Prof. Wangari Mwai v Presbyterian University of East Africa

agents or servants, from appointing, designating, installing or presenting any person as Acting Vice Chancellor or Vice Chancellor of the Respondent University. 4. THAT this Honourable Court be pleased to Order the Respondent to preserve and produce the following documents with regard to the Claimant’s unlawful dismissal from employment; a. Council meeting notices, agendas, minutes and resolutions; b. Attendance lists and quorum confirmations; c. Any circulation resolutions and ratification records; d. Instruments appointing Council members; e. All records relating to the disciplinary process and intended appointment. 5. THAT pending the hearing and determination of this application and the main claim, the Court be pleased to order the maintenance of the status quo ante in respect of the office of the Vice Chancellor of the Respondent. 6. THAT the costs of this application be in the cause. 2 The application is premised on the grounds on its face and the Supporting Affidavit of the Applicant, Prof. Wangari Mwai, sworn on 25th March 2026. Page 2 of 31

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Claimant/Applicant’s Case 3 The Applicant avers that she was appointed as the Vice Chancellor of the Respondent University pursuant to a Letter of Appointment dated 1st March 2023. 4 She states that under the Respondent's Charter, issued under the Universities Act on 20 th December 2020, the Vice Chancellor is appointed by the University Council and serves within the institutional governance structure of the Council. 5 She avers that she accepted the appointment and faithfully discharged her duties professionalism, in accordance structure, her appointment Charter, the Respondent's with with letter, diligence the the Statutes and governance Respondent's (2022), the Universities Act and the Employment Act, 2007. 6 She contends that her position was a senior executive office within the Respondent's governance structure and subject to specific statutory protections under the Respondent's internal legal framework. 7 It is the Applicant's case that in or about July 2025, the Respondent initiated a disciplinary process against her comprising a first warning letter dated 28 th July 2025, a second warning letter dated 10 th November 2025 and a show cause letter dated 29th January 2026. Page 3 of 31

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8 She states that she satisfactorily responded to the show cause letter on or about 4th February 2026, providing a detailed defence. However, despite her cogent response, she was invited by letter dated 10th February 2026 to attend a disciplinary hearing before the Respondent's Council on 20th February 2026, which she honored, and fully presented her defence. 9 The Applicant states that upon conclusion of her presentation, she was required to step out of the proceedings. Thereafter, she was not informed of any resumed sitting, deliberations, vote or resolution, nor of any later vote, circulation resolution or ratification meeting at which the matter was finally decided. 10 She continued to serve diligently until 6 th March 2026 when she received a letter purporting to summarily dismiss her for alleged gross misconduct. 11 She avers that on 10th March 2026, her advocates on record lodged a formal protest against any purported appointment of an acting or substantive Vice Chancellor, demanded maintenance of the status quo and immediate disclosure of Council records, on the grounds that her purported dismissal was disputed in its entirety as unlawful, premature, procedurally irregular and contrary to her contract of employment, the University's governing instruments and the applicable law. Page 4 of 31

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12 The Applicant states that the protest was founded on the fact that no minutes of the meeting had been availed to her, no lawful Council resolution had been disclosed and no evidence of quorum had been provided. It is thus her belief that the decision-making process leading to her dismissal was opaque, un-procedural and legally invalid. 13 The Applicant avers that the Respondent, through its counsel, responded by a letter dated 11 th March 2026 dismissing her demand and purporting that the position of Vice Chancellor had been filled. 14 She contends that the Respondent's governing Statutes provide that the Vice Chancellor's employment may be terminated by six months' notice, yet she was summarily dismissed. 15 She further contends that the dismissal letter does not sufficiently particularize any conduct on her part amounting to gross misconduct, and that the disciplinary process is further tainted by irregular Council composition and lack of quorum in earlier proceedings, as particularized in her Memorandum of Claim. 16 It was stated that she has received information, substantiated by the Respondent's response, that the Respondent intends to appoint or install an Acting or substantive Vice Chancellor, and that unless restrained, Page 5 of 31

