https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1356

REPUBLIC OF KENYA IN THE EMPLOYMEENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E014 OF 2024 IN THE MATTER OF THCHE CONSTITUTION OF THE REPUBLIC OF KENYA, IN THE MATTER OF ARTICLES 2(1), 10 (2) (b), 20, 21,22,23,27, 47, 41, 232, 258, 259 OF THЕ CONSTITUTION OF KENYA 2010 AND IN THE MATTEIER OF SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT AСТ, 2011 AND IN THE TI MATTER OF SECTION 5 OF THE EMPLOYMENT AND LABOUR RELATIONS ACTIONS ACT 2011 AND IN THE MATTER OF SECTIONS 4 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF THE UNIVERSITIES ACT, 2012 Prof. MANYASA J.O. NANDI…………………………………….PETITIONER/APPLICANT -VERSUS- EZEKIEL MACHOGU, CABINET SECRETARY MINISTRY OF EDUCATION………………………....1ST RESPONDENT DR. BEATRICE MUGANDA INYANGALA, PRINCIPAL SECRETARY STATE DEPARTMENT FOR HIGHER EDUCATION & RESEARCH...................................................................2ND RESPONDENT DR. BERNADETTE MUNGAI, CHAIRMAN KAFU UNIVERSITY COUNCIL…………………………………………………………3RD RESPONDENT PROF MARY O. ABUKUTSA ONYANGO…………………………………… 4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant filed an application by way of a Notice of Motion brought under Articles 10, 47, 159 and 232 of the Constitution of Kenya; Sections 5 & 6 of the Judicature Act; Section 12 of the Employment and Labour Relations Court Act; Order 51 Rule 1 of the Civil Procedure Rules; and all other enabling provisions of the law for ORDERS: 2. Spent 3. THAT this Honourable Court be pleased to take judicial notice and record that the interim "status quo" orders issued by the Court of Appeal in Civil Application No. E028 of 2025 – Cabinet Secretary for Education & 2 others v. Prof. Nandi & another have lapsed, and that no appeal is pending before the Court of Appeal touching on this matter, as confirmed by the Court of Appeal's correspondence dated 16/10/2025 and 27/10/2025. 4. THAT the Honourable Court be pleased to reinstate and proceed with the Petitioner's pending Application for contempt of court dated 13/1/2025. 5. THAT in view of the lapse of the Court of Appeal's interim orders and confirmation that no appeal is pending, this Honourable Court be pleased to proceed to conclude and deliver its determination on the pending contempt proceedings, and to issue such orders as are necessary to enforce compliance with its judgment of 19/12/2024. 6. THAT the Honourable Court do issue such further or consequential orders as may be necessary to give full effect to its judgment, including: a) Directing the 3rd Respondent and Council of Kaimosi Friends University to forthwith implement the judgment and appoint the Petitioner as Vice Chancellor in accordance with Article 232 of the Constitution; b) Prohibiting any person from purporting to exercise the powers or functions of Vice Chancellor in violation of the said judgment; and c) Declaring any administrative acts, meetings, or decisions undertaken in contravention of this Court's orders to be null and void. 1. THAT the Cabinet Secretary, Ministry of Education, be directed to personally ensure compliance and file an affidavit of compliance within seven (7) days. 2. THAT this Honourable Court be pleased to declare that the Petitioner's lawful appointment, having been recognized and affirmed by the orders of this Court, created a legitimate expectation that the Respondents would implement the same by facilitating his assumption of office and payment of all remuneration and benefits attached thereto from the effective date of the appointment. 3. THAT the Respondents' continued failure and neglect to implement the said orders constitutes a violation of the Petitioner's legitimate expectation. 4. THAT this Honourable Court do issue appropriate enforcement directions, including but not limited to orders compelling immediate implementation. 5. THAT the costs of this Application be provided for. Grounds of the Application 1. This Honourable Court delivered its Judgment on 19/12/ 2024, inter alia declaring unlawful the recommendation and appointment of Prof. Mary O. Abukutsa Onyango as Vice Chancellor of Kaimosi Friends University, and directing the 3rd Respondent to appoint the Petitioner in conformity with the Constitution. 2. The Respondents have failed and/or neglected to comply with the said judgment despite being fully aware of and duly served with the same. Although the Respondents obtained interim stay and "status quo" orders dated 25/3/2025 and 4/7/2025 in Civil Applications Nos. E010 and E028 of 2025 before the Court of Appeal, the said orders were expressly conditional upon the filing of a Record of Appeal within thirty (30) days. 3. No Record of Appeal was filed within the period prescribed, and the Court of Appeal has, through official correspondence dated 16/10/2025 and 27/10/2025, confirmed that no appeal is pending. 