https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2322

Orata v Chairman, University of Nairobi Council & 2 others (Judicial Review Miscellaneous Application E090 of 2025) [2026] KEELRC 2322 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2322 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Miscellaneous Application E090 of 2025 JW Keli, J July 29, 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 Judgment 1.The Ex Parte Applicant, Prof. Duke Omondi Orata, pursuant to leave of the court filed a substantive Notice of Motion dated 7th January 2026 under Order 53 of the Civil Procedure Rules against the respondents seeking the following substantial orders –a.That an order of Certiorari do issue to remove into this Honourable Court for purposes of quashing the decision of the 1st Respondent, the University of Nairobi Council to terminate, abandon and/or treat as spent the recruitment process for the position of Vice Chancellor arising from the advertisement dated 21 January 2025, including the decision to repudiate and disregard the merit list generated by the Public Service Commission, following the withdrawal of the top ranked candidate, on the basis of alleged non-consultation by the previous Council, without setting aside the said process through any lawful mechanism and the consequential Notification of Regret dated 19 December 2025 and the decision to re-advertise the position while a valid and unchallenged merit list subsisted.b.That an order of Mandamus do issue compelling the Respondents to lawfully reconsider and conclude the recruitment process for the position of Vice Chancellor from the existing Public Service Commission merit list, in accordance with the Universities Act, Article 47 of the Constitution, and the Fair Administrative Action Act, or, in the alternative, to provide the Applicant, within a specified period, with written, lawful, rational and procedurally fair reasons, grounded in statute, demonstrating why the said merit list could not be acted upon and further demonstrating that any alleged procedural defect relating to consultation with the Cabinet Secretary for Education could not reasonably be cured without terminating the entire recruitment process.c.That an order of Prohibition do issue restraining the Respondents, jointly and/or severally, from proceeding with any fresh process for the position of Vice Chancellor pending lawful determination of the recruitment process arising from the advertisement dated 21 January 2025 and from expending public funds on a parallel or duplicative recruitment process founded on an unlawfully terminated process.d.That this Honourable Court be pleased to issue a Declaration that the Public Service Commission merit list arising from the recruitment process initiated on 21 January 2025 remained valid and lawful notwithstanding the withdrawal of the top-ranked candidate.e.That this Honourable Court be pleased to issue a Declaration that the University of Nairobi Council, as a continuing statutory body, had no lawful authority to repudiate, abandon or treat as spent the concluded decisions of its predecessor Council relating to the recruitment process in the absence of any finding of illegality or statutory breach.f.That this Honourable Court be pleased to issue a Declaration that any failure to consult the Cabinet Secretary for Education, where alleged, constituted a procedural step capable of cure and did not in law justify the termination of a concluded, merit-based recruitment process.g.That this Honourable Court be pleased to issue any other Orders or directions as it may deem fit and just to grant.h.That the costs of this application be provided for. 2.Grounds of the Judicial reviewa)The Respondents conducted a competitive recruitment process for the position of Vice Chancellor, shortlisted candidates, conducted interviews, and generated a valid merit list through the Public Service Commission.b)The ex- parte applicant was ranked second overall, and the top-ranked candidate subsequently publicly withdrew his candidature, thereby ceasing to be eligible for appointment.c)Instead of lawfully considering the remaining candidates on the merit list, the University Council resolved to insist on appointing a candidate who had withdrawn, and later to discard the entire process.d)The Respondents expressly acknowledged that the recruitment process up to the submission of the PSC report complied with procedure, and identified no illegality, fraud, or statutory breach in the process itself.e)The only alleged irregularity concerned consultation with the Cabinet Secretary for Education, which was a procedural step capable of being cured and did not warrant termination of the entire process.f)The decision to abandon the recruitment, disregard the merit list, and re-advertise the position was irrational, unreasonable, disproportionate, and an abuse of discretion, contrary to established principles of administrative law.g)The 1st Respondent issued a Notification of Regret to the Applicant without reasons violating Article 47 of the Constitution and Sections 4 and 6 of the Fair Administrative Action Act.h)By conducting a competitive recruitment, generating and approving a merit list, and confirming procedural compliance, the Respondents created a legitimate expectation that appointment would be made from the merit list or that lawful reasons would be given for any departure.i)The Respondents acted contrary to Articles 10 and 232 of the Constitution by undermining merit based recruitment, transparency, accountability, and prudent use of public resources.j)The actions complained of fall squarely within the scope of judicial review, as they concern illegality, irrationality, procedural impropriety, and violation of constitutional rights.k)That judicial review is the only appropriate and effective remedy. 