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the Respondent will create a fait accompli, rendering the suit nugatory. 17 The Applicant avers that she stands to suffer irreparable harm, including reputational damage and loss of office, which cannot be adequately compensated by damages. 18 It is the Applicant’s case that she has established a prima facie case with a high probability of success, that the balance of convenience tilts in favor of preserving the status quo pending the hearing and determination of the suit, and that it is fair, just and expedient that the orders sought be granted. 19 In response to the Respondent's replying affidavit sworn by Lucy Wairimu and dated 19th April 2026, the Applicant filed a Further Affidavit sworn on 29th May 2026. 20 She states that the Respondent has asserted that the orders sought cannot be granted because a new Vice Chancellor has already been appointed, albeit in an acting capacity. However, such an assertion does not defeat the Application. 21 She contends that the Respondent's own affidavit and attachment confirm that the purported appointment was made on 11th March 2026, one day after her advocates issued the formal protest and demand for maintenance of the status quo dated 10th March 2026. Page 6 of 31

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22 It is the Applicant's case that the timing of the appointment is not coincidental but demonstrates a deliberate and calculated attempt to defeat her rights and the anticipated court process, the Respondent having proceeded with full knowledge of the dispute, after receipt of a formal protest and in anticipation of imminent legal proceedings. 23 The Applicant avers that such conduct amounts to patent bad faith, abuse of process and an attempt to create a defence of fait accompli, and that the Respondent cannot rely on its own wrongful conduct to defeat the jurisdiction of this Court. 24 She avers that the Respondent's replying affidavit, and more so annexure LW-1 thereto, indicates that the impugned appointment is in an acting capacity for a period of three months. 25 It is the Applicant’s case that an acting appointment does not extinguish the office, and that on the face of it the office of Vice Chancellor has not been substantively filled. She contends that it remains within the power of this Court to restrain confirmation and preserve the office pending the disposal of the Application and determination of the suit. 26 The Applicant asserts that the Respondent's conduct demonstrates malice in that she was dismissed on 6 th Page 7 of 31

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March 2026 and a replacement purportedly appointed within five days. 27 Further, the Respondent's response to her protest letter is dated 11th March 2026, the same day as the purported appointment of an Acting Vice Chancellor, and that such speed and sequence of events point to a predetermined outcome and lack of good faith. 28 She avers that she is apprehensive that if the acting appointment is confirmed or entrenched, the office will be effectively filled, her claim for reinstatement rendered illusory and the suit ultimately rendered nugatory. She therefore urges this Court to preserve the substratum of the dispute. 29 The Applicant states that she is amenable to full discovery and production of all relevant documents at the pre-trial stage of the main suit. 30 She contends that the Respondent's reliance on disputed facts and refusal to provide documents at this stage reinforces the need for preservation orders and full disclosure at trial. 31 It is the Applicant’s case that the replying affidavit does not defeat the application but instead reinforces the urgency of intervention, the risk of irreparable prejudice and the need to preserve the subject matter. Page 8 of 31

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32 The Applicant avers that it is in the interest of justice that the orders sought be granted, as she stands to suffer irreparable harm including reputational damage and loss of office. Respondent’s Case 33 The Respondent opposed the application through the replying affidavit of Lucy Wairimu, its Human Resource Officer, sworn on 19th April 2026. 34 The Respondent states that the Applicant primarily seeks injunctive orders barring the Respondent from installing a new chancellor and maintaining the status quo for the pendency of the suit. 35 It is the Respondent's case that the orders sought cannot be granted as they have been overtaken by events, a new Vice Chancellor having already assumed office vide an appointment letter dated 11th March 2026. She contends that since injunctive orders can only be issued in respect of a future event and not a past event, prayers 2, 3 and 5 of the application are unavailable to the Applicant. 36 The Respondent avers that the Applicant was relieved of her duties in March and a new Vice Chancellor installed to avoid a managerial vacuum, such that the status quo as at the filing of the Claim was that a new Vice Chancellor was validly in office. Page 9 of 31