4. Consequently, the "status quo” orders have lapsed by effluxion of time, and the judgment of this Honourable Court delivered on 19th December 2024 stands in full force and effect. 5. Unless the pending contempt proceedings are urgently reinstated and concluded, the continued disobedience by the Respondents will render this Court's judgment nugatory and erode public confidence in the rule of law and in the authority of judicial orders. 6. Upon the lawful appointment of the Petitioner as directed and recognized by this Honourable Court, the Petitioner had a legitimate expectation that Respondents would forthwith implement the said appointment, facilitate assumption of office, and accord him all the emoluments, benefits, and privileges the his attached thereto. 7. The continued inaction and disregard of this Court's orders by the Respondents amount to an abuse of due process, a violation of the Petitioner's legitimate expectation, and a denial of fair administrative treatment contrary to Article 47 of the Constitution. 8. The Respondents' conduct also undermines the authority, dignity, and effectiveness of this Honourable Court. 9. In support of the application, the applicant annexed the appealed judgment, 2 rulings of the court of appeal granting status quo in the matter, and correspondence with the Court of Appeal Deputy Registrar. 10. The application was opposed by the respondents to the effect that the matter was subjudice. 11. While the application was pending, an interested party filed a notice of motion application dated 12th March 2026 seeking the following orders- 12. THAT this Honourable Court be pleased to formally take note that the Interested Party was admitted into these proceedings by the Court on 22nd January 2025 by filling a Motion application dated 30th December, 2024. 13. THAT this Honourable Court be pleased to take judicial notice of the stay orders issued by the Court of Appeal in Civil Application No. E010 of 2025 and Civil Application No. E028 of 2025 staying execution of the Judgment delivered on 19th December 2024 and staying further proceedings in this Court pending the hearing and determination of the intended appeal. 14. THAT this Honourable Court be pleased to note that the Interested Party’s Application dated 30th December 2024 seeking Stay of Execution and Review of the Judgment remains pending and has not been heard due to the subsisting orders of the Court of Appeal. 15. THAT this Honourable Court be pleased to direct that the Interested Party’s pending applications be heard first once the orders of the Court of Appeal are vacated or the appeal is determined. 16. THAT this Honourable Court be pleased to issue such further directions as may be necessary for the just and orderly conduct of these proceedings. 17. THAT Costs of this Application be in the cause. 18. The said application by the interested party was grounded on the following grounds that on 31st December 2024 the Interested Party filed an application seeking for Stay of execution of the Judgment delivered on 19th December 2024, and Review of the said Judgment. That on 22nd January 2025 this Honourable Court (Nduma J.) admitted the Applicant as an Interested Party in these proceedings. That the Applicant’s prayers for stay and review were not heard due to subsequent proceedings before the Court of Appeal. That the Court of Appeal on 4th June 2025 and 6th August 2025 issued orders staying execution of the Judgment and staying further proceedings in this Court pending the determination of the intended appeal. That the said orders of 6th August, 2025 remain valid and have not been vacated or set aside. That on 9th March 2026 when the matter came before this Honourable Court, parties incorrectly indicated that the Applicant was not an Interested Party despite the order of this Court issued on 22nd January 2025. That it is necessary for the record of this Court to reflect the correct procedural status of the Interested Party and the subsisting orders of the Court of Appeal.That unless this Honourable Court clarifies the procedural position, there is a risk of proceedings being conducted in disregard of the Court of Appeal orders. That this Application is made in good faith and in the interest of justice. 