Dr. Wilfrida Itolondo & 4 others v The President & 4 others
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
#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
- 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
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, "Dr. Wilfrida Itolondo & 4 others v The President & 4 others", 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.