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ELRCPartially AllowedNot stated in the judgment (Constitutional Petition with Notice of Motion dated 29.9.2021 and 13.10.2021)· [2021] KEELRC 473 (KLR)

Ferdinand Chirure Nyongesa v Masinde Muliro University of Science & Technology & another; John Muhehe & 5 others (Interested Parties) [2021] KEELRC 473 (KLR)

Employment and Labour Relations Court (implied by nature of petition and coram)
18 November 2021
3,639 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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A Kenyan academic seeking to block university promotions lost because appointment letters were already issued and he hadn't finished the university's internal appeal process.

What this practically means

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Executive summary

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The court delivered a ruling on two consolidated applications arising from a petition by Ferdinard Chirure Nyongesa, a university academician who sought interim stay and conservatory orders restraining the 1st and 2nd Respondents from issuing letters of appointment to appointees at Senior Lecturer Grade 13, Associate Professor Grade 14 and Professor Grade 15. The 1st and 2nd Respondents in turn sought review and setting aside of the interim stay granted on 13th October 2021 and adoption of the status quo. The Respondents and interested parties argued the application was overtaken by events because all appointment letters had been issued and accepted, that the Petitioner admitted he lacked the promotion criteria (supervision of three postgraduate students to conclusion), that he had not exhausted the University's internal appeal mechanisms, and that his discrimination claim failed because the comparators were not similarly situated. The Petitioner countered that the legal officer misled the court on the status of the appointment letters and that the Harmonized Criteria relied upon had been declared unconstitutional. The court found no prima facie case, held the application overtaken by events and refused to act in vain, and, applying the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Githinji, found no merit or public interest warranting conservatory orders while the Petitioner's internal appeal was pending. The Petitioner's application was dismissed with costs in the cause and the Respondents' application allowed to the extent that the interim orders of 13th October 2021 were vacated and the status quo before that date adopted, with costs in the cause.

Key legal issues

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01

Whether conservatory orders could issue where the appointment letters had already been issued and accepted

Holding

The orders could not issue as the application was overtaken by events

Reasoning

Evidence showed letters of appointment dated 23rd September 2021 had been issued and accepted by all interested parties, including Dr. Evans Ouma Raballah. Orders restraining an act already completed would be futile; the court declined to act in vain, echoing the Esso v Okiya holding cited by State Counsel.

p. 4
02

Whether the Petitioner had a prima facie case for conservatory orders

Holding

No prima facie case was established

Reasoning

The Petitioner admitted he did not meet the promotion criteria, notably supervision of three postgraduate students to conclusion. The discrimination allegation was not established on a prima facie basis, and the comparison with the 1st interested party failed since the latter is a technician, not an academician.

p. 4
03

Whether the Petitioner was obliged to exhaust internal remedies

Holding

Yes; the court declined to interfere while his appeal was pending internally

Reasoning

The Petitioner admitted having appealed against the rejection letter and that the appeal was due for consideration, with further appeal available to the Chairman of the University Council. The claim that the appeal was ignored was unsupported by evidence; interfering prematurely would be against public interest.

p. 4
04

Whether the court's jurisdiction was ousted by inclusion of the 2nd Respondent allegedly without capacity to be sued

Holding

Jurisdiction was not ousted; a party's status goes to the merits of that party, not the court's jurisdiction

Reasoning

The court held that the argument raised by counsel for the 5th and 6th interested parties lacked basis in law: the status of one party cannot oust the court's jurisdiction, and an objection to capacity can be addressed by striking out that party while the case proceeds against the others.

p. 3

Legal principles established

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  • Conservatory orders are public-law remedies granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • A party must exhaust internal dispute resolution mechanisms before approaching the court
  • A court will not issue orders that are overtaken by events or act in vain

Court orders

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  1. 1.The Petitioner's Notice of Motion dated 29th September 2021 dismissed with costs in the cause
  2. 2.The Respondents' Notice of Motion dated 13th October 2021 allowed to the extent of orders (c) and (d): the court's orders of 13th October 2021 vacated and the status of the parties prior to 13th October 2021 adopted
  3. 3.Costs in the cause on the Respondents' application

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(1)(d)
  • Constitution of Kenya 2010Article 27
  • Civil Procedure Actsections 1, 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (7)

  • Esso Kenya Ltd v Makwata Okiya
    Civil Appeal No. 69/1991 (1992 KLR)
  • Universities Academic Staff Union v Machakos University and another
    Nairobi ELRC Petition No. 43 of 2019
  • Center for Rights Education Awareness and 7 Others v Attorney General
    Petition No. 16/2011 (2011 eKLR)
  • Speaker of National Assembly v Hon. Njenga Karume
    (1992 KLR) at page 21
  • Masters Freighters v Kenya Bureau of Standards and Another
    (2019 eKLR) at page 8
  • Morrison and Another v Kenya Commercial Bank and Others
    2003 EA Page 600
  • Gatirau Peter Munya v Dickson Mwenda Githinji and 2 others
    Application No. 5 of 2014 (2014) eKLR
Jurisdiction invoked
Constitution of Kenya 2010, Article 159(1)(d) invoked in the Notice of Motion; petition filed in the High Court/ELRC against the university

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, "Ferdinand Chirure Nyongesa v Masinde Muliro University of Science & Technology & another; John Muhehe & 5 others (Interested Parties) [2021] KEELRC 473 (KLR)", Case Analysis (2021). Not stated in the judgment (Constitutional Petition with Notice of Motion dated 29.9.2021 and 13.10.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/473/eng@2021-11-18

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