Kenei v Egerton University & another (Petition E009 of 2022) [2023] KEELRC 918 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of non-gazettement of the Egerton University Statutes, 2013
The Statutes were never gazetted and therefore had no force of law; the Petitioner could not rely on Statute 15(4) to invalidate the recruitment
The court examined section 23 of the Universities Act, which requires a university council to submit statutes to the Cabinet Secretary for gazettement within three months of making. On inspecting the exhibited Egerton University Statutes, the court found no authentic signature showing council approval, no date, and no gazettement. Following the reasoning in Otieno v Council of Legal Education, subsidiary legislation not passed in accordance with the prescribed procedure does not acquire the force of law and cannot be the basis of a claim.
Whether estoppel could bar the Respondents from disowning the non-gazetted Statutes they had previously relied upon
Estoppel cannot apply to oust an express provision of the law; a non-gazetted statute did not acquire the force of law and cannot be given effect through estoppel
The Petitioner argued, citing section 120 of the Evidence Act and Joyce Chepkoech Too v Egerton University, that the University was estopped from disowning a statute it had previously relied on in court. The Respondents countered that estoppel cannot override an express statutory requirement. The court accepted that because the Statutes were never gazetted, they lacked the force of law, and no doctrine of estoppel could confer legal force on subsidiary legislation that had not followed the prescribed gazettement procedure.
Whether changing the terms of the position from permanent and pensionable to a 5-year contract violated the Petitioner's constitutional rights
No violation; the employer lawfully exercised its prerogative under clause 1.6.2 of the HR Manual and section 10 of the Employment Act, and the change did not affect existing staff like the Petitioner
The court found the University Council, faced with a financial crisis, resolved that future recruitment be on contract basis in line with clause 1.6.2 of the Human Capital Manual, 2018. Sections 10(3)(c) and 10(5) of the Employment Act permit fixed-term engagements and variation of contracts with consultation in respect of continuing employment. The Petitioner had not applied for the position, and the change affected only vacant offices, not serving staff, so his rights under Articles 10, 27, 41 and 47 were not infringed.
Whether the acting Registrar should be deemed a substantive office holder after acting beyond six months
The prayer fails: the PSC Human Resource Policies and Procedures Manual does not apply to the Respondents, the Petitioner did not submit on the issue, and the acting officer was not qualified for the substantive position
The Respondents argued that the Petitioner abandoned the prayer by not submitting on it, citing Joshua Momanyi Moranga and William Kinyanjui Kamau. They further showed that clause C14 of the PSC manual could not apply since the acting Registrar lacked a PhD in the required fields, and the PSC manual does not govern the University. The court held the prayer unsustainable on these grounds.
Legal principles established
#- A university statute that has not been gazetted as required under section 23 of the Universities Act lacks the force of law and cannot found a claim
- An employer has the prerogative to determine the terms and conditions of employment, including employing on contract rather than permanent and pensionable terms, so long as it acts within the law
Court orders
#- 1.The Petition is dismissed for lack of merit
- 2.No order of costs
- Jurisdiction invoked
- Constitution of Kenya, Articles 10, 27, 41 and 47 (alleged violations); petition filed in the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenei v Egerton University & another (Petition E009 of 2022) [2023] KEELRC 918 (KLR)", Case Analysis (2023). Petition dated 22nd September, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/918/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.