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37 It contends that overturning the appointment of the current Vice Chancellor at this stage would amount to condemning the Respondent unheard, by determining the Claim and granting prayers (a), (b) and (c) of the Claim through an interlocutory application. 38 It is the Respondent’s case that granting the said orders would be incompatible with Order 40 of the Civil Procedure Rules, as a temporary injunction is meant to safeguard against a future event and not to overturn a past action. 39 On the fourth prayer, the Respondent asserts that the same is frivolous, vexatious, scandalous and an abuse of the court process. It states that it shall endeavor to produce all germane documents in regard to the Claim in order to prove the integrity of the process leading to relieving the Applicant of her duties, and that such documents have their place as annexures to the intended Response to the Claim. 40 The Respondent maintained that discovery of documents has a place at the trial of the Claim, and that an interlocutory application cannot be used to compel full evidentiary disclosure prematurely. 41 The Respondent further contends that the Applicant's affidavit does not proffer any explanation whatsoever in support of the request for discovery, therefore, no valid Page 10 of 31

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reason has been tendered as to why the Court should exercise its jurisdiction to that end. 42 It is the Respondent's case that discovery is provided for under Rule 42(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which permits a party to apply for discovery at the pre-trial stage. 43 It avers that in seeking the said prayer, the Applicant is jumping the gun despite the statutory procedure on how to approach discovery, and that such an order would amount to petitioning the Court to curate the Respondent's defence, which is unfair and contrary to the rules of natural justice. 44 The Respondent contends that the prayer is premature, irrational and amounts to a fishing expedition, and urges the Court to resist any attempt to have it exercise its jurisdiction in respect of unwarranted requests that are unnecessary at this stage. 45 It is the Respondent’s case that the application stands overtaken by events and the Applicant has failed to justify the prayer for discovery, and is therefore undeserving of any of the orders sought. Claimant/Applicant’s Submissions 46 On the legal framework, the Applicant submitted that the Application is anchored on Articles 41, 47 and 50 of the Page 11 of 31

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Constitution, Sections 3, 12 and 20 of the Employment and Labour Relations Court Act and Sections 41, 43, 44 and 45 of the Employment Act, and that her rights to fair labour practices and fair administrative action are directly engaged. 47 She relied on Rule 17(5) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which she submitted permits an applicant, at any time in a suit, to apply for an interim or temporary injunction to restrain a respondent from committing a breach of contract or the injury complained of, and Rule 17(6), which vests the Court with discretion to grant an injunction on such terms as it deems fit. 48 She submitted that the principles governing the grant of interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court of Appeal for East Africa held that an applicant must show a prima facie case with a probability of success; that an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and that where the court is in doubt, it will decide the application on the balance of convenience. 49 She further relied on Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR for the proposition that Page 12 of 31

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the three conditions are: "separate, distinct and logical hurdles which the applicant is expected to surmount sequentially." 50 On prima facie case, the Applicant argued that a prima facie case does not require the Court to resolve all issues at the interlocutory stage, and that it suffices that the claim discloses a serious question to be tried which is neither frivolous nor vexatious. She submitted that her case is founded on several independent grounds, each sufficient on its own. 51 Firstly, she governing submitted Statutes that require the Respondent's termination of a own Vice Chancellor by six months' notice, yet she was dismissed by the letter of 6th March 2026 without any notice whatsoever. She contended that this alone constitutes a fundamental breach of the contractual framework governing her tenure and a violation of Section 45(1) of the Employment Act, which she submitted renders void any termination not compliant with the terms of the contract of service or the Act. She pointed out that the replying affidavit is conspicuously silent on this point. 52 Secondly, the Applicant submitted that Section 41 of the Employment Act mandates a fair hearing before termination, while Section 44 restricts summary dismissal to specific grounds of gross misconduct proved through a Page 13 of 31

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fair process. She argued that the disciplinary process was fundamentally flawed in that no lawful decision-making process, Council resolution, minutes or valid decision has been produced despite formal request; the disciplinary steps were allegedly undertaken by a Council sitting without the required quorum, which she contended invalidates all decisions made at such sittings; and no valid reasons constituting grounds for summary dismissal under Section 44 have been disclosed. 53 It is the Applicant’s submission that the Respondent's assertion that the documents will be produced at trial is an implicit acknowledgement that it cannot justify the dismissal at this stage, and that where an employer cannot produce even the basic decision-making records at the interlocutory stage, the inference of procedural defect is compelling. 54 Thirdly, the Applicant submitted that the office of Vice Chancellor carries both employment and administrative dimensions, thereby attracting Article 47(1) of the Constitution, which provides that: "Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair." 55 She contended that the withholding of Council minutes and resolutions, the failure to communicate reasons, the disregard of quorum requirements and the non- Page 14 of 31

