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ELRCDismissedNot stated in the judgment· [2023] KEELRC 977 (KLR)

Universities’ Academic Staff Union (UASU) University of Eldoret Chapter v University of Eldoret (Judicial Review Application E005 of 2022) [2023] KEELRC 977 (KLR)

Employment and Labour Relations Court of Kenya
28 April 2023
2,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed UASU's bid to stop the University of Eldoret recruiting Deans and Directors, confirming hiring of academic leaders is the University Council's job alone.

What this practically means

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Executive summary

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The Applicant union moved the court by notice of motion dated November 1, 2022 seeking judicial review orders of prohibition and certiorari against the Respondent university, to stop and quash the recruitment of Deans and Directors commenced pursuant to an internal advertisement of August 4, 2022, and in default, liberty to commence contempt proceedings against the Vice Chancellor and Chairpersons of the Senate. The union argued the recruitment breached clause 3:3 of the 2019 recognition agreement and the constitutional principles of public participation and transparency under Articles 10 and 232, contending the process beyond the advertisement was conducted in secrecy. The Respondent, through Professor Teresa Akenga, countered that appointment of Deans and Directors is vested in the University Council under the University statutes, that due process was followed through advertisement, a tender opening committee, and an Ad Hoc shortlisting committee applying objective criteria, and that the recruitment had since been concluded with appointment letters issued, rendering the matter non-amenable to judicial review. The court held that clause 3.3.1 of the recognition agreement obliges only mutual good faith and confers no role on the union in Council appointments; that recruitment of Deans and Directors is solely a reserve of the University Council; and that judicial review remedies are discretionary. As the process had concluded and the Respondent acted within its mandate, the orders would serve no purpose. The application dated November 1, 2022 was dismissed with no orders as to costs.

Key legal issues

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01

Whether the recognition agreement conferred on the union a role in the recruitment of Deans and Directors

Holding

No; clause 3.3.1 only obliges the parties to act in each other's best interests and does not give the union a role in Council appointments

Reasoning

The court examined the recognition agreement exhibited as PKC.2, particularly clause 3.3, and concluded that its import is mutual good faith in performance of mandate. It did not accept that the agreement required consultation with the union or participation in the recruitment of Deans and Directors, an appointment function vested in the University Council under the University statutes.

p. 5
02

Whether the recruitment process violated Articles 10 and 232 on public participation and transparency

Holding

Although those Articles require public participation in recruitment of public officers, the court declined to fault the process, noting advertisement was done and the exercise was within the University Council's reserve

Reasoning

The applicant argued the post-advertisement process was opaque and lacked participation. The court acknowledged Articles 10 and 232 but held that recruitment of Deans and Directors is solely a reserve of the University Council. It was not disputed an internal advertisement accessible to staff was placed on the University portal, so the process was within mandate.

p. 6
03

Whether judicial review orders should issue where the impugned process is already concluded

Holding

No; the court exercised its discretion to deny the orders as they would serve no purpose

Reasoning

The Respondent demonstrated that the recruitment had concluded and appointment letters issued to successful candidates. The court held judicial review remedies are discretionary, and where the Respondent acted within its mandate and the process is complete, granting orders would serve no purpose. The application was accordingly dismissed.

p. 6

Legal principles established

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  • Judicial review remedies are discretionary and the court may decline to grant them for good reason, particularly where the process has been completed and the decision-maker acted within its mandate
  • The recruitment of Deans and Directors of universities is a function reserved to the University Council

Court orders

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  1. 1.The application dated November 1, 2022 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court (orders of prohibition and certiorari sought); the judgment does not cite a specific constitutional or statutory jurisdictional provision

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, "Universities’ Academic Staff Union (UASU) University of Eldoret Chapter v University of Eldoret (Judicial Review Application E005 of 2022) [2023] KEELRC 977 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/977/eng@2023-04-28

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