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ELRCDismissedNot stated in judgment (Petition filed 29 June 2017)· [2019] KEELRC 2210 (KLR)

Godfrey Mbiti Nguru v Cabinet Secretary, Ministry of Education & another [2019] KEELRC 2210 (KLR)

Employment and Labour Relations Court
22 February 2019
RSRadido Stephen
566 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 dismissed a professor's challenge to his revoked university council appointment, holding compliance with a court order overrides due process.

What this practically means

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Executive summary

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The Petitioner was appointed Chairman of the Council of the Technical University of Kenya by the Cabinet Secretary, Ministry of Education, Science and Technology, by letter dated 18 November 2015, gazetted on 11 November 2015, for a four-year term. On 24 November 2015 he was issued Terms and Conditions of Service. His appointment was nonetheless revoked by Gazette Notice No. 2351 of 14 March 2017. Aggrieved, he filed a petition on 29 June 2017 alleging that the revocation violated national values and principles, equality and freedom from discrimination, reputation, access to information, fair labour practices, fair administrative action, due process, and principles of the public service and leadership, seeking 23 orders and/or declarations. The 1st Respondent filed a replying affidavit sworn by James M. Kiburi; the 2nd Respondent entered appearance through Tongoi & Co. Advocates; neither filed submissions. Radido J dismissed the petition. The court found that the revocation - like the revocation of council members of several other public universities - was effected pursuant to court orders in Joseph Mutuura Mbeeria and Okiya Omtatah Okoiti, decisions the court came across while preparing judgment. Those decisions set out the law in rem, and the Petitioner's non-participation did not assist him. Since the revocation rested on a subsisting court order, there was no basis for requiring due process or natural justice. The court lamented the Attorney General's failure to file an answer or submissions. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the revocation of the Petitioner's appointment as Chairman of Council violated due process and natural justice

Holding

No violation; the revocation was effected pursuant to a subsisting court order in Joseph Mutuura Mbeeria and Okiya Omtatah Okoiti decisions, so due process was unnecessary

Reasoning

The court found the Cabinet Secretary's revocation of the appointment, like revocations across several public universities' councils, was done to comply with court orders which had not been overturned. Where compliance with a court order is the basis of an administrative action, the ordinary requirements of due process and natural justice have no application.

p. 2
02

Whether the in rem nature of the earlier decisions exempted the Petitioner from their effect

Holding

The decisions set out the law in rem and bound the Petitioner despite his not being a party

Reasoning

The court relied on Joseph Mutuura Mbeeria and Okiya Omtatah Okoiti, which it came across in preparing the judgment, as declaring the law governing revocation of university council appointments. A judgment in rem operates erga omnes, so the Petitioner could not escape its operation merely because he was not party to those proceedings.

p. 2

Legal principles established

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  • A judgment setting out the law in rem binds parties even where they were not party to the proceedings

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (2)

  • Joseph Mutuura Mbeeria & another v Cabinet Secretary for Education Science and Technology and another
    (2014) eKLR
  • Okiya Omtatah Okoiti & another v Cabinet Secretary Ministry of Education & 5 others
    (2017) eKLR
Jurisdiction invoked
Constitutional petition (not stated in the judgment; petition alleging violation of constitutional rights and values)

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, "Godfrey Mbiti Nguru v Cabinet Secretary, Ministry of Education & another [2019] KEELRC 2210 (KLR)", Case Analysis (2019). Not stated in judgment (Petition filed 29 June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2210/eng@2019-02-22

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