3.The petitioner filed an affidavit dated 7th January 2026 in support of the motion and annexed his evidence as follows: That following shortlisting, he was interviewed on 21 March 2025 alongside four other candidates by the Public Service Commission as part of a competitive recruitment process. That on 5 May 2025, upon conclusion of the interviews, the 2nd Respondent, the Public Service Commission, generated a merit list ranking candidates based on interview performance, in which he was ranked second overall with 73% after Prof. Bitange Ndemo, who scored the highest, 84%. That on or about 7 May 2025, the then Chairman of the University of Nairobi Council, Prof. Amukowa Anangwe, publicly announced that the Council had appointed Prof. Ndemo as the Vice Chancellor of the University of Nairobi. That on or about 9 May 2025, the Principal Secretary for Higher Education, Ms. Beatrice Inyangala, publicly stated that the said announcement had not followed the proper legal procedures and that the Ministry of Education had not been consulted or involved in the decision to make the purported appointment. On the 9 May 2025, Prof. Ndemo subsequently publicly and unequivocally withdrew his candidature for the position of Vice Chancellor, thereby rendering himself unavailable and ineligible for appointment. A copy of his withdrawal statement was annexed hereto and marked ‘DO1’. Notwithstanding the withdrawal of the top-ranked candidate, the 2nd Respondent publicly confirmed and affirmed that the recruitment process for the position of Vice Chancellor had been concluded, remained valid, and was supported by a subsisting merit list generated through a lawful and competitive process. A copy of the Public Service Commission Vice-Chairperson's public remarks/statement was annexed hereto and marked ‘DO2’. That at a special meeting of the University of Nairobi Council held on or about 22 August 2025, the newly constituted Council led by Prof. Chacha Nyaigotti-Chacha resolved to communicate to the Cabinet Secretary for Education its decision to proceed with the recommendation for appointment of Prof. Bitange Ndemo to the position of Vice Chancellor, notwithstanding the fact that Prof. Ndemo had publicly and unequivocally withdrawn his candidature for the said position and had, by reason of such withdrawal, ceased to be a candidate on the Public Service Commission merit list. A copy of minute SC/6/22/8/25 of the said meeting was annexed hereto and marked ‘DO3’. That in Minute SC/6/22/8/25 of the said special meeting, the University Council expressly acknowledged, as a matter of record, that the recruitment process up to and including the submission of the Public Service Commission report had complied with the prescribed procedure. That notwithstanding the foregoing acknowledgement, the University Council thereafter resolved to terminate and abandon the recruitment process, to disregard the subsisting merit list, and to proceed with the re-advertisement of the position of Vice Chancellor. On 20th December 2025, the petitioner stated that he received an email enclosing a letter dated 19 December 2025 which he annexed and marked as ‘DO4 from the 1st Respondent, notifying him that the recruitment process had been terminated, which Notification of Regret did not disclose any reasons for the decision. That the termination of the recruitment process, the disregard of the merit list, the issuance of the Notification of Regret without reasons, and the subsequent re-advertisement of the position constituted a single, composite administrative decision, executed without procedural fairness and amenable to judicial review and an order of certiorari. On or about 30 December 2025, and in direct contradiction of the Council's own discussions captured in Minute SC/6/22/8/25, the Chairman of the University of Nairobi Council, Prof. Chacha Nyaigotti-Chacha, publicly purported to disown and invalidate the entire recruitment process on the basis that it had been conducted under the previous Council, characterizing the interviews as irregular and incapable of being acted upon, and treating the merit list as spent, notwithstanding the Council's prior express confirmation that the recruitment process up to the submission of the Public Service Commission report had complied with procedure. A copy of the Chairman's interview with the Standard Newspaper was annexed and marked ‘DO5.’ The petitioner contended that the sole justification advanced by the Respondents for the impugned decisions was an alleged failure by the former University Council to consult the Cabinet Secretary for Education prior to communicating an appointment. That such consultation, even if omitted, constituted a procedural step capable of being cured in law and did not justify the wholesale termination or abandonment of a concluded recruitment process or the disregard of a valid and subsisting merit list. That the Respondents did not demonstrate why such consultation could not be undertaken retrospectively or why the merit list could not lawfully be acted upon thereafter. That instead of curing the alleged procedural defect, the Respondents exercised their discretion in a manner that was irrational, disproportionate, and punitive, by discarding the entire recruitment process. That by conducting a competitive recruitment process, generating and approving a merit list, and confirming procedural compliance, the Respondents created a legitimate expectation that appointment would be made from the merit list or that lawful reasons would be given for any departure. That the abrupt termination of the process without reasons defeated this legitimate expectation in a manner that was arbitrary, unreasonable, and contrary to Articles 10, 47 and 232 of the Constitution. That unless compelled by this Honourable Court, the Respondents are unlikely to reconsider the recruitment process in a lawful, rational, and procedurally fair manner. That on 16 December 2025, following termination of the recruitment process, the Respondents proceeded to re-advertise the position of Vice Chancellor while a valid and unchallenged merit list subsisted. A copy of the re-advertisement notice was annexed and marked ‘DO6’. That such re-advertisement exposes public funds to unnecessary expenditure and undermines the constitutional principle of prudent use of public resources. That unless restrained by this Honourable Court, the Respondents are likely to proceed with a parallel recruitment process founded on an unlawfully terminated process, thereby rendering these proceedings nugatory. That the Respondents' actions undermined the constitutional principles of merit-based public appointments, transparency, accountability, and fairness in public service. That the actions complained of violated my right to fair administrative action under Article 47 of the Constitution and sections 4 and 6 of the Fair Administrative Action Act. That this Application raises issues of public importance concerning governance of public universities, adherence to merit lists, and responsible use of public resources. That it is in the interests of justice, constitutional compliance, and good governance that the orders of Certiorari, Mandamus and Prohibition sought in the Notice of Motion be granted. Response 4.The 1st respondent opposed the judicial review application vide replying affidavit of Prof Chacha Nyaigotti -Chacha sworn on the 27th February 2026. The Professor was the chairman of the University of Nairobi Council and gave an elaborative background to the recruitment process of the vice chancellor of the University of Nairobi and justified for restart of the recruitment process as follows- That, the Ex Parte Applicant herein was holding onto an irregular and null appointment made unilaterally by the then Chairman of Council (Prof. Amukowa Anangwe) without following the due statutory process of consultation with the Cabinet Education as per the law and also results of the interview as communicated by the Public Service Commission in its letters to University Council. That Prof. Amukowa Anangwe Council was indicted for clear usurpation of roles and statutory appointments, and for defying the ministry by making appointments without consultation with the Cabinet Secretary for Education for University of Nairobi Senior Managers. Following the resignation of Prof. Amukowa Anangwe and other council members, the Cabinet Secretary, Ministry of Education, took steps to rescind irregular appointments by making appointment of a new Council team to manage and restore due process in the University of Nairobi, with the result that Prof. Margaret Jesang Hutchinson continued to act as the Vice-Chancellor of the University of Nairobi. 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 oversee and check the institutional autonomy on matters of recruitment and appointment of University Senior Managers positions. A copy of Gazette Notice marked "CNC-4" in support of this assertion was annexed. Following the Council inauguration and induction, the Council was now empowered to govern and offer oversight to the University of Nairobi on matters of recruitment of Senior Managers and governance affairs in the University. The University's appointments Senior Managers positions are all held in acting capacities. Copies of the acting were marked “CNC-5". The University Council, at its Special meeting held on Friday, 22nd August 2025, 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 and merit-based performance as listed by the Public Service Commission. However, the current Council observed that the recruitment process by the Public Service Commission was undertaken in accordance with lawful procedures until the stage at which the then chairman of the Council purported to communicate the recruitment results to the leading candidate without prior consultation, as required by law. (Copies of the results by the Public Service Commission and extract of the Council minutes meeting held on Friday, 22nd August 2025 were annexed and marked "CNC-6" and "CNC-7"). 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 the proposed consultation stage with the Cabinet Secretary, Ministry of Education. 