Wilfrida Itolondo & 4 others v President & 7 others [2015] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal upheld Prof. Mugenda's reappointment as Kenyatta University Vice-Chancellor, ruling that due process under the governing statute was properly followed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court failed to determine whether or not there was any lawful appointment/reappointment to the position of Vice-Chancellor of Kenyatta University
- 2.Whether the alleged reappointment of the 6th respondent undermined the need for competitive recruitment of public officers contrary to Articles 10, 73, 134(2)(b), 135 and 232 of the Constitution
- 3.Whether the continued occupation of the Vice-Chancellor's office by the 6th respondent violated section 10 of the Kenyatta University Act
- 4.Whether the High Court misdirected itself as to the validity of Gazette Notice No.15500 dated 31st October, 2012
Key legal issues
#Whether the President's reappointment of the Vice-Chancellor was validly conveyed by the Permanent Secretary's letter
The Permanent Secretary merely conveyed the President's decision; the reappointment was a statutory function under the Act, not a constitutional power, so Article 135's writing and signature requirements did not apply
The Court read the Muthaura letter as conveying a decision already made by the President. It was never alleged that no signed reappointing instrument existed in the Office of the President. Moreover, the reappointment was made under section 10 of the Kenyatta University Act, a statutory function without prescribed form, so the constitutional requirement in Article 135 was inapplicable.
Whether competitive recruitment under Article 232 applied to a reappointment
Article 232(1)(g) on fair competition and merit did not apply because a reappointment under section 10(3) of the Act is not a fresh recruitment, and judicial review does not examine merit
The Court held the 6th respondent was being reappointed, not recruited, under section 10(3) of the Act which entitled her to seek renewal on expiry of her term. In any event, judicial review examines the decision-making process, not the merit of the decision, following Municipal Council of Mombasa vs R. & Others. The High Court therefore could not properly assess competitive recruitment.
Whether the gazette notice was essential to the validity of the reappointment
Gazettement was not required by section 10 of the Act or the Constitution and its absence or timing did not affect the validity of the reappointment
The Court agreed with the High Court that the gazette notice was merely an administrative act of publicity, directory in nature. Neither the statute nor the Constitution required that the reappointment be gazetted to take effect, and the appellants did not demonstrate how the notice impacted the validity of the reappointment.
Whether the High Court failed in its supervisory role by not directing the 7th and 8th respondents to investigate
That was not relief sought in the judicial review statement and could not be entertained on appeal as it was not an issue in the High Court
Order 53(4)(1) confines a judicial review applicant to the grounds and relief set out in the statutory statement. No mandamus was sought against the Ethics & Anti-Corruption Commission or the National Cohesion & Integration Commission. The Court cannot entertain a ground raised for the first time on appeal.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; courts cannot act as a court of appeal over the decision maker
- Under Order 53(4) of the Civil Procedure Rules, no grounds or relief may be relied on at the hearing of a judicial review motion except those set out in the statutory statement
- Unless the governing instrument expressly provides that an appointment is effective on gazettement, gazettement is merely directory and failure to gazette does not nullify the appointment
- Neither mandamus nor prohibition can quash a decision already made; absent a prayer for certiorari, granting such orders would be futile
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellants shall pay the costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. JR. Application No.232 of 2012
- Jurisdiction invoked
- First appeal from the High Court in judicial review proceedings under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules
Relief refused
#Declaration that the 6th respondent was not validly reappointed as Vice-Chancellor
The reappointment followed due process under section 10 of the Kenyatta University Act; the appellants had also not sought certiorari to quash the reappointment
Order that the Ethics & Anti-Corruption Commission and National Cohesion & Integration Commission act on complaints of malpractice
Not relief sought in the judicial review statement; Order 53(4) confines relief to the statement; not an issue in the High Court
Disturbance of the High Court's award of costs to the respondents
Award of costs is discretionary under section 27 of the Civil Procedure Act and no irregular exercise was demonstrated
Costs
The appeal was dismissed with costs; the appellants shall pay the costs of the appeal to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we dismiss this appeal in its entirely and order that the appellants shall pay its costs to the respondents.
Thus even as we comment on the impugned gazette notice later, we are satisfied that due process to reappoint the 6th respondent as Vice-Chancellor was carried out in accordance with the governing statute.
Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself.
the gazettement is merely directive and the failure to gazette the appointment does not necessarily nullify the appointment.
At any rate, the 1st respondent in re-appointing the 6th respondent was not exercising a power under the Constitution which would have required a written and sealed instrument under Article 135.
Issues in the judgment
#The judgment describes the Council as the 2nd respondent in one passage but as the 3rd respondent in another, and the Chancellor as both 3rd and 4th respondent, though the cause title lists the Council as 3rd and the Chancellor as 4th respondent
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Wilfrida Itolondo & 4 others v President & 7 others [2015] KECA 74 (KLR)", Case Analysis (2015). Civil Appeal No.120 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/74/eng@2015-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.