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compliance with the statutory notice period cumulatively violate this constitutional guarantee. 56 Fourthly, the Applicant submitted that the sequence of events disclosed in the Further Affidavit materially strengthens her prima facie case by establishing bad faith on the part of the Respondent. She was dismissed on 6 th March 2026, her advocates protested and demanded maintenance of the status quo on 10 th March 2026, and on 11th March 2026, the very next day and the same day it responded to the protest, the Respondent appointed an Acting Vice Chancellor with full knowledge of the dispute and in manifest anticipation of these proceedings. She argued that such speed and sequence point to a predetermined outcome and a calculated attempt to create an irreversible fait accompli before the Court could be moved. 57 It is the Applicant’s submission submitted that courts, including this Court, have consistently recognized that a party cannot engineer a defensive fait accompli through unilateral action taken in bad faith and then invoke it as a shield against injunctive relief, as a party cannot benefit from its own wrong. 58 She relied on Gema Watho & Francis Njoroge Wanjiku v Kenya Airports Authority (2025) (unreported), where this Court granted conservatory orders restraining a recruitment process upon finding that re-advertisement of Page 15 of 31

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a position without explanation constituted a prima facie breach of constitutional standards, and argued that acting the day after a formal protest presents an even stronger basis for intervention. 59 On the second limb, the Applicant submitted that the Respondent's argument that the orders cannot issue because an acting appointment has been made is wrong in law. She argued that annexure LW-1 to the Respondent's own affidavit confirms that the appointment is in an acting capacity for three months, and reiterated the position in her Further Affidavit that: "An acting appointment does not extinguish the office and that on the face of it the office of Vice Chancellor has not been substantively filled. It remains within the power of this Honourable Court to restrain confirmation and preserve the office pending the disposal of this application and determination of the suit herein." 60 The Applicant submitted that prayers 2 and 3 seek to restrain a further or substantive appointment, an event that remains wholly in the future, and that the argument that the orders have been overtaken by events is therefore factually incorrect. She maintained that the urgency is heightened rather than diminished, since the three-month acting appointment may be confirmed or extended imminently, and should it crystallize into a substantive appointment during the pendency of the Page 16 of 31

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proceedings, the subject matter of the suit would be permanently destroyed. 61 She further submitted that it is a fundamental principle of equity that a party cannot take advantage of its own wrong, and that the Respondent created the very fait accompli it now relies upon. She cited E.A. Industries v Trufoods [1972] EA 420 for the proposition that a defendant who acts with full knowledge of the plaintiff's claim and rushes to create an irreversible situation before proceedings are commenced will not be permitted to plead that irreversibility as a ground for refusing relief. 62 It is the Applicant’s submission that Order 40 Rule 1 of the Civil Procedure Rules, relied upon by the Respondent, does not preclude the Court from preserving the status quo ante where the change was itself engineered in bad faith and in anticipation of proceedings, as the Court's injunctive jurisdiction extends to preventing the entrenchment of unlawful acts. 63 The Applicant submitted that the office of Vice Chancellor is unique, singular and highly specialized, being the chief executive and academic leader of the institution, and that the dignity, academic authority, institutional standing and professional reputation attached to it are incapable of monetary quantification. Page 17 of 31

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64 Reliance was placed on Mutuiri v Speaker, Laikipia County Assembly & another [2024] KEELRC 680 (KLR), where the Court granted a permanent injunction restraining the petitioner's position while contract her filling of the subsisted, recognizing that the unique nature of the office made reinstatement the primary remedy, one that would be illusory were the position permanently occupied by a successor. 65 It was submitted that the Applicant’s primary relief in the substantive claim is reinstatement, which would be rendered illusory and the suit nugatory should the acting appointment be confirmed or entrenched. 66 The Applicant submitted that the Court has a positive duty to prevent the destruction of the substratum of its jurisdiction, and that where the only impediment to reinstatement is occupation of the position by a person appointed during the pendency of proceedings, and in bad faith, the Court must preserve the position. She relied on Gladys Boss Shollei v Judicial Service Commission [2013] eKLR for the principle that interlocutory injunctive relief must be directed at preserving the Court's ability to grant effective relief at the substantive hearing. 67 On balance of convenience, the Applicant submitted that, should the Court entertain any doubt on the first two Page 18 of 31

