https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2003

Orata v Chairman, University of Nairobi Council & 2 others (Judicial Review Miscellaneous Application E090 of 2025) [2026] KEELRC 2003 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2003 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Miscellaneous Application E090 of 2025 JW Keli, J July 15, 2026 Between Prof Duke Omondi Orata Applicant and Chairman, University Of Nairobi Council 1st Respondent Public Service Commission 2nd Respondent Cabinet Secretary, Ministry Of Education 3rd Respondent Ruling 1.The ex parte applicant, Prof Duke Omondi Orata, further to the substantive Notice of Motion dated 7th January 2026 for judicial review orders under Order 53 of the Civil Procedure Act, filed an application under a certificate of urgency via Notice of Motion dated 9th July 2026, where the judgment is due for delivery on 29th July 2026, seeking the following orders.a.Spentb.That pending the interpartes hearing and determination of this Application, this Honourable Court be pleased to issue an order staying and/or restraining the 1st Respondent whether by itself, its agents, servants or employees or any person acting under their authority from swearing-in, installing or in any manner giving effect to the appointment of the person purportedly appointed as Vice-Chancellor of the University of Nairobi on 17th July 2026 pursuant to the impugned recruitment process.c.That pending the delivery of the judgement of this Honourable Court scheduled for 29th July 2026, this Honourable Court be pleased to issue an order staying and/or restraining the 1st Respondent whether by itself, its agents, servants or employees or any person acting under their authority from swearing-in, installing or in any manner giving effect to the appointment of the person purportedly appointed as Vice-Chancellor of the University of Nairobi.d.That pending the delivery of the judgement of this Honourable Court on 29th July 2026, the Respondents be directed to maintain the status quo as at the date of reinstatement of this judicial review proceedings on 25th March 2026, with respect to the office of the Vice Chancellor, University of Nairobi.e.That pending the delivery of the judgement of this Honourable Court on 29th July 2026, the Respondents be restrained from taking any further administrative, ceremonial or legal steps intended to complete, perfect, operationalize or give effect to the impugned appointment of the Vice Chancellor.f.That this Honourable Court be pleased to issue such further orders as may be necessary to preserve the substratum and integrity of the pending Judicial Review proceedings.g.That costs of this Application be provided for. 2.Grounds of the applicationa.That the legality of the impugned recruitment and appointment process remains pending determination by the Court and this Honourable Court has reserved judgment for delivery on 29th July 2026.b.That the 1st respondent has, while fully aware that judgement is pending, notified members of staff of the University and other stakeholders that the swearing-in of the purported Vice-Chancellor shall take place on 17th July 2026, prior to the delivery of this Honourable Court's judgment.c.That the intended swearing-in constitutes the final implementation and culmination of the impugned recruitment and appointment process which is the very subject matter of these proceedings.d.That the intended swearing-in will fundamentally alter the prevailing status quo and destroy the substratum of these proceedings, thereby rendering the Court's pending judgment nugatory, academic and incapable of practical enforcement.e.That under the Constitution of Kenya, 2010, this Honourable Court is enjoined to grant conservatory and interim relief to preserve the efficacy of its proceedings and safeguard the authority of the Court. As held by the Supreme Court in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) conservatory orders are intended to uphold the adjudicatory authority of the Court, preserve the orderly functioning of public institutions and serve the public interest.f.That the Supreme Court in the above-mentioned decision further held that conservatory relief should issue where necessary to preserve the subject matter of litigation and ensure that judicial proceedings are not rendered nugatory, principles which are directly applicable to the present application.g.That the 1st respondent is fully aware that judgment has been reserved for 29th July 2026, yet has elected to proceed with the swearing-in on 17th July 2026, thereby seeking to overtake the Court's pending reserved judgment and create irreversible legal consequences before the Court has pronounced itself on the legality of the impugned recruitment process.h.That in Maurice Omurwa Magembe & another v Kenyatta University & 5 others [2021] KEHC 2080 (KLR), the High Court held that the purpose of a conservatory order is not merely to restrain a party, but to preserve the existing state of affairs and the subject matter of the dispute so that the proceedings