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 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: a) 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. b) 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. c) Consultation & Appointment: The University Council after consultation with the Cabinet Secretary for Education then appoints the Vice-Chancellor and issues a contract of 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 (A copy of the letter marked “CNC-8"). That 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. After the 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 to start 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 the recruitment and appointment of University Senior Managers positions be concluded for institutional stability and good order. That the statutory mandate of Council and the Cabinet Secretary consultations as provided in the Universities Act is not a mere "rubber stamping” exercise where the Council and the Cabinet Secretary are expected to sanction the outcome of the interviews by the Public Service Commission. The requirement of consultations is for the Council and the Cabinet Secretary to have an opportunity to provide his views regarding the contemplated appointments by the Council. That the Council consultation with the Cabinet Secretary For Education Consultation is a mandatory legal requirement, not a mere formality and of critical nature in the recruitment and appointment of senior leadership positions in the University, as the consultation serves: a) Veto Power of the Ministry of Education over Universities before issuing appointment letter and contract of employment. b) Grounds for Rejection: The Cabinet Secretary for Education may decline a Council's recommendation for appointment if the procedure is found to be irregular, illegal, or violates fair administrative principles. c) Delegated Authority: Council exercises authority delegated from the Cabinet Secretary, who reserves the right to review or even vacate Council decisions that do not adhere to the law and guidelines to assure that candidates are strictly vetted, while also securing alignment with constitutional tenets on diversity and regional balance. That, the appointment of a University Vice-Chancellor requires mandatory consultation between the University Council and the Cabinet Secretary for Education, as mandated by the Universities Act, 2012. That, the law has not stipulated that the consultations with the Cabinet Secretary must yield to an appointment and formal contract of employment. It is the responsibility of the Council as the employer by law to bear in mind and consider the suitability of the received Public Service Commission merit list, consult with the Cabinet Secretary Ministry of Education and make a determination on the list. The determination may not necessarily result in an appointment and contract of employment. Termination is also possible after considering background checks and ethical concerns of the candidates from the merit list. That, Council appointments made without involving Cabinet Secretary are deemed unlawful, irregular, and a breach of statutory procedures. The Vice-Chancellor's appointment must adhere to Section 35(1) (a) (v) of the Universities Act, 2012, ensuring competitive, transparent procedures, often involving the Public Service Commission. That as the consultations is not a" rubber stamping" exercise, the Council and the Cabinet Secretary, Ministry of Education during the consultations did consider several matters including whether the procedure adopted by the Public Service Commission in recruiting the Vice- Chancellor of the University of Nairobi achieved the constitutional objectives and statutory requirements of competence, gender equity, regional and ethnic diversity. Other matters under consideration included the personal integrity and suitability of the individuals competitively interviewed and merit listed by the Public Service Commission. That arising from the said consultations and further deliberations by Council, the Council made a resolution that appointment of the Vice- Chancellor could not be made based on the competitive & merit list dated 26th March 2025 submitted by the Public Service Commission and that so as to serve the best interest of the University of Nairobi, it was appropriate that the recruitment process for the position of the Vice- Chancellor, effect University of Nairobi be restarted. Accordingly, the allegation by the Applicant to the that Chairman/deponent restarted the interviews conducted by Public Service Commission were irregular is utter falsehood. That from the foregoing, it is evident that the Council and the Cabinet Secretary, Ministry of Education undertook their statutory mandate as prescribed under Section 35 (1) (a) (v) of the Universities Act culminating to the decision to terminate the recruitment process and have the process restart afresh. 