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ELRCPartially AllowedPetition No E036 of 2021· [2022] KEELRC 1005 (KLR)

Nicholas Ouma v Public Service Commission & 4 others; Aggrey Daniel Maina Thuo & 2 other (Interested Parties) [2022] KEELRC 1005 (KLR)

Employment and Labour Relations Court of Kenya
26 January 2022
RSRadido Stephen
2,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan university's reversal of its recommended DVC appointment was void because consultations between the Council and Cabinet Secretary were informal, undocumented, and unapproved.

What this practically means

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Executive summary

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Two consolidated petitions challenged the appointment of Prof Francis Angawa Okere as Deputy Vice-Chancellor (Planning, Administration and Finance) of Jaramogi Oginga Odinga University of Science and Technology in place of Prof Aggrey Daniel Maina Thuo, who had been ranked first by the Public Service Commission and recommended by the University Council to the Cabinet Secretary for a five-year term. The respondents, including the Cabinet Secretary and Attorney General, argued the petition failed the Anarita Karimi Njeru pleading threshold and that the appointment followed lawful consultations reflecting regional balance and the face of Kenya. The 5th Respondent, Council Chair, denied any promise or past practice grounding legitimate expectation and maintained any of the three recommended candidates could be appointed. The Court held the Anarita objection was not determinative, noting Article 22(3) permits informal proceedings and no prejudice was shown. On the merits, the Court found the Council had made a firm resolution recommending the 1st Interested Party on 26 March 2021, yet the recommendation was reversed and the 3rd Interested Party appointed without any records of formal consultations with the Cabinet Secretary or approval by the Council as a collective. Such consultations, envisaged by section 35(1)(a)(v) of the Universities Act, cannot be conducted informally, being subject to transparency, accountability and equal opportunity under Article 232. The Court declared the appointment of the 3rd Interested Party unconstitutional, invalid, null and void and issued an order invalidating it, with each party bearing its own costs as the petition was in the public interest.

Key legal issues

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01

Pleading threshold for constitutional petitions

Holding

The challenge based on the Anarita Karimi Njeru test was not determinative; respondents were aware of the case and suffered no prejudice, and Article 22(3) permits informal proceedings.

Reasoning

The Court held the petition challenged an appointment to public office underpinned by Article 232 values, so a constitutional question arose. Respondents answered the case without showing prejudice from any pleading deficiency. The epistolary jurisdiction under Article 22(3) allows informal proceedings, and the parallel-proceedings objection fell away upon consolidation.

p. 5
02

Validity of the appointment of the 3rd Interested Party

Holding

The reversal of the recommendation to appoint the 1st Interested Party and the appointment of the 3rd Interested Party did not meet the constitutional normative standard and was null and void.

Reasoning

The Commission recommended three candidates; the Council resolved to recommend the 1st Interested Party on merit. No records showed formal consultations with the Cabinet Secretary or Council approval of the substitution. The Council never gave its imprimatur to the appointment of the 3rd Interested Party, breaching transparency, accountability and merit requirements.

p. 6

Legal principles established

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  • Consultations between the Council and the Cabinet Secretary on appointment of a Deputy Vice-Chancellor cannot be conducted informally as they are subject to constitutional values of transparency, accountability and equal opportunity
  • Where the Council has made a firm resolution on an appointment, consultations must revolve around that resolution and the Council must approve any departure from it

Court orders

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  1. 1.A declaration that the appointment of Francis Angawa Okere as Deputy Vice-Chancellor (Planning, Administration and Finance) of Jaramogi Oginga Odinga University of Science and Technology is unconstitutional, invalid, null and void
  2. 2.An order invalidating the appointment of Francis Angawa Okere as Deputy Vice-Chancellor (Planning, Administration and Finance) of Jaramogi Oginga Odinga University of Science and Technology
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(3), 35, 232
  • Universities Actsections 35(1), 35(1)(a)(v), 39
  • Fair Administrative Action Actsection 7(2)

Cases cited (1)

  • Anarita Karimi Njeru v R (No. 1)
    (1979) KLR 154
Jurisdiction invoked
Articles 10, 22(3), 35, 232 and 238 of the Constitution; sections 35(1) and 39 of the Universities Act, 2012; section 7(2) of the Fair Administrative Action Act

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, "Nicholas Ouma v Public Service Commission & 4 others; Aggrey Daniel Maina Thuo & 2 other (Interested Parties) [2022] KEELRC 1005 (KLR)", Case Analysis (2022). Petition No E036 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1005/eng@2022-01-26

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