are not rendered nugatory. The Court observed that a conservatory order enables the Court to maintain the status quo and existing circumstances to ensure that the rights in issue remain capable of protection and enforcement upon determination of the proceedings, and that the litigation does not become a futile academic exercise. The Applicant contends that unless the swearing-in scheduled for 17th July 2026 is stayed pending the delivery of judgment on 29th July 2026, the 1st Respondents will fundamentally alter the status quo by completing the impugned appointment process, thereby creating a fait accompli and depriving the Court’s pending judgment of practical efficacy.i.That the 1st Respondent will suffer no prejudice if the swearing-in is deferred for the short period pending judgement on 29th July 2026, whereas the Applicant stands to suffer substantial and irreparable prejudice should the impugned decision be implemented before judgment.j.That public interest favours preserving the authority, dignity and efficacy of the Court's adjudicative process rather than permitting implementation of a disputed administrative decision whose legality is awaiting judicial determination.k.That unless the conservatory orders sought are granted, the Applicant's right to an effective remedy and the Court's supervisory jurisdiction over administrative action will be substantially undermined.l.That it is just, equitable and expedient that this Honourable Court grants the orders sought.m.That the costs of this application be provided for.n.That this Honourable Court be pleased to issue any other orders or directions as it may deem fit and just to grant. 3.In addition, the applicant filed his affidavit sworn on 9th July 2026, in which he annexed a copy of a memorandum by the University of Nairobi to members of staff. The memorandum notified the staff that the installation ceremony of the 9th Vice Chancellor would take place on Friday, 17th July 2026, at 8:00am at Taifa Hall, Main Campus, and directed invited guests to be seated by 7:30 am. The applicant promptly filed this application to stay the installation on the following day, 9th July 2026, pending the delivery of judgment in the main suit, scheduled for 29th July 2026. 4.The applicant stated that the reason for seeking the order is to preserve the subject matter of litigation and to ensure that judicial proceedings are not rendered futile. The applicant further stated as follows: "THAT I am further advised by my advocate, which advice I verily believe to be correct, that unless this Honourable Court intervenes, the Respondents will have created a fait accompli before the delivery of judgment, thereby substantially impairing the effectiveness and practical utility of the Court’s pending determination." 11. "THAT this application does not seek to reopen the merits of the dispute or invite the Court to reconsider the issues already argued by the parties." 12. "THAT this application seeks only to preserve the existing state of affairs so that the Court’s reserved judgment remains capable of effective implementation upon delivery." 13. "THAT the Respondents will suffer no prejudice if the installation ceremony is deferred until after the delivery of judgment on 29th July 2026." 14. "THAT, on the other hand, if the intended installation proceeds before judgment is delivered, the Applicant will suffer grave prejudice, and the Court’s judgment risks being rendered futile and reduced to an academic exercise." 15. "THAT it is therefore just, equitable, and in the public interest that this Honourable Court grants the orders sought." 5.The court certified the application as urgent, ordered it to be served for response and fixed the same for a hearing in inter partes on the 14th July 2026. 6.The impugned memorandum by the University of Nairobi to its staff was dated 8th July 2026 and stated as follows-‘July 08, 2026 All Staff RE: INSTALLATION CEREMONY OF THE 9TH VICE CHANCELLOR, ENG. PROF. AYUB N. GITAUThis is to hereby notify the University Community that following the appointment of Eng. Prof. Ayub N. Gitau as the 9th Vice Chancellor of the University of Nairobi, the Installation Ceremony will be held on Friday, July 17, 2026, commencing at 8:00 a.m. at Taifa Hall, Main Campus. The Installation Ceremony marks a significant milestone in the history of the University and will be conducted in accordance with the University's statutes, traditions, and established protocols. The occasion is expected to bring together distinguished guests, members of the University community, Government officials, development partners, alumni, and other key stakeholders to celebrate the installation of Eng. Prof. Ayub N. Gitau as the University's 9th Vice-Chancellor. The University Community is requested to note the date and make the necessary arrangements to participate in the ceremony. All guests should be seated in Taifa Hall by 7.30 am.’ 7.The 1st respondent filed a replying affidavit in opposition to the application, sworn by Prof. Chacha Nyaigotti- Chachа and filed on even date. The