35.That_the need to restart the recruitment for the position of the Vice- Chancellor, University of Nairobi was communicated to the Public Service Commission vide a letter dated 22nd October 2025. (a copy of the letter marked "CNC-9.") That the Council's decision to terminate the recruitment process was communicated to Prof. Duke Omondi Orata on 16th December 2025 and to Prof. Francis Jackim Mulaa dated 18th December, 2025. (copies of the letters marked "CNC-10"). That as the position of the Vice- Chancellor of the University of Nairobi requires to be filled substantively, the Public Service has subsequently re-advertised the said position vide advert dated 16th December 2025 and all persons including the Applicant are at liberty to re-apply. (A copy of the advertisements marked “CNC-11.’) That the application brought before this court is an abuse of the court process and an attempt to usurp the constitutional and statutory powers of the Council of the University of Nairobi and the Cabinet Secretary, Ministry of Education since the Applicant wants the Honourable Court to micromanage the recruitment and appointment of University Senior Managers positions. That the Applicant's personal interests cannot override the public good, interest and the stability of the University since the Applicant can be compensated by way of general damages. The deponent further stated that, suits ELRCJR NO. E090 OF 2025 (the Vice-Chancellor of 2026 (The Deputy position, Academic Affairs) and ELCJR NO. E001 Vice-Chancellor position) arose from a similar set of facts, concerning the recruitment and appointment of the University's senior managers under section 35 (1) (v) of the Universities Act 2012. 5.The 2nd respondent filed a response to the petition vide replying affidavit of Paul Famba sworn on the 14th May 2026 and stated as follows- That on 10th January 2025 the Commission received a request from the University of Nairobi Council for recruitment for the position of Vice-Chancellor at the University of Nairobi.(Annexed hereto and marked as "PF-1" is a copy of the letter dated 10th January 2025) That the Commission, on 21 January 2025 advertised for the position of Vice- Chancellor, University of Nairobi. The Commission, upon conclusion of the recruitment process, pursuant to Section 35 (1) (a) (v) of the Universities Act. Cap 210. Forwarded the interview results to the University Council vide letter Ref. No. PSC/GEN/37/VII/(62) dated 26th March 2025.(Annexed hereto and marked as "PF-2" is a copy of the letter dated 26th March 2025) In the letter, the Commission recommended the following candidates for consideration by the University Council in consultation with the Cabinet Secretary in order of merit: Prof. Elijah Bitange Ndemo: Prof. Duke Orata: and Prof. Francis Jackim Mulaa. That pursuant to Section 35(1)(a)(vi), the duty to appoint a Vice-Chancellor lies with the Council In consultation with the Cabinet Secretary. The Commission, on 23rd October 2025, received a request dated 22 October 2025 from the Chairman of the University Council informing the Commission that the Council had resolved to restart the recruitment process for the position of Vice-Chancellor "To serve the best interest of the University of Nairobi". (Annexed hereto and marked as "PF-3" is a copy of the letter dated 22nd October 2025) The Commission, on 16th December 2025, advertised the position of Vice- Chancellor, University of Nairobi, the subject of this Application. The deponent stated that he was advised by the Commission's counsel on record that, when the application for leave dated 23rd December 2025 came up for hearing ex-parte, the Honourable Court ordered that:a.Leave is hereby granted to commence JR proceedings against the respondents within 21 days of this order.b.Such leave shall operate as a stay on the advertisement, shortlisting interviewing and recruitment for the post of Vice Chancellor, University of Nairobi pending the hearing and determination of the JR application hereinc.Mention before the trial Court on 26 January 2026 for further directions on hearing and disposald.Let the same be served on the respondents who shall be at liberty to respond to the same with 14 days of service. Mention on 19 of January 2026 for directions on hearing and disposale.Conservatory orders are hereby issued in terms of prayer (b) in the Motion dated 16 December 2025 to last until 19 January 2026. That was when the matter came up for mention on 26 January 2026, the suit was dismissed, and the file was closed. That the Applicant filed an application dated 10th February 2026 seeking the following orders:a.That the application be certified as urgent and be heard ex parte in the first Instance.b.That pending the inter partes hearing and determination of this application, this Honourable court be pleased to stay execution of the ruling of Hon. Justice Abuodha made on 26 January 2026.c.That the orders made by the Hon. Justice Abuodha on 26 January 2026 be reviewed and set aside and the application for Judicial Review dated 7 January 2026 be heard and determined on merit.d.That such further and other relief be granted to the Applicant as this court deems fit and expedient in the circumstances.Since there was no order staying the advertisement, shortlisting, interviewing and recruitment for the post of Vice Chancellor, University of Nairobi, as the suit had been dismissed, the Commission proceeded with the recruitment and upon conclusion of the recruitment process, pursuant to Section 35(1)(a)(v) of the Universities Act. Cap 210, forwarded the interview results to the University Council vide letter Ref. No. PSC/GEN/37/IX/ (56) dated 27th March, 2026. (Annexed hereto and marked as "PF-4" is a copy of the letter dated 27 March 2026)17. That the Applicant's application dated 10 February 2026 seeking the setting aside of the orders of Honourable Justice Abundha issued on 26 January 2026 was heard on 25 March 2026, and the Court allowed the application to the extent that the application dated 7 January 2026 was reinstated to be heard and determined on merit. The Court did not