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ELRCPartially AllowedPetition (filed 4 August 2020) - number not stated in judgment· [2021] KEELRC 1904 (KLR)

Moses Wanjala Lukoye v Cabinet Secretary, Ministry of Education & 6 others; Masinde Muliro University of Science and Technology(Interested Party) [2021] KEELRC 1904 (KLR)

Employment and Labour Relations Court (High Court-constituted forum for constitutional petition)
7 April 2021
RSRadido Stephen
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, a layperson, challenged the appointment on 20 March 2020 by the Cabinet Secretary for Education of the Chairperson and members of the Council of Masinde Muliro University of Science and Technology (Gazette Notice No. 2365), alleging contravention of Article 10 and other constitutional provisions. The vacancies had been advertised on 25 February 2020 with an application deadline of 17 March 2020; shortlisted applicants were only published on 24 March 2020, four days after the gazettement. The Cabinet Secretary and Attorney General defended the appointments on grounds of the COVID-19 pandemic, reliance on a ministry database of eligible former council members, and the need to avoid a vacuum; they also challenged competency under the Anarita Karimi Njeru threshold. The court held the Petition competent under Article 22(3)(b) given informal documentation by a layperson and absence of prejudice. On the merits it found the appointments lacked statutory foundation, that re-appointment could only apply to the same institution, that reliance on a database mocked the advertised competitive process, and that failure to release virtual interview results violated transparency and accountability values under Articles 10 and 232. The COVID-19 justification failed because interviews were in fact conducted virtually. The court declared the appointments null and void and quashed Gazette Notice No. 2365 by certiorari. Treating the Petition as public interest litigation, it ordered each party to bear their own costs. Judgment delivered on 7 April 2021 by Radido Stephen, J.

Key legal issues

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01

Competency of the Petition

Holding

The Petition was competent despite informal drafting by a layperson

Reasoning

Article 22(3)(b) permits informal documentation by parties without legal training. The Petitioner identified the constitutional provisions alleged to have been contravened, and the Respondents did not demonstrate prejudice; their replying affidavit showed they understood the case to meet.

p. 3
02

Transparency and accountability in appointments

Holding

Failure to release interview results and appointing non-shortlisted persons contravened Articles 10 and 232

Reasoning

Vacancies were advertised with a competitive process begun, but the Cabinet Secretary gazetted the appointees before shortlisting was published and never released interview results. Virtual interviews were conducted, so the COVID-19 pandemic could not justify bypassing competitive recruitment.

p. 3
03

Re-appointment from a database

Holding

No statutory foundation existed for database-based appointment or re-appointment to a different institution

Reasoning

The 3rd Respondent had never chaired or served on the MMUST Council, so she could not be re-appointed there. No statutory basis supported appointing persons who had neither applied nor been shortlisted. The court relied on its own reading, not the Respondents' cited authority, on this point.

p. 4

Legal principles established

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  • A person eligible for re-appointment to public office can only be re-appointed to the same public institution, not to a different one
  • Appointing public officers from a database, after advertising competitive vacancies, is contrary to the national values of transparency and accountability under Articles 10 and 232

Court orders

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  1. 1.Declaration that the decision by the 1st Respondent to gazette and appoint the 3rd Respondent as chairperson and the 4th-7th Respondents as members of the Masinde Muliro University Council contravened Articles 10 and 232 of the Constitution and is null and void
  2. 2.Order of certiorari quashing Gazette Notice No. 2365
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(3)(b), 27, 34, 35, 41, 47, 48, 50, 56, 232

Cases cited (2)

  • R v Cabinet Secretary for Education, Science & Technology & 3 Ors
    (2014) eKLR
  • Anarita Karimi Njeru v Attorney General
    (1979) eKLR
Jurisdiction invoked
Articles 10, 22, 23, 47, 232 of the Constitution of Kenya 2010 (constitutional petition under Article 22(3)(b) informal procedure)

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, "Moses Wanjala Lukoye v Cabinet Secretary, Ministry of Education & 6 others; Masinde Muliro University of Science and Technology(Interested Party) [2021] KEELRC 1904 (KLR)", Case Analysis (2021). Petition (filed 4 August 2020) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1904/eng@2021-04-07

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