response was as follows, inter alia, -‘THAT, the said the Applicant's certificate of urgency, the Notice of Motion and Supporting Affidavit are about, three issues, namely: -a)The competitive recruitment and appointment of Eng. Prof. Ayub N. Gitau as the 9th Vice-Chancellor ,University of Nairobi,b)The scheduled ceremonial installation and assumption of office of Eng. Prof. Ayub N. Gitau as the 9th Vice-Chancellor and Chief Executive Officer of the University of Nairobi on 17th July, 2026, andc)The alleged reinstatement of JR ELRCJR/E090 of 2025 on 25th March, 2026 and the pending judgment reserved on 29th July, 2026.That, the First Respondent wishes to state that the application and the supporting affidavit are desperate attempts to relitigate a matter already decided and finalized on merits by a court of competent jurisdiction on the exact same matter in the Employment And Labour Relations Court At Nairobi Petition No. E174 Of 2025, Prof. Francis Jackim Mulaa-Versus-University of Nairobi Council, Prof. Margaret Jesang Hutchinson, PHD, Cabinet Secretary For Education, Principal Secretary, State Department For Education And Research and The Hon. Attorney General. 5. THAT, under section 36 of the Universities Act 2012, a Council of the First Respondent consist of nine persons appointed by the Cabinet Secretary, namely:- The Chairperson; The Principal Secretary in the Ministry for the time being responsible for the university education; The Principal Secretary in the Ministry for the time being responsible for Finance; Five members appointed by the Cabinet Secretary through an open process; and The Vice-Chancellor who shall be an ex officio member of the Council. THAT, the establishment and composition of the University of Nairobi Council as the governing body of a University is provided for under sections 35 and 36 of the Universities Act 2012, which Council shall employ staff and appoint the Vice-chancellor and Deputy Vice Chancellors in consultation with the Cabinet Secretary Education after a competitive process concluded by the Public Service Commission. THAT, following the declaration of a vacancy in the position of the Vice- Chancellor and Deputy Vice-Chancellors of the University of Nairobi on 10th January 2025, Public Service Commission conducted advertisement, shortlisting, interviews in respect of the said positions on 21st March 2025 to be undertaken by the University Council after consultations with the Cabinet Secretary as required by law. THAT, on or about Friday, February 21, 2025, the Third Respondent in exercise of the powers conferred by section 36 (1) (a) of the Universities Act, 2012 as read together with section 51 (1) of the Interpretation and General Provisions Act in a gazette notice cancelled the immediate of the then Chair of Council (Prof. Amukowa Anangwe) as Chair of the University of Nairobi effective immediately. I produce a copy of gazette notice marked "CNC-1" in support of this assertion. THAT, as at 26th March, 2025 when the Second Respondent returned the merit list of competitive recruitment process for the posts of the University of Nairobi Vice-Chancellor and Deputy Vice-Chancellor, Academic Affairs to the immediate Chairperson of Council (Prof. Amukowa Anangwe), there was no functional Council in place to receive, take note, consider and consult with the Third Respondent on the recommendation and appointment of suitable Senior Managers of the University as required by Section 35(1)(a)(v) of the Universities Act, 2012. THAT, the Chair of Council (Prof. Amukowa Anangwe) at that time and in the absence of a fully constituted Council as envisaged in section of the Universities Act, 2012 unilaterally and irregularly purported to appoint a substantive Vice-Chancellor and a Deputy Vice-Chancellor, Academic Affairs of the University of Nairobi without consulting the Third Respondent and in the absence of a properly constituted Council meeting as required by law. I produce copies of appointment letters marked "CNC-2" in support of this assertion. THAT, Prof. Amukowa Anangwe officially resigned as the University of Nairobi Council Chair on May 26th, 2025, with the resignation accepted by the Third Respondent Cabinet Secretary, Ministry of Education. I produce a copy of resignation marked "CNC-3" in support of this assertion. THAT, the Applicant(s) herein are holding onto an irregular and null appointment and or illegitimate expectation made unilaterally by the Chair of Council (Prof. Amukowa Anangwe) without following the due statutory process of consultation with the Cabinet Secretary for Education as per the law and also communicated by the. Public Service Commission in its letters to University Council. THAT, Prof. Amukowa Anangwe Council was indicted of clear usurpation of roles, including irregular appointments and defying ministry to comply and adhere to statutory process of consultation with the Cabinet Secretary for Education before making appointments of University of Nairobi Senior Managers. Consultation is substantive and mandatory. THAT, following the resignation