Phillip Maobe v Kenya Methodist University

The Petitioner's Supporting Affidavit supports the Application on the grounds that, through a letter dated 15 April 2026, the Respondent expressed its intention to terminate the Petitioner’s contract of employment, effective 30 June 2026. The petitioner asserted that his rights under Articles 10, 19, 20, 41, 47, and 50 of the Constitution have been violated and are threatened with violation and that he has a good case challenging the termination of his employment which should be preserved pending the hearing and determination of the petition. The petitioner avers in his affidavit that his petition has a high probability of success, that the termination of his employment contract breaches the Constitution and the law, and that the balance of convenience tilts in his favour. Unless the orders sought are granted, the respondent will continue violating his constitutional rights. The Petition raises weighty constitutional issues that require full and fair adjudication before the Respondents take any irreversible action. To secure the interest of justice and fairness, the orders sought be granted. The petitioner avers that he was appointed as a member of the Respondent’s University Council by a letter dated 7 June 2019, for a term of three years, representing the Kenya Methodist University Alumni Association (KeMUAA), pursuant to Section 10 of the Kenya Methodist University Charter, 2006, read together with Section 4.5(a) of the KeMUAA Constitution. He was subsequently reappointed on 26 August 2022 for a further term of three years, effective from 1 July 2022. The Petitioner avers that upon the expiry of his second term in June 2025, the Respondent neither communicated the cessation of his appointment nor prevented him from continuing to discharge his duties as a member of the Council. Instead, the Respondent allowed him to continue serving and receiving his full benefits, including sitting allowances. He consequently formed the legitimate expectation that his appointment had been renewed for a further three-year term, as had been the practice during his previous reappointment. ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 2

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The Petitioner contends that the Respondent only questioned his tenure after he, in his capacity as Chairperson of KeMUAA, sought the release of Kshs. 1,619,000 collected from the 2025 graduating class on behalf of the Alumni Association. Despite several requests and follow-up letters, the Respondent declined to remit the funds, asserting that there was no legal or policy obligation to transfer the money to KeMUAA. The Petitioner further avers that, following his pursuit of the funds, the Respondent demanded an immediate audit of the Association’s accounts and subsequently issued a letter dated 15 April 2026, informing him that his term had expired on 30 June 2025, while extending his tenure to 30 June 2026 to facilitate continuity and a smooth transition. The Petitioner challenges the Respondent’s reliance on Section 13(3) of the Kenya Methodist University Charter, as amended in 2023, which limits Council members to two three-year terms. He maintains that his appointment and reappointment were made under Section 13(7) of the 2006 Charter, which permitted reappointment without limiting the number of terms. He contends that the subsequent amendment could not be applied retrospectively to extinguish his accrued rights and legitimate expectation of renewal. The Petitioner avers that, as the elected Chairperson of KeMUAA, he remained the Association’s rightful representative on the University Council under its Constitution. KeMUAA, through a resolution passed on 24 April 2026 and a subsequent letter dated 11 June 2026, reaffirmed his mandate to represent the Association. The Respondent’s decision to terminate his engagement was premature, was made without proper consultation or notification, and effectively deprived KeMUAA of its representation on the Council. The Petitioner alleges that the purported termination of his appointment was retaliatory and was precipitated by his pursuit of accountability and the release of funds belonging to KeMUAA. The Respondent’s conduct ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 3