19. The applicant stated that they had no interested party at the lower court. Justice Khaminwa said the interested party had been joined. On perusal of the judgment dated 19th December 2024 I did not find evidence of participation of the interested party . I further perused the court CTS and did not find order admitting the interested party post the judgment. The interested party stated as follows- ‘THAT on 31st December 2024, I filed an Application before this Honourable Court seeking, inter alia: 1) To be enjoined in these proceedings as an Interested Party, 2) Stay of execution of the Judgment delivered on 19th December 2024, and 3) Review of the said Judgment. 3. THAT on 22nd January 2025, this Honourable Court (Hon. Justice Nduma Nderi) allowed my application for joinder and admitted me as an Interested Party in these proceedings. 4. THAT my Applications for Stay of Execution and Review have not been heard and determined due to subsequent proceedings before the Court of Appeal relating to the said Judgment, (Attached and marked SIS-1 is a copy of the application dated 30th December, 2024)’. The found Order of joinder was not annexed. The petitioner denied their joinder. The court then finds the interested party is a stranger to these proceedings. 20. On merit of the application the Court established that the Court of Appeal issued the following Order on the 6th August 2025 In The Court Of Appeal At Nairobi(Coram: Kiage, Muchelule & Korir, JJ.A.)Civil Application No. E010 Of 2025 Between The Cabinet Secretary Ministry of Education and Others V Prof. Manyasa J. O. Nandi and Another being an application seeking stay of execution of the judgment and orders of the Employment and Labour Relations Court at Nairobi (N. Nderi, J.) dated 19th December 2024 in ELRC Petition No. E014 of 2024- ‘ORDER OF THE COURT Mr. Eredi, the learned Chief State Counsel appearing for the 1st and applicants informs us that a related application, namely, Civil Application No. E028 of 2025 was heard between the parties and the ruling was delivered on 4th July 2025. That ruling ordered that the status quo as regards the Office of Vice Chancellor of Kaimosi Friends University (the 3rd applicant) shall be maintained, and that neither of the respondents herein shall be appointed pending the hearing and determination of the intended appeal. In the result, the learned counsel requests that the same order do apply to this matter before us .Dr. Oloo, learned counsel for the 1st respondent, and Ms. Amutavi, learned counsel holding brief for Mr. Okatch, for the 1st respondent are not opposed to the said order. The said order of status quo shall apply to this matter. We direct further that the applicants shall file and serve their record of appeal within 30 days of today, and that the matter shall thereafter be listed for Case Management, together with the appeal filed by the appellants/applicants Civil Application No. E028 of 2025. Thereafter, the matter shall be heard as consolidated appeals. Costs of this motion shall be in the intended appeal. Orders accordingly. Made at Nairobi this 6th day of August 2025 P.O. KIAGE JUDGE OF APPEAL A.O. MUCHELULE JUDGE OF APPEAL W. KORIR JUDGE OF APPEAL’ 1. It is true the applicant received communication authored by one Hon Musumba Alfa, Assistant Deputy Registrar Court of Appeal Nairobi in response to their inquiry of whether the appeal had been filed as follows-‘ Kindly note that both applications have ben finalized and no appeal has bene filed.’ The court finds that the said judicial officer was not the author of the status quo order. The said order by the Court of Appeal had no time limit. I find in the circumstances the Order is in operation and only the Court of Appeal bench can set their order aside. The applicant ought to make the instant application if they so desire before the Court of Appeal for determination on whether to vacate the status quo order or not. The court declines to exercise jurisdiction for that reason and strikes out the application dated 27th October 2025 for being subjudice. 2. I have perused the application by the interested party dated 12th March 2026 and find that the Order above determines the fate of the application by the interested party, which is struck off for lack of evidence of locus standing in the matter. I decline to handle any application in the file until the Court of Appeal dispenses with the appeal. I make no order as to costs. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Applicant- Dr Oloo 4th Respondent- Ms Mutavi Interested party- Dr Khaminwa represented by Maliachi