of Prof. Anangwe and other council members, the Cabinet Secretary, Ministry of Education took septs to rescind irregular appointments by appointing a new Council team to manage and restore due process in the University of Nairobi, with the result that Prof. Margaret Jesang Hutchinson to continue to act as the Vice-Chancellor of the University of Nairobi. THAT, the current Council of the University of Nairobi was appointed on 25th July 2025 pursuant to Gazette Notice No. 10096 dated 25th July 2025 and subsequently inaugurated on 5th August 2025 to oversight and check the institutional autonomy on matters of recruitment and appointment of University Senior Managers positions. I produce a copy of Gazette Notice marked "CNC-4" in support of this assertion. THAT, following Council inauguration and induction, Council was now empowered to govern and offer oversight to the University of Nairobi on matters of recruitment of University Senior Managers and the Council has since consulted with the Cabinet Secretary Ministry of Education, held a special meeting on 14th May, 2026 and substantively appointed the Vice-Chancellor and the Deputy Vice-Chancellor (Finance Planning & Development). I produce copies of appointments letters marked “CNC-5" in support of these assertions. THAT, the University Council at its Special meeting held on Friday, 22nd August 2025, officially received communication Ref. No. PSC/GEN/37/VIII (62) & (63) dated 26th March, 2025 from the Public Service Commission regarding the competitive & merit based recruitment of the substantive Vice- Chancellor and Deputy Vice-Chancellor (Academic Affairs) of the University of Nairobi. THAT, during the said Special meeting, the Council considered the report of the competitive and resolved to accept the order of competitive & merit based performance as listed by the Public Service Commission. However, Council observed that the recruitment process by the Public Service Commission was undertaken in accordance with the lawful procedure until the stage at which the then chair of council purported to Communicate recruitment results to the leading candidate without prior consultation as required by law. I produce copies of the results by the Public Service Commission and extract of the Council minutes meeting held on Friday, 22nd August 2025 marked "CNC-6" and "CNC-7"." in support of this assertion. THAT, on the basis of the foregoing, the new University of Nairobi Council resolved to adhere to the prescribed procedure and as such provisionally recommended that the top-ranked candidate be considered for proposed consultation stage with the Cabinet Secretary, Ministry of Education. THAT, the provisional recommendation to start off initial consultation stage with the Cabinet Secretary, Ministry of Education was made on the understanding that Prof. Elijah Bitange Ndemo, the top ranked candidate made official statement on record stating that the process of recruitment and appointment of the Vice-Chancellor was irregular and unprocedural, thus the basis of his public decline to take up the appointment of the Vice-Chancellor's position. THAT, Prof. Amukowa Anangwe's unilateral appointment raised concern, integrity issues , noncompliance with the law and bad publicity to the University of Nairobi and that the process of appointing Prof. Elijah Bitange Ndemo was not above board. THAT, in the circumstances, the Applicant did not automatically become entitled to appointment as the substantive Vice-Chancellor upon the withdrawal of Prof. Bitange Ndemo. The Public Service Commission merit list did not in itself confer appointment rights and that the statutory consultation between Council and the Cabinet Secretary remained an essential stage of the process before any appointment could crystallise. THAТ under the current legal framework, the projected consultation stage process of the competitive recruitment and appointment of the Vice- Chancellor and Deputy Vice Chancellors of the University of Nairobi involves three key stages: Competitive Recruitment and interviews: The Public Service Commission declares vacancies, advertises the vacancy, short lists the applicants, interviews the shortlisted applicants and conducts a competitive and merit based recruitment process as required by Section 35(1)(a)(v) of the Universities Act, 2012. Council receipt and acknowledgement of the Public Service Commission merit list: Following interviews, the Public Service Commission provides a merit list of successful candidates to the University Council for consultation with the Cabinet Secretary, Ministry of Education. Consultation & Appointment: The University Council after consultation with the Cabinet Secretary for Education then appoints the Vice-Chancellor and issues a contract employment thereof. THAT, by letter dated 25th August 2025, the Council notified the Cabinet Secretary that the Council was, as required by law, available for consultations to conclude the process of the appointment of the Vice-Chancellor and Deputy Vice-Chancellor (Academic Affairs) of the University of