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violated his constitutional rights, particularly the right to fair administrative action and legitimate expectation under Article 47, the right to fair labour practices under Article 41, and the right to a fair hearing under Article 50 of the Constitution. He further alleges violations of the national values and principles of governance under Article 10, human dignity under Article 19, and the obligations imposed by Article 20 of the Constitution. In reply, the Respondent, through its Replying Affidavit of Njeri Mbugua, the legal officer, avers that the University Board of Trustees is a body corporate established under the Trustees (Perpetual Succession) Act. The letters appointing the Petitioner to the University Council, including the letter dated 15 April 2026, were issued by the Board of Trustees, not the University; therefore, the proper Respondent in the proceedings ought to be the University Board of Trustees, as the appointing authority. During its meeting held on 10 April 2026, the Board of Trustees deliberated on the tenure of its members and those of the University Council in light of the amendments to the University Charter. It resolved that the Council's composition exceeded the prescribed establishment and would be regularised by December 2026, noting that most appointments were due to expire in November 2026. The Board further established that the Petitioner’s term had expired on 1 July 2025 and resolved that he be notified of the expiry, while considering an extension of his tenure to 30 June 2026 to facilitate a smooth transition. Mbugua avers that the letter dated 15 April 2026 was issued pursuant to the lawful and regular deliberations of the appointing authority and was neither malicious nor motivated by ill will. It further contends that the Board’s deliberations affected other members of the University Council and were not specifically directed at the Petitioner. The Respondent asserts that the Charter provides for one representative of the Alumni Association on the Council but does not confer automatic representation on the Chairperson or any other official of the Association. It maintains that the KeMUAA Constitution is subordinate to the University Charter. ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 4

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Under Section 13(13) of the amended University Charter, Council members serve for three years and are eligible for reappointment for only one further term. The Petitioner, having served for approximately seven years since his initial appointment in 2019, is ineligible to continue serving on the Council. Although the original Charter did not limit the number of reappointments, the Respondent maintains that Legal Notice No. 148 of 2023 introduced the limitation and constitutes the applicable law on eligibility for appointment to the Council. The alleged legitimate expectation of renewal and the allegations of intimidation raise contested matters of fact that can only be determined at the full hearing of the Petition and not at the interlocutory stage. The dispute primarily concerns the Petitioner’s personal interests and does not raise a sufficient public interest consideration to warrant the orders sought. The Petitioner has not demonstrated any irreparable harm that would arise from the implementation of the impugned letter, particularly since any loss suffered could be compensated by monetary damages and his continued service is, in any event, barred by the applicable statutory provisions. On the application, the petitioner submitted that the respondent is the proper party and the orders sought should be issued. The argument that the Petitioner ought to have sued the Board of Trustees, and not the Respondent, is unsupported by evidence. The evidence on record demonstrates that the Respondent was the Petitioner’s employer. In particular, the Respondent paid the Petitioner’s remuneration and remitted the attendant taxes, as evidenced by the KRA P9A for 2025. The appointment letters also show that the Board of Trustees appointed the Petitioner on behalf of the Respondent. Under Section 35(2) and (3) of the Universities Act, the Board of Trustees was a management organ of the Respondent and was not an independent legal entity distinct from the Respondent. The Respondent, being a body ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 5

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corporate capable of suing and being sued in its own name, was therefore properly joined in the proceedings. The Petitioners submitted that the principles governing the grant of conservatory orders were settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (Application No. 5 of 2014) [2014] eKLR. conservatory orders are public law remedies intended to preserve the proper functioning of public agencies, uphold the authority of the Court and protect the public interest. The principles are that an applicant must demonstrate an arguable case, show that the matter risks being rendered nugatory if relief is not granted, and show that the public interest favours granting the orders, as held in Bundid & another v Mini stry of East African Community (EAC), the Asals and Regional Dev elopment & 3 others [2024] KEHC 3479 (KLR). There is an arguable case based on the principles outlined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR. The Petition raises genuine constitutional questions that the Court must determine. The Respondent had violated or threatened to violate the Petitioner’s rights under Articles 10, 19, 20, 41, 47 and 50 of the Constitution. In particular, the Petitioner challenged the Respondent’s letter dated 15 April, 2026, arguing that it raised questions about the legality and fairness of how the Respondent dealt with the Petitioner’s employment status between June 2025 and April 2026. The Respondent’s decision to allow the Petitioner to serve on the Council for approximately ten months had created a legitimate expectation that his contract would be renewed. The Petition risks being rendered nugatory if the substratum of the Petition and the legality of the Respondent’s decision to terminate, or bring to an end, the Petitioner’s tenure are allowed to stand. The principal relief sought is an order quashing the decision contained in the letter of 15 April, 2026. If the Respondent were permitted to remove the Petitioner from the Council and appoint or recognise another person in his place, the factual circumstances ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 6

