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ELRCDismissedPetition dated 22nd September, 2022· [2023] KEELRC 918 (KLR)

Kenei v Egerton University & another (Petition E009 of 2022) [2023] KEELRC 918 (KLR)

Employment and Labour Relations Court of Kenya
20 April 2023
5,582 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 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 Senior Administrative Assistant at Egerton University, challenged by Petition dated 22nd September 2022 the recruitment of a Registrar-Human Capital and Administration (Grade 15) on a 5-year contract rather than permanent and pensionable terms, contending this contravened Statute 15(4) of the Egerton University Statutes, 2013 and violated Articles 10, 27, 41 and 47 of the Constitution. He sought declarations, an order of certiorari quashing the advertisement, specific performance compelling fresh recruitment, and a declaration that the acting Registrar be deemed substantive after acting beyond six months. The Respondents countered that the 2013 Statutes were never gazetted under section 23 of the Universities Act and thus lack the force of law; that the University Council resolved, because of financial constraints, to recruit on contract terms under clause 1.6.2 of the Human Capital Manual, 2018; that the acting Registrar was unqualified for the substantive post; and that the PSC HR Manual does not apply to the University. The court found the Egerton University Statutes 2013 unsigned, undated and not gazetted, hence of no force of law; held estoppel cannot oust an express statutory requirement; and held an employer has the prerogative to fix terms of employment, including fixed-term contracts, within the law. The Petition was dismissed with no order of costs.

Key legal issues

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01

Effect of non-gazettement of the Egerton University Statutes, 2013

Holding

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

Reasoning

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.

p. 10
02

Whether estoppel could bar the Respondents from disowning the non-gazetted Statutes they had previously relied upon

Holding

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

Reasoning

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.

p. 10
03

Whether changing the terms of the position from permanent and pensionable to a 5-year contract violated the Petitioner's constitutional rights

Holding

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

Reasoning

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.

p. 10
04

Whether the acting Registrar should be deemed a substantive office holder after acting beyond six months

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed for lack of merit
  2. 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

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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, "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.