Nairobi. The said letter was issued in a bid to ensure compliance with the provisions of Section 35 (1) (a) (v) of the Universities Act. I produce a copy of the letter marked “CNC-8". THAT, indeed the Council held consultations with the Cabinet Secretary, Ministry of Education as required under Section 35 (1) (a) (v) of the Universities Act regarding the appointment of the Vice- Chancellor and Deputy Vice-Chancellor (Academic Affairs) of the University of Nairobi based on the outcome of the competitive & merit based interviews list conducted by Public Service Commission. THAT, after Council and the Cabinet Secretary, Ministry of Education consultations and discussions of the merit list, a resolution was reached that to serve the best interest of the University and the law, the competitive recruitment of the University leadership positions be restarted and a separate communication sent to the Public Service Commission to advertise afresh the vacancies for the Vice-Chancellor and Deputy Vice-Chancellors so that the management of the University of Nairobi activities can be stable and steadfast. THAT, after full cycle of consultations and concurrence on the final decision that the first recruitment process of University Senior Managers be cancelled and a fresh one via the Public Service Commission, the decision to do so was in the interest of the public, the University of Nairobi stability, staff, students and the general public good that and appointment of University Senior Managers positions be concluded for order. THAT, in the circumstances, the first recruitment process was effectively cancelled when the best and top ranked candidate declined the irregular and unlawful appointment and thereafter the position of the Vice-Chancellor re-advertised and completely filled on 14th May, 2026 as directed by the court in ELRCPET/E174/2025 Prof. Francis Jackim Mulaa Vs Council and Prof. Margaret Jesang Hutchinson And 5 Others on 9th April 2026. THAT, in ELRCPET/E174/2025 Prof. Francis Jackim Mulaa Vs University of Nairobi Council and Prof. Margaret Jesang Hutchinson And 5 Others, while the Court was fully aware of the unresolved issues surrounding the earlier recruitment exercise, nonetheless directed that a substantive Vice-Chancellor be recruited and appointed within six months, thereby implicitly recognizing that no substantive Vice-Chancellor had been procedurally appointed under the earlier process.That, on 9th April, 2026 in the Employment & Labour Relations Court at Nairobi, Petition No. E174 of 2025, Honourable Justice Mathews Nduma Nderi (30th March, 2026) and read in open court by Honourable Justice Dr. Jacob Gakeri Judge, the court declared Prof.Margaret Jesang Hutchison Acting Vice-Chancellor position unlawful, null and void but deferred the effect to be effective six (6) months from the date of the judgment (30/03/2026) to allow substantive recruitment and appointment of the position of the University of Nairobi Vice-Chancellor. I produce a copy of the judgement marked "CNC-12." in support of the aforesaid averments. THAT a fresh competitive process was undertaken and concluded in the appointment of the 9th Vice-Chancellor on 14 May 2026.The Council has since successfully completed substantively filled in the position of the Vice-Chancellor as per the requirements terms of the Universities Act, 2012. I produce copies of the letters of appointments marked "CNC-13." in support of the aforesaid averments. THAT, the appointment of a substantive Vice-Chancellor follows a highly structured, multistage process under the Universities Act, 2012 and requires a robust, transparent, and legally compliant process to competitively appoint and fill in the position. THAT, before the Council issues a formal appointment and contact to the selected merited candidate, the merit list candidates are subjected to standard integrity and clearance checks procedure(e.g., Police Clearance Certificate, Credit Reference Bureau (CRB) clearance certificate, Higher Education Loans Board (HELB) Clearance Certificate, Ethics and Anticorruption Clearance Certificate, Kenya Revenue Authority before formal appointments are finalized in order to avoid legal disputes. THAT, under section 9 of the Employment Act, 2007 (amended) an employer shall request a job applicant to submit any clearance or compliance certificate only where they offer the employee employment and intend to enter into a written employment contract. In addition, an employer is at liberty to withdraw the employment offer where the job applicant does not satisfy the provisions of Chapter Six of the Constitution or fails to provide the requested clearance and compliance certificates. THAT, the duly appointed Vice-Chancellor met the requirements of section 9 of the Employment Act, 2007 (amended) and was issued with the appointment letter and terms and conditions of service. In the circumstance, this case is overtaken by events and ought to be dismissed with costs. The installation of a Vice-Chancellor is a historic, symbolic rite of passage that officially transitions university