these were not forthcoming the Petition was filed. The Court condensed the issues into locus standi and whether the CS acted ultra vires. On standing, the Court held that Article 22 expanded the doctrine and that recruitment to senior public university offices implicates national values and public service principles, so the Petitioner met the Articles 22 and 258 threshold. On the merits, applying two prior High Court decisions on the analogous section 39(1)(a), the Court held the CS had no power to appoint anyone not recommended by the Council; at most she could have raised reservations, sought reconsideration or referred the list back under the relied-upon Circular, or sought judicial interpretation. Her departure from the recommendations was ultra vires and unconstitutional, and the Circular could not assist the Respondents. The Court declared the CS's actions null and void, quashed the appointment letters by certiorari, ordered mandamus compelling appointment letters to the recommended candidates, and awarded the Petitioner costs on half scale against the 1st Respondent. The Interested Parties did not participate despite service.

Key legal issues

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01

Locus standi of the Petitioner

Holding

The Petitioner had standing; the dispute engaged public interest, not private law.

Reasoning

Article 22(1) and (2) expanded standing beyond the traditional doctrine where constitutional rights are alleged to be violated. Deputy Vice-Chancellors hold public offices subject to Chapter 13 values of fair competition, merit and transparency. Recruitment to the higher echelons of public universities implicates national values and public service principles, so the questions transcend the private interests of the appointees and meet the Articles 22 and 258 threshold.

p. 3
02

Whether the Cabinet Secretary acted ultra vires in appointing persons not recommended by the Council

Holding

Yes. The CS could not depart from the Council's recommendations; her appointments were ultra vires and unconstitutional.

Reasoning

Under section 35(1)(a)(v) of the Universities Act, 2012, the CS appoints on the Council's recommendation. Relying on prior High Court decisions interpreting the analogous section 39(1)(a) with section 51 of the Interpretation and General Provisions Act, the Court held the CS lacks power to appoint without a recommendation. The CS's options were to raise reservations, seek reconsideration, refer the list back under the Circular, or seek judicial interpretation - not to appoint others.

p. 4

Legal principles established

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  • A Cabinet Secretary appointed under the Universities Act may not appoint a Deputy Vice-Chancellor outside the list of candidates recommended by the University Council.
  • An appointing authority that believes recommendations fail constitutional requirements must refer them back or seek judicial interpretation, not act ultra vires.
  • Public-interest litigation on recruitment to public university offices satisfies the standing threshold in Articles 22 and 258.

Court orders

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  1. 1.A declaration that the actions of the 1st Respondent in not acting on the recommendations of the 1st Interested Party violated the Constitution and are null and void
  2. 2.An order of certiorari quashing the 1st Respondent's letters referenced REF: MHEST/CONF/2/1/VOL. 115 dated 15 January 2019 appointing the 2nd, 3rd and 4th Interested Parties as Deputy Vice-Chancellors of the University of Nairobi
  3. 3.An order of mandamus compelling the 1st Respondent to issue appointment letters to the individuals recommended by the 1st Interested Party who emerged top in the competitive interviews
  4. 4.The 1st Respondent to pay the Petitioner costs on half scale

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 258, 27, 35, 47, 73; Chapter 13
  • Universities Actsection 35(1)(a)(v); section 39(1)(a) (considered in prior decisions)
  • Interpretation and General Provisions Actsection 51

Cases cited (2)

  • R v Cabinet Secretary, Ministry of Education, Science and Technology & 3 Ors ex parte Njomo John
    (2017) eKLR
  • Josphat K.Z. Mwatelah v Technical University of Mombasa Council & 2 Ors
    (2017) eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution (enforcement of the Bill of Rights and standing); section 35(1)(a)(v) of the Universities Act, 2012

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, "Okiya Omtatah Okoiti v Cabinet Secretary, Ministry of Education, Science and Technology & another; Council of University of Nairobi & 7 others (Interested Parties) [2019] KEELRC 677 (KLR)", Case Analysis (2019). Petition No 47 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/677/eng@2019-10-07

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