reinstate the conservatory orders issued in December 2025. In both instances, the Commission fulfilled its lawful mandate and forwarded the results to the University Council. Determination 6.The petition was canvassed by way of pleadings, documents and written submissions. Issues for determination 7.The court, having perused the pleadings, documents and submissions of the parties, discerned the issues for determination to be as follows-a.Whether the abandonment of the impugned recruitment process on account of a procedural defect relating to consultation with the Cabinet Secretary for Education was reasonable and justified in law.b.Whether the cause of action was moot pursuant to Mulaa v University of Nairobi Council & 4 others; University of Nairobi & another (Interested Parties) [2026] KEELRC 1020 (KLR) (Judgment).c.Whether the ex parte application had merit. 8.The facts of the suit were not in dispute as outlined by the parties- 9.The 2nd respondent, on 21 January 2025, advertised for the position of Vice- Chancellor, University of Nairobi. The Commission, upon conclusion of the recruitment process, pursuant to Section 35 (1) (a) (v) of the Universities Act. Cap 210. It forwarded the interview results to the University Council vide letter Ref. No. PSC/GEN/37/VII/(62) dated 26th March 2025. (Annexed hereto and marked as "PF-2" is a copy of the letter dated 26th March 2025). In the letter, the Commission recommended the following candidates for consideration by the University Council in consultation with the Cabinet Secretary in order of merit:-Prof. Elijah Bitange Ndemo: (highest ranked)Prof. Duke Orata: (No. 2)andProf. Francis Jackim Mulaa(No.3). 10.The top-ranked candidate, Prof. Elijah Bitange Ndemo, subsequently withdrew his candidature publicly, thereby ceasing to be eligible for appointment. The 1st respondent's new council disregarded the impugned process due to a lack of consultation with the Cabinet Secretary for Education. Pursuant to Section 35(1)(a)(vi), the duty to appoint a Vice-Chancellor lies with the Council, in consultation with the Cabinet Secretary for Education. The Ex Parte Applicant states that the only alleged irregularity concerned consultation with the Cabinet Secretary for Education, which was a procedural step capable of being rectified and did not warrant the termination of the entire process. According to him, the decision to abandon the recruitment, disregard the merit list, and re-advertise the position was irrational, unreasonable, disproportionate, and an abuse of discretion, contrary to established principles of administrative law. Prof. Chacha Nyangotti Chacha agreed that the former council failed to consult the Cabinet Secretary for Education regarding the shortlisted top three candidates for the vice chancellor, and that the council unilaterally appointed Prof. Elijah Bitange Ndemo, who subsequently declined the appointment, stating it was unprocedural. Prof. Chacha stated that the appointment of Prof. Amukowa Anangwe raised concerns regarding integrity issues, non-compliance with the law, and negative publicity for the University of Nairobi, and that the process of appointing Prof. Elijah Bitange Ndemo was not conducted properly. Under the current legal framework, the consultation process for the competitive recruitment and appointment of the Vice-Chancellor and Deputy Vice-Chancellors of the University of Nairobi comprises three key stages.a)Competitive Recruitment and interviews: The Public Service Commission declares vacancies, advertises the vacancy, shortlists 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.b)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.c)Consultation & Appointment: The University Council, after consultation with the Cabinet Secretary for Education, then appoints the Vice-Chancellor and issues a contract of employment thereof. 11.The Chairman contended that by letter dated 25th August 2025, the Council notified the Cabinet Secretary that it 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 council was still applying the list of candidates, including Prof. Ndemo as the highest-ranked. The Chairman stated that the said letter was issued in a bid to ensure compliance with the provisions of Section 35 (1) (a) (v) of the Universities Act (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 the 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 to start 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 the recruitment and appointment of University Senior Managers positions be concluded for institutional stability and good order. That the statutory mandate of Council and the Cabinet Secretary consultations, as provided in the Universities Act, is not a mere "rubber stamping” exercise where the Council and the Cabinet Secretary are expected to sanction the outcome of the interviews by the Public Service Commission. The requirement for consultations is to allow the Council and the Cabinet Secretary to provide their views on the contemplated appointments by the Council. The Council consultation with the Cabinet Secretary for Education Consultation is a mandatory legal requirement, not a mere formality and of critical nature in the recruitment and appointment of senior leadership positions in the University, as the consultation serves: -a)Veto Power of the Ministry of Education over Universities before issuing an appointment letter and a contract of employment.b)Grounds for Rejection: The Cabinet Secretary for Education may decline a Council's recommendation for appointment if the procedure is found to be irregular, illegal, or violates fair administrative principles.c)Delegated Authority: Council exercises authority delegated from the Cabinet Secretary, who reserves the right to review or even vacate Council decisions that do not adhere to the law and guidelines to ensure that candidates are strictly vetted, while also securing alignment with constitutional tenets on diversity and regional balance. 