administration and governance leadership when the Vice-Chancellor assumes the role of Chief Executive and academic head of the university. THAT, the installation process combines rigorous statutory recruitment with a highly ceremonial inauguration involving instruments of authority and traditional academic and administrative processions. THAT, the installation of a Vice-Chancellor event serves as a public declaration of the new Vice-Chancellor's authority and leadership vision and the ceremony merely marks the public assumption of an office already lawfully occupied. THAT, the legal framework requiring public and state officers to take an oath of office is primarily established in Article 74(Chapter 6) of the Constitution of Kenya. It mandates that before assuming office, acting, or performing any functions, a person must take and subscribe to an oath or affirmation in the prescribed format. THAT, Public Officer Ethics Act (Act No. 4 of 2003): This framework outlines the statutory code of conduct and ethics that public officers commit to uphold as part of their ongoing duties. THAT, the application herein is thus a Collateral Estoppel is (issue preclusion) as the applicant trying to re-argue a specific factual or legal issue that was already decided in the prior case. The Honourable Court is thus prevented from reconsidering specific facts or issues that were already fully litigated and necessary to the prior judgment in ELRCPET/E174/2025 Prof. Francis Jackim Mulaa Vs University of Nairobi Council and Prof. Margaret Jesang Hutchinson and 5 others. THAT, the issues raised by the Applicant have been substantially overtaken by subsequent judicial pronouncements and subsequent events, including judgement in ELRCPET/E174/2025 and the completion of a fresh competitive recruitment process. THAT, the application is an abuse of the court process and meant to harass the Officers of the University and in particular the Vice-Chancellor and the delay in compliance with the existing judgment and finalization with the installation and assumption into office of the 9th Vice-Chancellor of the University of Nairobi.’ 8.The 2nd respondent informed the court that it relied on its replying affidavit sworn by Paul Famba on the 14th May 2026 in response to the substantive Notice of Motion. The court on perusal of the affidavit found the content was consistent with the affidavit by Prof Chacha thus no need to rehearse the details. Hearing 9.The parties discussed the application, which was certified as urgent, orally before me on 14th July 2026. The applicant was represented by Ms. Orata, the 1st respondent by Mr. Omondi, and the 2nd respondent by Ms. Wangechi. The 3rd respondent did not appear. Decision 10.The court identified the issue to be whether the application had merit for the orders sought to be granted. 11.The applicant sought a stay order on the installation of the appointed Vice Chancellor of the University of Nairobi, scheduled for 17th July 2026, pending the judgment in this case, which is due on 29th July 2026. The applicant stated that the installation is the final step in the recruitment process and that, if permitted to proceed, their case would become academic, as the matter would be rendered nugatory. The counsel for the applicant agreed with the respondents that the appointment of the Vice Chancellor of the University of Nairobi complied with the Order of Mandamus issued by the court in Mulaa v University of Nairobi (KEELRC 1020 KLR). The applicant argued that the judgment did not address the merits of the recruitment before the Public Service Commission, which is the subject of this suit. The applicant stated that the University of Nairobi would suffer no prejudice in waiting one more week. 12.The counsel for the first respondent, Mr. Omondi, relied on the affidavit of Prof. Chacha highlighted above. He attached the judgment dated 9th April 2026, from the Employment & Labour Relations Court at Nairobi, Petition No. E174 of 2025, Honourable Justice Mathews Nduma Nderi (30th March 2026), in Mulaa v University of Nairobi Council & four others; University of Nairobi & another (Interested Parties) [2026] KEELRC 1020 (KLR), read in open court by Honourable Justice Dr. Jacob Gakeri. The court declared Prof. Margaret Jesang Hutchison's acting Vice-Chancellor position unlawful, null, and void, but deferred its effect for six (6) months from the judgment date (30/03/2026) to allow for substantive recruitment and appointment to the University of Nairobi Vice-Chancellor position. A new competitive process was subsequently undertaken, culminating in the appointment of the 9th Vice-Chancellor on 14 May 2026. The Council has since successfully filled the Vice-Chancellor’s position substantively, in accordance with the requirements of the Universities Act, 2012 (supported by a copy of the letter of appointment marked "CNC-13"). The first respondent argued that the installation of a Vice-Chancellor is a historic and symbolic rite of passage, marking the official transition of university leadership when the Vice-Chancellor