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ELRCDismissedPetition No. 1 of 2019· [2020] KEELRC 570 (KLR)

Towett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commisison & 2 others (Interested Parties) [2020] KEELRC 570 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
30 July 2020
5,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a petition seeking to block university leadership appointments, ruling that corruption allegations belong to the EACC, not that court.

What this practically means

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Executive summary

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The two petitioners, acting in person, filed a constitutional petition at the Kericho Employment and Labour Relations Court seeking conservatory orders barring Bomet University College from interviewing the 1st, 2nd, 3rd and 6th respondents; declarations under Articles 73, 10 and 232 that their acting appointments without regard to integrity, character, competence and suitability were unconstitutional; an order compelling the EACC to investigate complaints of embezzlement, abuse of office and procurement irregularities; and an order compelling the university to commence disciplinary proceedings. The respondents opposed, contending the court lacked jurisdiction, that the recruitment of the top leadership had been transferred to the Public Service Commission by the amended Universities Act effective 18th January 2019, and that the orders sought were no longer available. The EACC and the PSC also raised jurisdictional objections. The court framed two issues: jurisdiction and whether the orders should issue. It held that although appointments to public office are ordinarily employment matters, the substantive issue was alleged embezzlement and abuse of office, which falls within the EACC's constitutional mandate, so the ELRC lacks jurisdiction and must down its tools. It further found the petitioners had not established standing under Articles 22 and 258, the petition failed the Anarita Karimi Njeru precision test, the allegations were conjecture amounting to a fishing expedition, and the recruitment process under the PSC's statutory mandate was lawful and transparent. The petition was dismissed for want of jurisdiction with costs to the respondents and the 1st interested party.

Key legal issues

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01

Jurisdiction of the ELRC over allegations of embezzlement, abuse of office and procurement irregularities

Holding

The court lacks jurisdiction; the substantive issue is alleged embezzlement and abuse of office, which falls within the EACC's mandate, not the ELRC

Reasoning

Although appointments to public office touch on employment and labour relations under Article 162, the core of the petition was stopping appointments to allow investigations over alleged embezzlement and abuse of office. Such allegations are ordinarily for the EACC, the body constitutionally mandated and equipped to investigate them. The court therefore lacks jurisdiction and must down its tools.

p. 7
02

Whether the petitioners satisfied Article 258 standing requirements

Holding

No - the petitioners did not describe themselves or specify the capacity in which they filed; the petition suggests a private-law motive

Reasoning

The petitioners gave no description of themselves beyond invoking Article 258. Respondents indicated they are employees on secondment facing disciplinary proceedings, suggesting the petition was filed to divert attention. The court questioned whether the matter was in the public interest or the private law arena.

p. 7
03

Compliance with the Anarita Karimi Njeru precision threshold

Holding

The petition fails the threshold; allegations were conjecture and annexures were unreliable

Reasoning

The petition did not set out with precision the constitutional provisions infringed and the manner of infringement. The annexures relied on (schedule of payments, incomplete tenancy agreement, letter on legal services) did not constitute evidence of malpractice, amounting to a fishing expedition and abuse of court process.

p. 8
04

Lawfulness of the recruitment process under the amended Universities Act

Holding

Following the amendment effective 18th January 2019, the PSC is mandated to competitively recruit Vice Chancellors, Deputy Vice Chancellors and Principals of constituent colleges; the process was lawful and transparent

Reasoning

Section 35(1)(a)(v) of the Universities Act, 2012 as amended placed the recruitment mandate with the PSC, undertaken in consultation with the Cabinet Secretary. The 4th respondent had advertised and shortlisted openly; the PSC took over the process per section 37 of the Public Service Commission Act. Stopping the process on competence or suitability grounds was pre-emptive and would disadvantage the candidates.

p. 10

Legal principles established

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  • Where a court lacks jurisdiction, it must down its tools and cannot entertain the matter
  • A petitioner enforcing the Constitution must specify the capacity in which they come to court under Article 22 or 258; mere assertion is insufficient
  • A constitutional petition must set out with reasonable precision the provisions said to be infringed and the manner of infringement
  • A party is bound by their pleadings in the adversarial system

Court orders

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  1. 1.The Petition is dismissed for want of jurisdiction
  2. 2.Costs awarded to the respondents and the 1st Interested party
Jurisdiction invoked
Article 162(2) and (3) of the Constitution, 2010 (employment and labour relations jurisdiction)

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, "Towett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commisison & 2 others (Interested Parties) [2020] KEELRC 570 (KLR)", Case Analysis (2020). Petition No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/570/eng@2020-07-30

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