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limbs, the balance of convenience firmly favours her. She reasoned that if the orders are refused and the new Vice Chancellor consolidates her position, reinstatement, even if ordered, would be practically impossible to implement without institutional chaos, rendering the harm to her asymmetric and irreversible. Conversely, if the orders are granted and she ultimately fails, the Respondent would simply proceed to appoint a Vice Chancellor at that stage, the position having merely been deferred and not foreclosed. 68 It is the Applicant’s submission that the Court must jealously guard against subversion of its process by a respondent who rushes to install a replacement five days after a contested dismissal, and that the University is better served by a Vice Chancellor whose tenure is legally secure than by one appointed in the shadow of pending litigation. 69 In answer to the contention that the orders have been overtaken by events, the Applicant submitted that the appointment is acting and the substantive or confirmed filling of the office remains a future event restrainable under prayers 2 and 3; that prayer 5 seeks maintenance of the status quo ante, which the Court has jurisdiction to restore where a change was effected in bad faith and in anticipation of proceedings; and that, to the extent Order 40 of the Civil Procedure Rules contemplates injunctions Page 19 of 31

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against future events, the confirmation or substantive appointment of the replacement Vice Chancellor has not occurred and remains injunctable. 70 On reinstatement, the Applicant conceded the general proposition that reinstatement is a substantive remedy not available at the interlocutory stage, but argued that the orders sought are prohibitory injunctions aimed not at restoring her to office but at preserving the office for the Court's eventual determination, such that the principle in Shollei does not bar the orders. 71 On the adequacy of damages, she submitted that the Respondent has not substantively addressed irreparability, and that reputational harm, loss of academic authority and the destruction of a professional legacy built over a career cannot be compensated in money. 72 On discovery, the Applicant submitted that she is amenable to full discovery and production of documents at the pre-trial stage under Rule 42(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, and that the Respondent's refusal to produce documents at this stage reinforces the need for preservation orders and full disclosure at trial. She indicated that she does not press prayer 4 at this interlocutory stage and reserves the right to apply for discovery at the pre-trial stage. Page 20 of 31

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73 It is the Applicant’s submission that all three limbs of the Giella test are cumulatively satisfied, and urged the Court to grant prayers 2, 3 and 5 of the application, with costs in the cause. Respondent's Submissions 74 The Respondent pointed out that the Applicant abandoned prayer 4 on production of documents. It submitted that the remaining prayers are for temporary injunctions, governed by the settled principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358, and it framed four issues for determination: whether the Application is overtaken by events, and whether each of the three Giella limbs has been satisfied. 75 On whether the application is overtaken by events, the Respondent submitted that the term of the Acting Vice Chancellor was extended on 12th June 2026 for a further three months, and the prayers seeking to prevent the appointment of a Vice Chancellor therefore cannot come into operation. 76 It relied on Stanley Kirui v Westlands Pride Limtied [2013] KEHC 6593 (KLR), where the court held: "If that is the case, the court cannot injunct what has already happened. I will be guided by the findings in case of Mavoloni company Ltd vs Standard Chartered Estate Management Ltd, Civil Appeal No. 266 of 1997 (1997) LLR Page 21 of 31

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5086, where the court held that 'an injunction cannot be granted once the event intended to be injuncted has been overtaken by events.' Similar findings were held in the case of Esso Kenya Ltd Vs Mark Makwata Kiya, Civil Appeal No. 69 of 1991 where it was stated 'an injunction cannot issue to restrain an event that has taken place.” 77 It submitted that this position was affirmed in Stephen Mbugua Mwagiru v Muthaiga Country Club Limited & 3 others [2018] KECA 580 (KLR), where the Court of Appeal upheld the refusal of an injunction because the event sought to be restrained had already occurred. It urged that equity does not act in vain, and that the Court ought not to exercise its discretion needlessly. 78 In response to the Applicant's contention that the office has not been substantively filled, the Respondent argued that the Applicant would have the Court hold the premier executive office of an entire university in abeyance pending the suit. It pointed to what it termed a selfcontradiction in the Applicant's case: while she contends that the suit would be rendered nugatory, she seeks reinstatement under prayer (c) of the Claim. 79 The Respondent submitted that the two positions cannot co-exist, since if reinstatement can issue, it matters not whether the position is filled. It relied on the excerpt cited with approval in Henry Morara Ongwenyi v Ethics And Page 22 of 31