assumes the roles of Chief Executive and academic head. The process involves thorough statutory recruitment complemented by a ceremonial inauguration involving instruments of authority and traditional academic and administrative processions. This event publicly affirms the new Vice-Chancellor's authority and leadership vision, merely formalising an office already lawfully occupied. The legal framework, chiefly established by Article 74 (Chapter 6) of the Kenyan Constitution, requires that public officers take an oath of office before commencing their duties. The Public Officer Ethics Act (Act No. 4 of 2003) further stipulates the code of conduct and ethics for public officers. The present application also constitutes Collateral Estoppel (issue preclusion), as the applicant seeks to re-argue a specific factual or legal issue previously adjudicated in a prior case. The Court is thus prohibited from re-examining matters fully litigated in ELRCPET/E174/2025, Prof. Francis Jackim Mulaa v. University of Nairobi Council, Prof. Margaret Jesang Hutchison, and others. The issues raised by the applicant have been substantively overtaken by subsequent rulings and events, including the judgment in the aforementioned case and the completion of a new recruitment process. This application amounts to an abuse of court process, intended to embarrass the university officers, particularly the Vice-Chancellor, and to delay compliance with the existing judgment, including the installation and assumption of office by the 9th Vice-Chancellor. The first respondent stated that the present application seeks to circumvent the Order of a Judge of equal status. The first respondent informed the court that the process before the PSC was aborted, and they proceeded with the merit-based recruitment of Prof. Gitau, who has been in office as Vice-Chancellor for three months, preparing for installation. They argued that the university would suffer irreparable loss, given the public funds spent on the ceremony and the invitation of international guests. Furthermore, they contended that any delay would also embarrass the appointed Vice-Chancellor. 13.The 2nd respondent relied on the affidavit dated 14th May 2026, filed in response to the current suit, and submitted that the issue for the court to determine was ‘what is the purpose of the installation in the recruitment’. They stated that there exists an employment contract between Prof Gitau, the Vice Chancellor, and the University of Nairobi. They also argued that the installation is merely a ceremonial act, and that Prof Gitau has already been appointed as the Vice Chancellor and is currently in office. 14.In rejoinder, Ms Orata, counsel for the applicant, stated that the appointment was made while this matter was active in court following the reinstatement of the suit. She questioned the urgency of the impugned recruitment process. This prompted a further response from Mr. Omondi for the first respondent, who submitted that although the suit was reinstated, there was no stay on the competitive recruitment. He also pointed out that, in the Mulaa case, the Judge ordered immediate recruitment. Ms Wangechi, for the second respondent, told the court that this court never reissued an order of stay and that the second respondent proceeded with the recruitment of the Vice Chancellor and forwarded the outcome to the first respondent for appointment. 15.The parties agreed that the recruitment of the Vice Chancellor of the 1st respondent, who was now scheduled for installation, was carried out pursuant to the Judgment in the Mulaa case of Justice Nduma Nderi (as he then was), read by Justice Dr Gakeri on 9th April 2026. The relevant orders under the said Judgment directed to the respondents were as follows-‘A declaration is issued that the continued holding of the office of the Vice-Chancellor of the University of Nairobi by the 2nd Respondent in an acting capacity beyond the period permitted by the law, contravenes section 34 of the Public Service Commission Act and is therefore unlawful, null and void. The effect of this order is suspended and is to take effect six (6) months from the date of this order to allow the substantive filling of the position.e.An order of mandamus is issued compelling the Respondents and the Interested Parties to immediately regularize the position of Vice-Chancellor, University of Nairobi, by competitively and substantively filing up the position within six months from the date of this judgment.’’ 16.It was not in dispute that in compliance with the above Orders, the 2nd respondent proceeded with the recruitment process of the Vice Chancellor of the University of Nairobi and forwarded the outcome to the 1st respondent, wherein the Prof Gitau was appointed as communicated in a letter dated 14th May 2026. The 1st respondent annexed the appointment letter as ‘CNC 5’. The letter informed Prof. Ayub Njoroge Gitau, PhD, that- ‘the process of competitive recruitment of the Vice Chancellor is complete, and I am pleased to inform you that you were the successful applicant. am As per Universities Act 2012, the University of Nairobi Council appoints you as the Vice Chancellor of the University of Nairobi for a period of 5 years effective May 14, 2026, as per the terms and conditions of service attached herein. ……Prof. Chacha Nyaigotti Chacha, PhD,HSC, OGWChairperson University of Nairobi Council’ (emphasis given). 