12.The Chairman asserted that the appointment of a University Vice-Chancellor requires mandatory consultation between the University Council and the Cabinet Secretary for Education, as mandated by the Universities Act, 2012. The law does not require that consultations with the Cabinet Secretary lead to an appointment and a formal contract of employment. It is the responsibility of the Council, as the employer by law, to consider the suitability of the received Public Service Commission merit list, consult with the Cabinet Secretary, Ministry of Education, and decide on the list. The determination may not necessarily result in an appointment and contract of employment. Termination is also possible after considering background checks and ethical concerns of the candidates from the merit list. The Council appointments made without involving the Cabinet Secretary are deemed unlawful, irregular, and a breach of statutory procedures. The Vice-Chancellor's appointment must adhere to Section 35(1) (a) (v) of the Universities Act, 2012, ensuring competitive, transparent procedures, often involving the Public Service Commission. 13.It was the opinion of the Court that the instant suit’s fate lies on the interpretation of Section 35 of the Universities Act. I find that the court in Mulaa v University of Nairobi Council & 4 others; University of Nairobi & another (Interested Parties) [2026] KEELRC 1020 (KLR) interpreted the meaning of section as follows- ‘section 35(1)(a)(v) and (vi) of the University Act provides that: A Council shall: -(v)In the case of Public Universities, appoint Vice Chancellor Deputy Vice Chancellors and Principal and Deputy Principals of Constituent Colleges in consultation with the Cabinet Secretary, after a competitive process conducted by the Public Service Commission; and(vi)Undertake other functions set out under this Act and the Charter. ”This section read with section 51(1) of the Interpretation and General Provision Act which provides that: -“Whereby under a written law, power or duty is conferred or imposed upon a person to make an appointment or to constitute or establish a Board, Commission, Committee or similar body then unless a contrary intention appears, the person having that power or duty shall have the power to remove, suspend, dismiss or revoke the appointment of and reappoint or reinstate a person appointed in the exercise of the power or duty.’’ I uphold the decision. ` 14.It is not up to the court to make laws or guess the importance of the recruitment process of the vice chancellor of the university, as required by the legislature in consultation with the cabinet secretary for education. The fact that the former chairman, Prof Amukowa Anagwe, failed to consult the Cabinet Secretary rendered the appointment a nullity. The Ex Parte Applicant was no. 2 in the impugned process and thus cannot be said to have had a legitimate expectation to be appointed as vice chancellor. The court agreed with the Chairman of the University of Nairobi Council that the law does not state or imply that the consultation on the shortlisted candidates in the recruitment with the cabinet secretary must yield to an appointment. The decline of the appointment of Prof Bitange Ndemo, the leading candidate, was based on a lack of procedural compliance. Prof Anagwe resigned immediately thereafter, and a new council was put in place, which, after the consultations with the Cabinet Secretary, decided to recruit afresh. The court finds that the decision to conduct a fresh recruitment was based on doubt about the credibility of the entire process. The court finds the decision of the respondents complied with Article 232 of the Constitution, to wit-‘. Values and principles of public service232.Values and principles of public service(1)The values and principles of public service include—(a)high standards of professional ethics;(b)efficient, effective and economic use of resources;(c)responsive, prompt, effective, impartial and equitable provision of services;(d)Involvement of the people in the process of policy making;(e)accountability for administrative acts;(f)transparency and provision to the public of timely, accurate information;(g)subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions….The Ex Parte Applicant was not the best candidate, thus did not merit the position of Vice Chancellor on fair competition and merit at the first instance. Prof. Ndemo was ranked first, and, in rejecting the appointment, raised issues concerning professionalism in the recruitment process. Prof. Anangwe, who was in charge of the impugned process, resigned before its completion. Transparency issues and procedural lapses thus compromised the credibility of the process. I find no reason to fault the Council and Cabinet Secretary's decision to restart the recruitment process for the Vice Chancellor of the University of Nairobi. Whether the cause of action was moot pursuant to Mulaa v University of Nairobi Council & 4 others; University of Nairobi & another (Interested Parties) [2026] KEELRC 1020 (KLR) Judgment 15.The court in Mulaa v University of Nairobi Council & 4 others; University of Nairobi & another (Interested Parties) [2026] KEELRC 1020 (KLR) issued the following order-‘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.’ The court established that recruitment commenced before the case was filed, vide letter to the Public Service Commission dated 22nd October 2025 (annexure CNC-9). The advertisement was on 16th December 2025 (DO6). The recruitment began via re-advertisement, but not in accordance with the court order of 30th March 2026 (The Mulaa case judgment). The instant suit was thus not moot at the time of filing on 7th January 2026. However, on the 26th January 2026, the case was dismissed by Justice Abuodha. On application, I reinstated the case on 25th March 2026, but the conservatory orders were not revived. The case was not moot, but is overtaken by events with respect to any order sought to stop the recruitment. Whether the petitioner was entitled to the relief sought 16.The Ex Parte Applicant sought the following orders –a.That an order of Certiorari do issue to remove into this Honourable Court for purposes of quashing the decision of the 1st Respondent, the University of Nairobi Council to terminate, abandon and/or treat as spent the recruitment process for the position of Vice Chancellor arising from the advertisement dated 21 January 2025, including the decision to repudiate and disregard the merit list generated by the Public Service Commission, following the withdrawal of the top ranked candidate, based on alleged non-consultation by the previous Council, without setting aside the said process through any lawful mechanism and the consequential Notification of Regret dated 19 December 2025 and the decision to re-advertise the position while a valid and unchallenged merit list subsisted. Having held that the decision to re-advertise was lawful, I return the order in the negative.b.That an order of Mandamus do issue compelling the Respondents to lawfully reconsider and conclude the recruitment process for the position of Vice Chancellor from the existing Public Service Commission merit list, in accordance with the Universities Act, Article 47 of the Constitution, and the Fair Administrative Action Act, or, in the alternative, to provide the Applicant, within a specified period, with written, lawful, rational and procedurally fair reasons, grounded in statute, demonstrating why the said merit list could not be acted upon and further demonstrating that any alleged procedural defect relating to consultation with the Cabinet Secretary for Education could not reasonably be cured without terminating the entire recruitment process. I held that the first recruitment process was tainted with illegality for failing to comply with section 35 of the Universities Act, namely, for failing to consult. The ex parte applicant had no basis to allege a legitimate expectation, as he was No. 2, and the consultation need not lead to appointment. The court also held that the recruitment of the Vice Chancellor is overtaken by events.c.That an order of Prohibition do issue restraining the Respondents, jointly and/or severally, from proceeding with any fresh process for the position of Vice Chancellor pending lawful determination of the recruitment process arising from the advertisement dated 21 January 2025 and from expending public funds on a parallel or duplicative recruitment process founded on an unlawfully terminated process. The order is held as overtaken by eventsd.That this Honourable Court be pleased to issue a Declaration that the Public Service Commission merit list arising from the recruitment process initiated on 21 January 2025 remained valid and lawful notwithstanding the withdrawal of the top-ranked candidate. The court held that the recruitment was tainted by illegality due to a lack of consultation and that the decision to re-advertise was lawful.e.That this Honourable Court be pleased to issue a Declaration that the University of Nairobi Council, as a continuing statutory body, had no lawful authority to repudiate, abandon or treat as spent the concluded decisions of its predecessor Council relating to the recruitment process in the absence of any finding of illegality or statutory breach. The court held that the University of Nairobi council had a lawful mandate to recruit the Vice Chancellor under section 35 and acted lawfully in the re-recruitment.f.That this Honourable Court be pleased to issue a Declaration that any failure to consult the Cabinet Secretary for Education, where alleged, constituted a procedural step capable of cure and did not in law justify the termination of a concluded, merit-based recruitment process. The court held the council acted unlawfully in the re-recruitment. 17.The Judicial Review Application is held to be without merit and is dismissed. The parties are in an employment relationship. To temper justice with mercy, I make no order as to costs. Each party to bear its own costs. 18.The file is marked as closed. 19.It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoEx parte Applicant - OrataThe University of Nairobi – Wangechi h/b Omondi2nd respondent – Wangechi3rd respondent – Ms Mbilo