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ELRCDismissedCause No 11 of 2019· [2019] KEELRC 2605 (KLR)

Julius Singoei v Cabinet Secretary Ministry of Education & 2 others [2019] KEELRC 2605 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret (styled High Court of Kenya at Eldoret)
5 December 2019
3,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a challenge to Bomet University College leadership appointments, confirming that University Councils, not the Cabinet Secretary, now appoint principals under Kenyan law.

What this practically means

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Executive summary

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The petitioner challenged the appointment of the three interested parties as Principal and Deputy Principals of Bomet University College, contending that the Cabinet Secretary for Education usurped a power vested by section 35(1)(v) of the Universities Act and paragraph 8 and 9 of the Bomet University College Order (Legal Notice No. 145 of 2017) in the University Council acting in consultation with the Cabinet Secretary after a PSC-conducted competitive process, and that the failure to advertise the vacancies in print media breached Articles 10 and 47 of the Constitution and the Fair Administrative Actions Act. The interested parties and the Cabinet Secretary responded that the interviews were properly conducted by the Public Service Commission under section 35(1)(v) as amended by the Statute Law (Miscellaneous Amendment) Act, 2018, and that the Council subsequently confirmed the appointments on 6th September 2019. The court recalled its ruling of 3rd October 2019 staying the appointments, acknowledging that the part faulting the Council's appointments was made per incuriam of the 2018 amendment. The court held that two sets of appointment letters existed; those signed by the Council Chair on 9th September 2019 were valid under the amended law, while the earlier Cabinet Secretary letters of 20th and 21st August 2019 were of no legal effect. Online advertisement was lawful given the e-government policy, and the petitioners showed no exclusion of qualified candidates. Applying Anarita Karimi Njeri v R, the court held the petition did not raise constitutional questions and should have been pursued by judicial review under the Universities Act. The petition was dismissed with no order as to costs, being public interest litigation.

Key legal issues

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01

Proper appointing authority for Principal and Deputy Principals of a constituent university college

Holding

Following the Statute Law (Miscellaneous Amendment) Act, 2018 (in force January 2019), the power to appoint vested in the University Council in consultation with the Cabinet Secretary after a competitive selection process conducted by the PSC; the Council's appointment letters of 9th September 2019 were the valid ones, and the earlier Cabinet Secretary letters of 20th/21st August 2019 were of no legal effect

Reasoning

The 2018 amendment to section 35(1)(v) of the Universities Act transferred the appointment power from the Cabinet Secretary to University Councils, acting in consultation with the Cabinet Secretary after PSC-conducted competitive selection. Two sets of appointment letters existed; the later set signed by the Council Chair conformed to the amended law, while the earlier Cabinet Secretary letters were issued without proper appreciation of the amended law.

p. 5
02

Mode of advertisement of the vacancies

Holding

Online advertisement on the PSC portal was lawful; the court took judicial notice of the e-government policy and the petitioners failed to show qualified persons were excluded

Reasoning

The advertisement was placed on the PSC website and twenty-seven candidates were shortlisted. The court took judicial notice of the e-government policy favouring digitisation of government processes. The petitioners did not demonstrate that the online method excluded a significant number of qualified persons, so no violation of the Constitution was established.

p. 4
03

Whether the petition met the constitutional threshold

Holding

The petition failed to demonstrate violations of Articles 2(1) and 10 and should have been brought as a judicial review application under the Universities Act

Reasoning

Citing Anarita Karimi Njeri v R, the court held that the petitioners did not succinctly demonstrate how Articles 2(1) and 10 were violated. The alleged infractions had been addressed by the 2018 statutory amendment, and any remaining grievances lay within the Universities Act and were amenable to judicial review rather than a constitutional petition.

p. 5

Legal principles established

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  • Constitutional petitions must specifically cite the constitutional provisions violated with particulars of the violation (Anarita Karimi Njeri threshold)
  • Alleged procedural infirmities in statutory appointment processes that do not raise constitutional issues should be pursued by way of judicial review under the parent statute
  • Online advertisement of public vacancies is permissible given the e-government policy; failure to advertise in print media is not a constitutional violation absent demonstration that qualified persons were excluded

Court orders

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  1. 1.The petition is dismissed
  2. 2.There will be no order as to costs (public interest litigation)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(1)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 234(2)(j)
  • Universities ActSection 35(1)(v)
  • Bomet University College OrderLegal Notice No. 145 of 2017, paragraphs 3(1), 8(1), 8(4), 9(1)
  • Statute Law (Miscellaneous Amendment) Act2018 amendments to section 35(1)(v), in force 4th January 2019
  • Fair Administrative Actions Act2015

Cases cited (1)

  • Anerita Karimi Njeri -v- R
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging breach of Articles 2(1), 10 and 47); Fair Administrative Actions Act, 2015

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, "Julius Singoei v Cabinet Secretary Ministry of Education & 2 others [2019] KEELRC 2605 (KLR)", Case Analysis (2019). Cause No 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2605/eng@2019-12-05

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