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underlying the Petition would materially change. In response, the Respondent submitted that the application did not meet the constitutional and legal threshold for granting interim conservatory orders as set out by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. It argued that the application raised private grievances disguised as a matter of public interest and did not disclose any public interest considerations warranting the grant of the orders sought. The Respondent submitted that the dispute concerning Kshs. 1,619,000 between the petitioner and the Kenya Methodist University Alumni Association (KeMUAA) was essentially civil or commercial in nature and fell outside the Court’s jurisdiction. The Petitioner has not demonstrated a clear employment dispute, having not referred to the employment contract, Human Resource Manual or Employment Act. The question of whether the Petitioner was an employee of the University Council or the Board of Trustees is contested and could only be resolved at the full hearing of the Petition. The dispute over the Petitioner’s tenure on the University Council required interpreting the University Charter of 2006, which did not prescribe term limits, and the 2023 Charter, which introduced them. On the claim of legitimate expectation, the Respondent submitted that the doctrine does not confer an automatic right to continued employment or service on the University Council, as the decision fell within the Board of Trustees' discretion. It maintained that the termination letter resulted from lawful and regular deliberations by the appointing authority and was neither malicious nor actuated by ill will. The Respondent further submitted that the Petitioner had not demonstrated any irreparable harm that would be suffered if the conservatory orders were declined, or that monetary damages could not ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 7

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compensate for it. It also contended that the Petitioner’s eligibility to serve on the University Council was barred by statute. Determination At the core of the petitioner's application is the implementation and enforcement of the letter dated 15 April 2026. The letter terminated his position in the council with effect from 30 June 2026. The same has since taken effect. Issuing conservatory orders stopping implementation of the subject letter dated 15 April 2026 would reinstate the petitioner to the challenged position. The respondent has challenged the entity sued and that the petitioner was serving the University Board of Trustees, being the appointing authority and a body corporate under the Trustees (Perpetual Succession) Act, is the proper party to these proceedings. These matters call for interrogation and the calling of evidence before the court to make a determination. To stop the implementation of the letter dated 15 April 2026 before hearing the parties on merit would be to order the petitioner's reinstatement in the interim. Under section 12(3)(vii) of the Employment and Labour Relations Court Act, section 49(4) of the Employment Act and Rule 53 of the Employment and Labour Relations Court (Procedure) Rules, an order of reinstatement of an employee or officer whose position has been terminated should not be issued in the interim. Rule 53 provides: 53. Notwithstanding anything contained in this Rule, th e C o u r t shall not grant an ex parte order that reinstates into employment an employee whose services have been terminated. In this case, it is necessary to hear the parties on merit before ordering an order of specific performance in the interim. ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 8

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On whether the respondent is properly sued, the Board of Trustees issued the appointment letters, including the impugned letter dated 15 April 2026. Indeed, the Petitioner acknowledges that the Board appointed him on behalf of the Respondent. The precise legal relationship between the University and the Board, and the extent of the Board's authority to make the appointment and terminate the Petitioner's tenure, require consideration of the applicable legal framework and the evidence. The question of whether the Respondent is properly sued is, therefore, intertwined with the substantive issues in the Petition. It would be premature to make a definitive determination at this interlocutory stage. In any event, the objection does not, in itself, prevent the Court from considering the Application. The question of joinder or misjoinder may be addressed at the substantive hearing, as appropriate. Accordingly, the Application dated 24 June, 2026 is without merit and is hereby dismissed. The Petition shall proceed to hearing on the merits. Costs to abide the outcome of the petition. Delivered in open court this 1st day of October 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………………………… ……………….……………..……… ELRC NAIROBI JUDGMENT PETITION NO. E211 OF 2026 9 and …………………

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