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ELRCDismissedNot stated in judgment· [2019] KEELRC 1993 (KLR)

Republic v Egerton University Council; Ex- parte Applicant Rose Mwonya [2019] KEELRC 1993 (KLR)

Employment and Labour Relations Court
11 February 2019
1,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (Mbaru J) determines a Notice of Objection dated 9th November 2018 filed by Egerton University Council, the respondent in judicial review proceedings commenced by an ex parte applicant. The respondent argued that it is not a legal person capable of suing or being sued under the Universities Act, 2012, since only the University itself became a body corporate upon being granted a Charter on 1st March 2013, and that the proceedings and the leave granted on 19th September 2018 were therefore a nullity. The applicant countered that the Council, gazetted in 2017, is an administrator and quasi-judicial body amenable to judicial review under the Fair Administrative Action Act, 2015, having issued the impugned suspension letter dated 7th September 2018. The court held that the questions of whether the Council had mandate to issue the impugned letter and whether its decision was lawful and valid go to the merits of the Notice of Motion and cannot be resolved by way of preliminary objection. Relying on section 10 of the Fair Administrative Action Act, section 3 of the ELRC Act and Article 159 of the Constitution, the court found the objections without merit and dismissed them. The parties were directed to address the substance of the Motion, with each party bearing its own costs. The court also reminded parties of Rule 7 of the ELRC Procedure Rules, 2016 and, following Nicholas Mayieka and Gabriel Mutava, cautioned against bypassing statutory procedures through constitutional or judicial review routes.

Key legal issues

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01

Whether a university council lacking corporate status under the Universities Act can be sued in judicial review

Holding

The objection on capacity was rejected; the Council, as the entity that issued the impugned decision and an administrator under the Fair Administrative Action Act, is amenable to judicial review.

Reasoning

The court accepted that under section 20 of the Universities Act it is the University that became a body corporate, but held that the Council issued the impugned suspension letter and is an 'administrator' under section 2 of the Fair Administrative Action Act. Questions of whether the Council acted lawfully and within its mandate go to the merits of the Motion and cannot be determined by way of preliminary objection. Section 10 of the Fair Administrative Action Act and Article 159 eschew procedural technicalities.

p. 2
02

Correct procedure for raising employment and labour disputes

Holding

The court reminded parties of Rule 7 of the ELRC (Procedure) Rules, 2016 and cautioned against bypassing statutory procedures through constitutional or judicial review routes.

Reasoning

Relying on Nicholas Mayieka v Judicial Service Commission and the Court of Appeal in Gabriel Mutava v Managing Director Kenya Ports Authority, the court noted that where a clear procedure for redress is prescribed by statute it should be strictly followed, and the Constitution should not be turned into a thoroughfare for every common grievance. However, this did not defeat the applicant's judicial review proceedings at the objection stage.

p. 3

Legal principles established

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  • A party aggrieved by a decision of a university council has the right under Article 22(3) of the Constitution read with the Fair Administrative Action Act, 2015 to file judicial review proceedings.
  • Objections going to the legality and validity of the impugned decision cannot be resolved as a preliminary objection; they must be interrogated on the merits.
  • Section 10 of the Fair Administrative Action Act, 2015 eschews undue regard to procedural technicalities in judicial review applications.

Court orders

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  1. 1.The Notice of Objections/Objections made by the respondent are found without merit and are dismissed
  2. 2.The parties shall address the substance of the Notice of Motion before the court
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Universities Actsections 2, 15(2), 20, 21, 36(1), 63(1)
  • Fair Administrative Action Actsections 2, 7, 10
  • Law Reform Actsections 8 and 9
  • Civil Procedure RulesOrder 53
  • Employment and Labour Relations Court Actsection 3
  • Employment and Labour Relations Court (Procedure) RulesRule 7
  • Constitution of Kenya, 2010Articles 22(3), 23, 25, 41, 47, 50, 159

Cases cited (9)

  • George Omondi & another versus National Bank of Kenya Ltd & 2 others
    [2014] eKLR
  • Prof. Kiama Wangai versus Pamela Tsimbili & 7 others
    Civil Case No.304 of 2012
  • Grace Mwenda Munjuri versus Trustees of the Agricultural Society of Kenya
    Cause No.1317 of 2010
  • Trustees Chrisco Church Nakuru versus Samwel Kibowen Towett & 4 others
    [2017] eKLR
  • Kenyatta Universities Staff Union versus University Council of Maside Muliro University of Science and Technology & 2 Others
    [2018] eKLR
  • James Mwangi Nganga versus Kenyatta University Council & 4 others
    [2009] eKLR
  • R versus Electricity Commissioner ex parte Electricity Joint Committee
    (1942) 1 KB
  • Nicholas Mayieka & others versus Judicial Service Commission
    Petition No.260 of 2016
  • Gabriel Mutava & 2 others versus Managing Director Kenya Ports Authority & another
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court); Fair Administrative Action Act, 2015; Law Reform Act sections 8 and 9 and Order 53 of the Civil Procedure Rules

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, "Republic v Egerton University Council; Ex- parte Applicant Rose Mwonya [2019] KEELRC 1993 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1993/eng@2019-02-11

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