[2019] KEELRC 677 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

PETITION NO. 47 OF 2019

IN THE MATTER OF ARTICLE 22(1)

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 2(1) & (4), 3, 10, 19(1) & (2), 20(1), 21(1), 22(2), 27(1), 28, 35, 47(1), 48, 73(2) AND 259(1) OF THE CONSTITUTION OF KENYA

BETWEEN

OKIYA OMTATAH OKOITI................................PETITIONER

VERSUS

CABINET SECRETARY, MINISTRY OF EDUCATION,

SCIENCE AND TECHNOLOGY................1st RESPONDENT

HON ATTORNEY GENERAL...................2nd RESPONDENT

AND

COUNCIL OF UNIVERSITY OF

NAIROBI............................................1st INTERESTED PARTY

PROF. WILLIAM OGARA..............2nd INTERESTED PARTY

PROF. JAMA A. MOHAMUD.........3rd INTERESTED PARTY

PROF. LYDIA W. NJENGA.............4th INTERESTED PARTY

PROF. JULIUS A. OGENGO...........5th INTERESTED PARTY

PROF. MADARA OGOT..................6th INTERESTED PARTY

PROF. ISAAC MBECHE..................7th INTERESTED PARTY

PROF. STEPHEN G. KIAMA..........8th INTERESTED PARTY

JUDGMENT

1. Okiya Omtatah Okoiti (Petitioner) moved the Court alleging that the decision by the Cabinet Secretary, Ministry of Education (1st Respondent) on 15 January 2019 to appoint the 2nd, 3rd and 4th Interested Parties to the positions of Deputy Vice-Chancellors of the University of Nairobi while not recommended by the Council of the University of Nairobi (1st Interested Party) were contrary to the national values (article 10), equality before the law (Article 27), access to information (Article 35), fair administrative action (Article 47) and responsibilities of leadership (Article 73).

2. The Petitioner also contended that the decision by the 1st Respondent was discriminatory, an abuse of power and violated the relevant provisions of the Universities Act, 2012.

3. The Petition was filed together with a motion seeking orders staying the decision of the 1st Respondent but on 28 February 2019, the Court directed that in lieu of hearing the application, the hearing of the Petition be accelerated.

4. Consequently, the Court directed the Respondents and Interested Parties to file and serve their responses to the Petition before 15 March 2019.

5. When the parties appeared in Court on 15 March 2019, the Respondents confirmed having filed and served a replying affidavit.

6. At the same session, the Petitioner sought for leave to file a further affidavit and the Court granted him leave to to file and serve a further affidavit, and submissions before 3 April 2019. The Respondents and Interested Parties were directed to file and serve submissions before 10 April 2019.

7. The Court directed that the submissions be highlighted on 3 June 2019.

8. The Petitioner only filed his submissions on 31 May 2019 and therefore the highlighting could not proceed on 3 June 2019 as the Respondents sought for more time to file their submissions.

9. The Respondents filed their submissions on 10 June 2019 and highlighting was taken on 8 July 2019.

10. The Court has considered all the material placed on the record including the List of Authorities (Interested Parties did not participate in the proceedings despite service) and condensed the Issues for determination into 2, whether the Petitioner had locus standi and whether the 1st Respondent acted ultravires.

Background

11. On 10 January 2019, the 1st Interested Party wrote to the 1st Respondent recommending that the 5th Interested Party be appointed as Deputy Vice-Chancellor, Academic Affairs; 6th Interested Party be appointed as Deputy Vice-Chancellor for Research, Production and Extension; the 7th Interested Party, Deputy Vice-Chancellor for Finance, Planning and Development, and the 8th Interested Party as Deputy Vice-Chancellor, Human Resource and Administration.

12. In the aforesaid recommendation, the 1st Interested Party outlined an order of merit (ranking of performance) of the 3 top interviewees for each of the positions, and also drew the attention of the 1st Respondent to section 35(1)(a)(v) of the Universities Act, 2012.

13. Upon receipt of the recommendations, the 1st Respondent held a meeting on 14 January 2019 with the Ministry’s Chief Administrative Secretary/Principal Secretary in charge of University Education, the Chancellor of the University of Nairobi, the Chair of the 1st Interested Party, and the Vice-Chancellor of the University of Nairobi.

14. At the meeting, the 1st Respondent requested to be furnished with the curriculum vitae of top 3 candidates for each position.