17.What is the role of the installation in the recruitment process of a vice chancellor? The court finds from the response of the 1st respondent that the installation of the Vice-Chancellor is a significant ceremonial function of the university. Prof Chacha explained in his Replying Affidavit as follows: ‘THAT, the duly appointed Vice-Chancellor met the requirements of section 9 of the Employment Act, 2007 (amended) and was issued with the appointment letter and terms and conditions of service. In the circumstances, this case is overtaken by events and ought to be dismissed with costs. 51. THAT, the installation of a Vice-Chancellor is a historic, symbolic rite of passage that officially transitions university administration and governance leadership when the Vice-Chancellor assumes the role of Chief Executive and academic head of the university. 52. THAT, the installation process combines rigorous statutory recruitment with a highly ceremonial inauguration involving instruments of authority and traditional academic and administrative processions. 53. THAT, the installation of a Vice-Chancellor event serves as a public declaration of the new Vice-Chancellor's authority and leadership vision, and the ceremony merely marks the public assumption of an office already lawfully occupied. 54. THAT, the legal framework requiring public and state officers to take an oath of office is primarily established in Article 74 (Chapter 6) of the Constitution of Kenya. It mandates that before assuming office, acting, or performing any functions, a person must take and subscribe to an oath or affirmation in the prescribed format. 55. THAT, the Public Officer Ethics Act (Act No. 4 of 2003): This framework outlines the statutory code of conduct and ethics that public officers commit to uphold as part of their ongoing duties.’ I find that the appointment letter was an enforceable contract of employment and valid even without the installation. However, installation appeared to have a significant impact on the university, as stated. 18.The Applicant relied on a decision of the Supreme Court where the court pronounced itself on the basis of issuance of a conservatory order and stay pending appeal in Munya v Kithinji & 2 others [2014] KESC 30 (KLR). The court observed- ‘8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.. The principles to be considered before a Court of law can grant orders of stay of execution are, that the Appellant, or intending appellant, has to satisfy the Court that:ii.unless the order of stay sought is granted, the Appeal or intended appeal, were it eventually to succeed, will have been rendered nugatory.’’ I find the instant application seeking stay of the installation is akin seeking a conservatory order to preserve the subject matter in the suit due for judgment on 29th July 2026. The court holds that the recruitment had been done and completed vide appointment letter of 14th May 2026 . The appointed Vice Chancellor is already in office. The court found the installation was ceremonial and for the purposes of the employment court, the process of recruitment was completed on issuance of the appointment letter. I find that the Order of Mandamus was issued by a court of equal status, and that, by issuing a stay of the installation, I would be circumventing a lawful process that had not been impeached and thus defeating the Order of Mandamus. That would not be in the public interest. Furthermore, the court found it is disproportionate to stay the installation of the Vice Chancellor of the University of Nairobi when the said appointment has not been impeached, taking into account the public interest, the cost of preparation for the installation process and the expenditure of public funds. The judgment which is due for 29th July 2026, while on the subject of recruitment of a vice chancellor of the university , it relates to a previous recruitment process. The Court holds that the installation does not affect the suit, as the impugned recruitment is overtaken by events following the subsequent recruitment and issuance of an appointment letter to Prof Gitau. The court can only deal with the issue of the fairness and lawfulness of the decision-makers in terminating the recruitment process, which was under the advert of 21st January 2025 by the 2nd respondent.i.the Appeal or intended appeal is arguable and not frivolous; and that 19.In the upshot, the court finds no merit in the application by way of Notice of Motion dated 9th July 2026, and the same is dismissed with costs to the respondents in the cause. 20.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant - Oratathe University of Nairobi – Omondi2nd respondent – Wangechi3rd respondent – No Appearance