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ELRCPartially AllowedPetition No. 606 of 2019 (Nairobi ELRC)· [2020] KEELRC 328 (KLR)

Okiya Omtatah Okoiti v Public Service Commission & 3 others [2020] KEELRC 328 (KLR)

Employment and Labour Relations Court
16 October 2020
RSRadido Stephen
2,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed the Public Service Commission leads Vice-Chancellor recruitment, and Council members could sit in on interviews without a vote.

What this practically means

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Executive summary

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The Petitioner, a public interest litigant, petitioned the Employment and Labour Relations Court alleging that the Public Service Commission violated section 35(1)(a)(v) of the Universities Act by allowing two members of the Masinde Muliro University Council to participate in the recruitment interviews for the post of Vice-Chancellor, and that the non-renewal of the contract of the incumbent Vice-Chancellor, Prof Fredrick Otieno, breached constitutional and statutory fair labour and administrative action provisions. The Respondents defended the process, relying on section 12(2) of the Public Service Commission Act which permits co-option of persons with specialist knowledge, without a vote. The Court declined to consolidate the Petition with ELRC Cause No. 512 of 2019, holding the issues distinct. On the substantive conflict between section 35(1)(a)(v) (2018 amendment) and section 39(1)(a) (2015 amendment), the Court applied the doctrine of implied repeal, holding that the 2018 amendment prevails and assigns recruitment of Vice-Chancellors to the Public Service Commission. The Court found the co-opted Council members, having no vote, did not influence or undermine the Commission's independence, and the interview was not fatally defective. It observed the Petition partly advanced Prof Otieno's private interests and that the Petitioner failed to file submissions as directed. The Court issued two declaratory orders on statutory supremacy and legality of co-option, declined all other reliefs, and directed each party to bear its own costs.

Key legal issues

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01

Conflict between section 35(1)(a)(v) of the Universities Act (2018 amendment) and section 39(1)(a) (2015 amendment)

Holding

Section 35(1)(a)(v) supersedes and impliedly repeals section 39(1)(a) in respect of recruitment of Vice-Chancellors, Deputy Vice-Chancellors and Principals of Constituent Colleges

Reasoning

The Court applied the canon of statutory interpretation and the doctrine of implied repeal as set out in the authorities cited by the Respondents: a later statutory provision abrogates an inconsistent earlier one. Section 35(1)(a)(v), amended in 2018, assigns the recruitment of public university Vice-Chancellors to the Public Service Commission, whereas section 39(1)(a), enacted in 2015, provides for recruitment by the Council and appointment by the Cabinet Secretary. The 2018 amendment therefore prevails.

p. 5
02

Legality of the participation of two Council members in the Public Service Commission's interview panel

Holding

The co-option and participation of the two Council members was lawful and did not vitiate the recruitment process

Reasoning

Section 12 of the Public Service Commission Act empowers the Commission to establish committees and co-opt persons with the necessary knowledge and skills, who have no vote. The Court assumed the Council members had specialist knowledge unavailable to the Commission. Since they had no vote and made only non-binding recommendations, their participation neither interfered with nor influenced the independence of the Commission.

p. 4
03

Prematurity of the Petition

Holding

The question of prematurity did not arise because the Petitioner's challenge was to the process itself, not the outcome

Reasoning

The Council argued that the Petition was premature since the Commission had not released the interview results, so there was no decision to quash. The Court held the Council misapprehended the Petitioner's position: the Petitioner argued that because Council members participated in the interviews, any resulting decision would be invalid and liable to be quashed. The challenge was to process validity, not outcome, so prematurity did not arise.

p. 3
04

Public interest versus private interest

Holding

Some elements of the Petition advanced the private law interests of Prof Otieno, but the Court did not strike out the Petition on that basis

Reasoning

The Council challenged the Petitioner's standing to advance Prof Otieno's personal interests. The Court agreed that some elements of the Petition revolved around Prof Otieno's private law interests, noting he had separately sued the Council over non-renewal of his contract. The Court cautioned that third parties should not rush to court under the guise of public interest where the directly affected party is able to sue, and may condemn such parties to costs if abuse is found.

p. 3

Legal principles established

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  • Where provisions of one Act are inconsistent with those of a later Act, the later provision impliedly repeals the inconsistent earlier one
  • Section 35(1)(a)(v) of the Universities Act impliedly repealed section 39(1)(a) in respect of recruitment of Vice-Chancellors of public universities
  • The Public Service Commission may co-opt persons with necessary knowledge and skills into its committees/panels, and such co-opted persons have no vote
  • Third parties should not hastily bring litigation where the directly affected party is capable of suing

Court orders

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  1. 1.A declaration that section 35(1)(a)(v) of the Universities Act supersedes section 39(1)(a) of the Act in respect of recruitment of public universities Vice-Chancellors, Deputy Vice-Chancellors, Principals and Deputy Principals of Constituent Colleges
  2. 2.A declaration that the co-option and participation of University Council members by the Public Service Commission in the recruitment process under section 35(1)(a)(v) is not illegal and/or fatal to the recruitment process
  3. 3.Other reliefs sought declined
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Universities Actsection 35(1)(a)(v) as amended by Statute Law (Miscellaneous Amendments) Act No. 18 of 2018
  • Universities Actsection 39(1)(a) as amended by Statute Law (Miscellaneous Amendments) Act, 2015
  • Universities Actsections 7, 35, 39
  • Employment Act, 2007sections 5, 35, 41, 44
  • Fair Administrative Actions Act, 2015sections 3, 4, 5
  • Public Service Commission Act, 2017section 12(2)
  • Statute Law (Miscellaneous Amendments) Act No. 18 of 2018
  • Statute Law (Miscellaneous Amendments) Act, 2015
  • Constitution of Kenya, 2010Articles 41(1), 47

Cases cited (3)

  • Immanuel Masinde Okutoyi & Ors v National Police Service Commission & Ar
    (2014) eKLR
  • Martin Wanderi & 19 Others v. the Engineers Registration Board of Kenya & Ors
    (2014) eKLR
  • Institute of Patent Agents v. Joseph Lockwood
    (1894) AC 347
Jurisdiction invoked
Original constitutional petition jurisdiction under the Constitution (Bill of Rights enforcement), ELRC

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, "Okiya Omtatah Okoiti v Public Service Commission & 3 others [2020] KEELRC 328 (KLR)", Case Analysis (2020). Petition No. 606 of 2019 (Nairobi ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/328/eng@2020-10-16

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