15. Upon receipt of the curriculum vitae, the 1st Respondent constituted a Tenure Review Committee which met on 15 January 2019 to consider/review the proposed appointments.

16. The Tenure Review Committee on its part recommended to the 1st Respondent that the 2nd, 3rd, 4th and 5th Interested Parties be appointed as Deputy Vice-Chancellors for Human Resource and Administration; Finance Planning and Development; Research, Production and Extension and Academic Affairs respectively.

17. On the same day, the 1st Respondent wrote directly and severally to the 2nd,3rd,4th and 5th Interested Parties notifying them of their appointments as Deputy Vice-Chancellors.

18. The 1st Interested Party got wind of the appointments and caused a meeting to be held on 24 January 2019 to discuss the appointments.

19. The 1st Interested Party noted that except for the position of Deputy Vice-Chancellor, Academic Affairs (5th Interested Party), all the other appointees were not those it recommended.

20. The 1st Interested Party took the view that the appointments were in violation of section 35(1)(v) of the Universities Act, 2012.

21. Consequently, the 1st Respondent resolved not to issue formal contracts to the 2nd, 3rd and 4th Interested Parties and sought that the 1st Respondent withdraw the appointments.

22. The Chair of the 1st Interested Party therefore communicated its reservations to the 1st Respondent on the same day and sought for a meeting. Another letter was directed to the Attorney General (2nd Respondent) seeking his legal opinion.

23. The 2nd Respondent replied to the 1st Interested Party’s letter on 28 January 2019, seeking for time to get views from the 1st Respondent before giving its legal opinion.

24. The opinion did not come, nor did the 1st Respondent grant the 1st Interested Party’s request for a meeting, and on 20 February 2019, these legal proceedings were instituted.

Locus standi

25. The Respondents contested the Petitioner’s locus standi to institute the legal proceedings.

26. In the view of the Respondents, the Petition did not demonstrate any public interest because the persons affected by the decision of the 1st Respondent were the Interested Parties. The dispute, it was urged fell within the arena of private law.

27. Article 22(1) & (2) of the Constitution has expanded the doctrine of locus standi beyond the traditional understanding of the concept, more so where there are allegations of violations of constitutional rights and freedoms.

28. The office of a Deputy Vice-Chancellor is a public office and the holder thereof a public officer. Chapter 13 of the Constitution has elaborately set out the values and principles of public service and these include fair competition and merit in appointments, adequate and equal opportunities in appointments and promotions and representation of Kenya’s diverse communities.

29. Good governance, integrity, transparency and accountability are national values which equally imbue the public service.

30. The 1st Respondent holds a state and public office and is bound to consider the national values and principles and the values and principles guiding recruitment into the public service.

31. The Petitioner contended that the 1st Respondent, the Cabinet Secretary for Education appointed to public office as Deputy Vice-Chancellors persons who were not recommended by the Council of the University of Nairobi, a function given to the Council by statute.

32. Transparency and accountability in recruitment in the public servicehas constitutional underpinnings. The offices given roles to play in such recruitment are bound by the national values, principles as well as principles guiding the public service.

33. In the view of the Court, the questions posed in these proceedings which implicate recruitment to the higher echelons of public universities are well within the sphere of public interest, and transcend the private law interests of the Interested Parties.

34. The Court is therefore of the view that the Petitioner as well as the Petition herein meets the threshold contemplated by Articles 22 and 258 of the Constitution.

Whether 1st Respondent abused her office/acted ultravires

35. Issues 2 and 3 as identified by the parties spoke to the general question whether the 1st Respondent had any discretion to reject the recommendations of the 1st Interested Party.

36. In attempting to explain why she did not complywith the recommendations of the 1st Interested Party, the 1st Respondent asserted in her replying affidavit that she was cognisant of the national values and principles which require representation of the face of Kenya, gender non-discrimination, inclusiveness, equity, protection of the marginalised in implementing public policy, and that she therefore sought for an evaluation of the recommendations by a Ministerial Tenure Review Committee before making the appointments.

37. According to the 1st Respondent, she acted lawfully when making the appointments. She also drew the attention of the Court to a Circular referenced Delegation of Public Service Commission Human Resource Powers and Functions and Guidelines on Terms and Conditions of Service for State Corporations’ Chief Executive Officers, Chairmen and Board Members, Management Staff and Unionisable Staff.

38. The powers and limits thereof of the Cabinet Secretary for Education in the appointment of Vice-Chancellors and Deputy Vice-Chancellors for public universities under the Universities Act, 2012 are not novel.

