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ELRCDismissedPetition No 71 of 2018· [2019] KEELRC 986 (KLR)

Wilfrida Arnodah Itolongo v Attorney General & 3 others [2019] KEELRC 986 (KLR)

High Court of Kenya
26 July 2019
MOMaureen Onyango
3,252 words in judgment
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The bottom line

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Kenya's High Court upheld Kenyatta University's reappointment of its Chancellor, ruling that competitive recruitment rules apply to fresh appointments, not reappointments.

What this practically means

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Executive summary

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The petitioner, a lecturer and alumna of Kenyatta University, challenged the reappointment of Dr. Benson Wairegi as Chancellor for a second term. She alleged that the process bypassed the Second Schedule of the Universities Act, which prescribes competitive procedures for appointing a Chancellor, and violated Articles 10 and 232 of the Constitution on transparency, inclusivity and public service values. She sought declarations that the Second Schedule should have applied, a declaration that the reappointment was invalid, and orders of prohibition and certiorari. The respondents, through a replying affidavit by Prof. Nelson Wawire, maintained that the reappointment was done under section 38(2) of the Universities Act, that the Second Schedule does not govern reappointment, and that the petition failed the Anarita Karimi Njeru precision threshold. The court framed three issues: whether the petition met the constitutional petition threshold, whether the respondents violated the Constitution, and whether the Second Schedule applied to reappointment. The court held that the petition was pleaded with sufficient precision, but found that the Universities Act, the University Charter and the Statutes are silent on reappointment procedure, and that following Wilfrida Itolondo, competitive recruitment does not apply to a reappointment. The Senate considered Dr. Wairegi's performance and the Alumni concurred; the petitioner participated and voted against but her objection did not establish a rights violation. The court dismissed the petition with each party bearing its own costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold of precision

Holding

The petition satisfied the threshold, as it disclosed the constitutional provisions violated and the manner of infringement

Reasoning

The court restated the Anarita Karimi Njeru rule as emphasized in Mumo Matemo, then examined the petitioner's pleading. The petitioner cited Articles 10 and 232 on inclusiveness and non-discrimination and stated how they were violated. The court found the petition disclosed the violations with sufficient precision.

p. 5
02

Whether the Second Schedule of the Universities Act applies to reappointment of a Chancellor

Holding

It does not; reappointment is not a fresh appointment and no instrument prescribes a reappointment procedure

Reasoning

The court examined the Second Schedule of the Universities Act, the Kenyatta University Charter and the University Statutes, noting none prescribes a procedure for reappointment though all allow a second term. Following Wilfrida Itolondo, competitive recruitment does not arise on reappointment. The Senate considered the incumbent's performance and recommended reappointment, which the Alumni concurred with.

p. 5
03

Whether the petitioner's constitutional rights were violated by the reappointment process

Holding

No violation; the respondents complied with Articles 10 and 232 and the petitioner participated in the process

Reasoning

The petitioner attended the Alumni meeting, voted, and was the only dissenting voice. The court held that her objection did not amount to a violation of her rights, and that the process was transparent, accountable and inclusive, involving the Senate and the Alumni as required.

p. 5

Legal principles established

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  • Reappointment of a Chancellor, being not a fresh recruitment, does not attract the competitive recruitment procedure in the Second Schedule of the Universities Act
  • A constitutional petitioner must plead with reasonable precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru principle)

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 10, 22, 23, 27, 35, 47, 48, 50, 73, 159, 160, 165, 232, 258, 259
  • Universities ActSection 38(2), section 38(4), Second Schedule
  • Interpretation and General Provisions ActSection 51

Cases cited (5)

  • Anarita Karimi Njeru v Republic
    (1979) 1 KLR 154
  • Meme v Republic and Another
    [2004] 1 KLR 637
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    [2014] eKLR
  • Mutuura Mberia & Another v Cabinet Secretary Education Science and Technology & 2 Others
    (2014) eKLR
  • Wilfrida Itolondo & 4 Others v President and 7 Others
    (2015) eKLR, Civil Appeal No. 120 of 2014
Jurisdiction invoked
Articles 22, 23, 165 and 258 of the Constitution of Kenya 2010

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, "Wilfrida Arnodah Itolongo v Attorney General & 3 others [2019] KEELRC 986 (KLR)", Case Analysis (2019). Petition No 71 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/986/eng@2019-07-26

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