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ELRCPartially AllowedPetition dated 1st February 2023 (number not stated in judgment)· [2024] KEELRC 298 (KLR)

Kithuka v Meru University of Science & Technology (Employment and Labour Relations Petition E001 of 2023) [2024] KEELRC 298 (KLR)

Employment and Labour Relations Court
16 February 2024
4,977 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court quashed two university appointments made without open recruitment, confirming any citizen can sue to protect public interest hiring.

What this practically means

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Executive summary

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The petitioner, describing himself as a public-spirited resident, challenged the respondent university's January 2023 appointment of a Human Resource Manager and a Corporation Secretary/Head of Legal Affairs without advertisement, interviews or competitive recruitment. The appointments were made by the Vice Chancellor on one-year contract terms under Schedule III 2(d) of the University Statutes, with Council approval, after the National Treasury declined a request to recruit on permanent terms. The respondent argued the petitioner lacked locus standi and that a Head of Public Service circular freezing recruitment justified the temporary appointments. The court held the petitioner had locus standi under Articles 22 and 258, following Mumo Matemu and applying the public interest test in John Wekasa Khaoya. On the merits, the court found the respondent's HR instruments had not been SCAC-approved, so the recruitment freeze remained in force and approval of the Head of Public Service was mandatory; instead the respondent approached the National Treasury, whose request was declined, and the court inferred an intention to circumvent the circulars. The court found the recruitment was conducted secretly by handpicking candidates, as shown by a forwarded 2019 email application to the Vice Chancellor. The appointments offended Articles 10, 73, 80 and 232 of the Constitution and section 52 of the Leadership and Integrity Act, and the statutory power of temporary appointment was subject to the Constitution. The court declared the appointments null and void ab initio, quashed them, and awarded no costs as public interest litigation.

Key legal issues

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01

Locus standi in public interest litigation

Holding

Petitioner has locus standi under Article 22 and 258 as a person acting in the public interest

Reasoning

The court invoked Articles 22(1) and 258 which give every person the right to institute proceedings on violation of the Bill of Rights or the Constitution. Relying on Mumo Matemu and John Wekasa Khaoya, the court found the petitioner acted in good faith for the public good and stood to gain nothing personally.

p. 6
02

Compliance with lawful recruitment procedure

Holding

The appointments breached the Head of Public Service circular freezing recruitment and were made without advertisement or competitive process

Reasoning

The respondent's HR instruments were not SCAC-approved, so the recruitment freeze applied and approval of the Head of Public Service was required. The respondent instead sought approval from the National Treasury, which was declined. The appointment emails showed handpicking of candidates rather than open recruitment.

p. 8
03

Constitutional violation

Holding

The appointments offended Articles 10, 73, 80 and 232 and were null and void ab initio

Reasoning

The opaque recruitment contravened national values of good governance, leadership and integrity, and public service values of fair competition and merit. The University Statute's temporary appointment power is subordinate to the Constitution. Appointments inconsistent with the Constitution are invalid.

p. 11

Legal principles established

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  • Articles 22 and 258 give an enlarged view of locus standi; every person, including persons acting in the public interest, may move the court
  • Public appointments must comply with constitutional values of transparency, competitiveness and integrity; statutory powers of appointment are subject to the Constitution
  • Public officers must seek approval from the Head of the Public Service where recruitment freezes apply; circumventing circulars offends Article 10

Court orders

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  1. 1.A declaration that the Respondent failed in its duty to uphold the rule of law, the constitution, and to protect the public interest in the recruitment of the Human Resource Manager and the Corporation Secretary/Head of Legal Affairs, through an open and competitive process
  2. 2.A declaration that the appointment by the Respondent's Vice Chancellor of Human Resource Manager and the Corporation Secretary/Head of Legal Affairs, in January 2023, was invalid, null and void ab initio
  3. 3.The appointment of Human Resource Manager and the Corporation Secretary/Head of Legal Affairs by the respondent in January 2023 is quashed
  4. 4.No costs awarded, this being a public litigation case

Authorities

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Legislation

  • Constitution of Kenya, 2010Preamble; Articles 1(c), 2, 4(2), 10, 22, 23, 50(1), 73, 80, 159, 165, 232, 258, 259, 260
  • High Court (Organization and Administration) Act, No. 27 of 2015section 5
  • Mwongozo for State CorporationsJanuary 2015
  • Employment Actnot specified
  • Employment and Labour Relations Court Actnot specified
  • Fair Administrative Actions Actnot specified
  • Leadership and Integrity Actsection 52
  • Universities Actnot specified
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (4)

  • John Mirigi Temoi & Anor v Governor of Bungoma County and 17 others
    [2014] eKLR
  • Republic v the Vice Chancellor Jomo Kenyatta University of Agriculture and Technology
    Nairobi HC Misc Application No. 30 of 2007
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • John Wekasa Khaoya v. Attorney-General
    High Ct. Pet. No. 60 of 2012
Jurisdiction invoked
Articles 22, 23, 165, 258 of the Constitution and section 5 of the High Court (Organization and Administration) Act, No. 27 of 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kithuka v Meru University of Science & Technology (Employment and Labour Relations Petition E001 of 2023) [2024] KEELRC 298 (KLR)", Case Analysis (2024). Petition dated 1st February 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/298/eng@2024-02-16

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