39. Those powers have been applied and interpreted by the High Court in R v Cabinet Secretary, Ministry of Education, Science and Technology & 3 Ors ex parte Njomo John (2017) eKLR and in Josphat K.Z. Mwatelah v Technical University of Mombasa Council & 2 Ors (2017) eKLR.

40. In both decisions, the Courts considered the provisions of section 39(1)(a) of the Universities Act (similar to section 35 now under consideration) and section 51 of the Interpretation and General Provisions Act, and concluded that the Cabinet Secretary, Ministry of Education lacked the power to appoint a Vice-Chancellor without a recommendation to appoint.

41. The 1st Interested Party’s letter of recommendation and dated 10 January 2019 was express that

AS provided for in the Act and having duly completed the competitive recruitment process for the various positions of Deputy Vice Chancellors (DVC), the Council now conveys its resolutions recommending the best candidates for appointment to the respective DVC positions.(my emphasis).

42. The best candidates were the 5th Interested Party as Deputy Vice-Chancellor for Academic Affairs; 6th Interested Party as Deputy Vice-Chancellor for Research, Production and Extension; 7th Interested Party as Deputy Vice-Chancellor, Finance, Planning and Development, and 8th Interested Party as Deputy Vice-Chancellor Human Resource and Administration.

43. The 1st Respondent did not approve of the recommendations and opted to appoint the 2nd to 4th Interested Parties. These persons were not recommended by the 1st Interested Party.

44. In the view of the Court, it was not lawful for the 1st Respondent to go beyond the list of the recommended persons or even to consider those not recommended even if they participated in the interviews.

45. In going beyond the recommendations of the 1st Interested Party, the Court is of the view that the 1st Respondent acted ultra vires.

46. According to the Court, the most which was expected of the 1st Respondent was to make her reservations with the reasons thereto known to the 1st Interested Party, and request for reconsideration, if at all.

47. Another option which was open to the Cabinet Secretary was to seek a legal interpretation from an appropriate adjudicative body, if she felt that the values and principles underpinning public service recruitment were violated by the 1st Interested Party in making the recommendations.

48. In this Court’s view, an office given the function or mandate to formally appoint on recommendation of another person has an obligation to seek the intervention of the Courts when it strongly believes or has reasons to demonstrate that the recommendations or recommended persons did not meet some Constitutional requirement.

49. It is regrettable that the 1st Respondent snubbed the request from the 1st Interested Party for consultations after it raised its concerns about the lawfulness of her decision.

50. Before concluding, one observation.

51. The Court has looked at the Circular on Delegation relied on by the Respondents. If at all it applied to the recommendations from the 1st Interested Party, the 1st Respondent as an Authorised Officer, should have utilised the provision in clause 4. 3 thereof after declining to approve the recommendations, and to refer the list back to the 1st Interested Party

52. The Circular, in the view of the Court, could not assist the Respondents case as urged.

Conclusion and Orders

53. From the foregoing, the Court finds and holds that the Petitioner has satisfied the burden of proving his case to the required standard, and the Court issues orders in the following terms

(i) A declaration do and is hereby issued that the actions of the 1st Respondent in not acting on the recommendations of the 1st Interested Party violated the Constitution and are null and void.

(ii) An order of certiorari is hereby granted bringing into Court and quashing the 1st Respondent’s letters referenced REF: MHEST/CONF/2/1/VOL. 115 and dated January 15th, 2019 purportedly appointing the 2nd, 3rd and 4th Interested Parties to various Deputy Vice-Chancellor positions at the University of Nairobi.

(iii) An order of mandamus is hereby issued directing and compelling the 1st Respondent to issue appointment letters to the individuals recommended for appointment by the 1st Interested Party and who emerged top with the highest marks in the competitive interview process to fill various Deputy Vice-Chancellor positions at the University of Nairobi.

54. There have been previous proceedings involving the 1st Respondent where similar legal issues were raised and determined but the same appear not to have served as a beacon.

55. The 1st Respondent to pay the Petitioner costs on half scale.

Delivered, dated and signed in Nairobi on this 7th day of October 2019.

Radido Stephen

Judge

Appearances

For Petitioner Mr. Odongo instructed by Chiggai, Alakonya, Lusigi & Odongo LLP Advocates

For Respondents Ms. Wangeci, State Counsel, Office of the Hon. Attorney General

Court Assistant Lindsey