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Anti-Corruption Commission & 8 others [2014] KEELRC 1296 (KLR)that: "Courts have ruled that a rush to filing of a position that has fallen vacant upon dismissal of that position's holder, does not render the remedy of reinstatement impracticable." 80 It urged the Court, in the exercise of its powers under Section 12 of the Employment and Labour Relations Court Act, to find that the filling of the position is no bar to the course of justice. 81 On whether a prima facie case has been established, the Respondent relied on Mrao Ltd v First American Bank of Kenya Ltd& 2 others[2003] eKLR, where the Court of Appeal held: "In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant's case upon trial." 82 The Respondent submitted that the Applicant must thus show a case with a probability of success, which warrants only a surface-level analysis of the evidence. It added that the Applicant has already been paid her dues, being Page 23 of 31

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accrued leave and salary arrears totaling Kshs. 927,039.19, disbursed on 11th May 2026. 83 It is the Respondent’s submission that the crux of the claim being wrongful summary dismissal, the Court must consider whether the components of a lawful dismissal are absent. It relied on Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR), where the Court Respondent framed the had genuine a question as: reason to "whether the warrant the Claimant's summary dismissal and whether in reaching its decision the Respondent employed fair procedure." 84 On procedure, it relied on Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] eKLR, where the Court held: "The ingredients of procedural fairness as I understand it within the Kenyan situation is that the employer should inform the employee as to what charges the employer is contemplating using to dismiss the employee... Secondly, it would follow naturally that if an employee has a right to be informed of the charges, he has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in person, writing, or through a representative... Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give other sanction." Page 24 of 31

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85 The Respondent submitted that Appendix 1 of the employment contract expressly provided that the items listed thereunder would constitute grounds for summary dismissal, and that the matter ought to be viewed through the lens of that contract. It argued that it complied with Section 41 as read with Section 44 of the Employment Act. The Applicant was served with two warning letters and a show cause letter granting her ten days to make written representations. She responded on or about 4 th February 2026. She was invited to an oral hearing with a representative of her choice, and she attended and presented her defence, all of which she admits at paragraphs 10 to 13 of her Claim. 86 It submitted that she does not impugn the constitution of the sitting of 20th February 2026, and that the Respondent considered her explanations over the following two weeks before communicating its decision in writing with reasons arising from the charges. It therefore urged that no prima facie case exists on procedure. 87 On substantive justification, the Respondent submitted that the Applicant was found to have committed gross misconduct, poor performance, breach of fiduciary duty and persistent disregard of lawful instructions, which are valid reasons under the contract and under Section 44(4) (c) and (e) of the Employment Act. Page 25 of 31

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88 In support thereof, it cited Koech v Co-operative Bank of Kenya Ltd [2026] KEELRC 1272 (KLR), where the Court, citing Lord Denning in British Leyland v Swift [1981] IRLR 91, held that the employer is only required to prove a valid and fair reason for dismissal and that: "The correct test is was it reasonable for the employers to dismiss? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair..." 89 It was submitted that the Applicant cost the Respondent over Kshs. 3,459,255 in court-guided settlements with irregularly hired staff, which she admitted at paragraph 2 of her response to the show cause letter. Further, she admitted to unilaterally changing the fee structure contrary to Statute IX of the University Statutes, to the late budget and missing quarterly report, to the unauthorized advertisement expenditure, and to the anomalies at the December 2025 graduation. 90 It is the Respondent’s submission that these failures occasioned significant loss to a struggling university, undermined the Council and exposed the institution to reputational risk, and that no reasonable employer would retain such an employee. The Respondent's position was that the procedure was followed, the reasons were valid, and the Applicant has no case. Page 26 of 31

