Republic v Egerton University Council; Ex- parte Applicant Rose Mwonya [2019] KEELRC 1993 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a university council lacking corporate status under the Universities Act can be sued in judicial review
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.
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.
Correct procedure for raising employment and labour disputes
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Objections/Objections made by the respondent are found without merit and are dismissed
- 2.The parties shall address the substance of the Notice of Motion before the court
- 3.Each party shall bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.