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91 On whether irreparable injury has been demonstrated, the Respondent submitted that failure on this limb alone disentitles the Applicant to injunctive relief, relying on Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR: "If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant's claim may appear at that stage... The existence of a prima facie case does not permit 'leap-frogging' by the applicant to injunction directly without crossing the other hurdles in between." 92 It further relied on the Court's description in that case of irreparable injury: "Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant... An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy." Page 27 of 31

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93 The Respondent argued that although the Applicant pleads reputational damage and loss of office, she has specified a liquidated sum at prayer (d) of her Claim which she considers adequate to remedy her grievance, and her injury is therefore reparable on her own representation. 94 Reliance was placed on Esso Kenya Ltd v Mark Makwata Okiya[1992] eKLR, where the Court of Appeal held: "The respondent having pleaded breach of the agreement and prayed for damages, the Court ought to have denied him injunction and the order of reinstatement because his claim could have been quantified and be compensated by the award of damages..." 95 It also relied on Irungu v Kenya Pipeline Company Limited [2023] KEELRC 459 (KLR), where the Court declined an injunction on the basis that: "the Applicant has made a prayer for alternative relief for compensation in the form of salary and other emoluments for the unexpired term of five (5) years. In effect, he appreciates that the injury he is exposed to as a consequence of the Respondent's action is capable of being measured in damages... Consequently, the prayer for an injunction must fail." 96 On balance of convenience, the Respondent submitted that the balance of convenience lies in dismissing the Application, relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR), where Page 28 of 31

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Ombwayo J. held: "Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer." 97 It submitted that should the orders issue and the suit ultimately be determined in its favour, the Respondent would have been unable to appoint a Vice Chancellor upon the expiry of the acting term. The University would then be denied the guidance of its chief executive and suffer a leadership vacuum fatal to its management, with no qualified person to steer it and no one accountable for the duties of the office, while the Deputy Vice Chancellor would likely be overwhelmed. Conversely, were the orders declined and the Applicant ultimately to succeed, she would suffer no loss, since the interlocutory orders cannot reinstate her, and she could be compensated in full settlement of her grievance. It urged that there is greater danger in granting the orders than in declining them. 98 The Respondent Speaker, further Laikipia submitted County [2024] KEELRC 680 (KLR) that Assembly Mutuiri & v another is distinguishable, as the orders therein were final orders in the nature of a permanent injunction issued after full trial, and the office in contest, that of Clerk of the County Assembly, is a Page 29 of 31

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permanent and pensionable statutory position, whereas the instant relationship is contractual. 99 It is the Respondent’s submission that the Application is overtaken by events, that the Applicant has shown no procedural or substantive lapse to establish a prima facie case, that her alleged injury is compensable as evidenced by the liquidated claim at prayer (d), and that the balance of convenience lies against the grant of the orders. 100 I have considered the averments and submissions of the parties herein. The applicant seeks injunctive orders directed against the respondent barring them from appointing a substantive VC of the respondent. She has contended that she was unfairly terminated by the respondent and hence request the status quo be maintained pending the hearing and determination of the main claim. 101 From the pleadings herein, it is not disputed that the claimant was dismissed and among orders she prays be granted is an order for reinstatement. The respondents have averred that the prayer being sought has been overtaken by events as the position of the VC has been filled up albeit in an acting capacity. 102 From the evidence of the respondents they have not substantially filled up the position of VC. The respondents Page 30 of 31

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will not suffer any harm if the orders sought are granted given the current occupier is still in an acting position. 103 In order then not to render the entire claim nugatory and an academic exercise, I find the orders sought reasonable and I proceed to allow them to the extent that I order that an injunction do issue restraining the respondents, whether by itself, its council, board of trustees, agents or servants from appointing, designating, installing or presenting Vice any respondent’s person as University pending determination of this claim. Chancellor the of the hearing and The documents sought in prayer 4 of the application be granted as prayed. Costs of this application shall be in the cause. Dated, Signed and Delivered virtually at Nairobi this 6th Day of October 2026. HELLEN WASILWA JUDGE Page 31 of 31

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