Okiya Omtatah Okoiti v Kenyatta University Council & others [2015] KEELRC 72 (KLR)

The court relied on Section 12(1) of the Industrial Court Act, 2011 and on Majanja J's reasoning in the USIU case, upheld by the Court of Appeal in the Mugendi case, that the Industrial Court, being a specialist court of the status of the High Court, may enforce constitutional rights incidental to labour matters. The recruitment and advertisement of a Vice Chancellor is a pre-employment process touching fair labour practices under Article 41, fair administrative action under Article 47 and access to information under Article 35(1).

The Respondents argued the Petitioner had no relationship with the 1st Respondent and was not envisaged under Section 12 of the Industrial Court Act. The court held that Article 22(1) grants every person the right to institute court proceedings claiming a right has been denied, violated or threatened, and Article 258(1) extends the same to constitutional contraventions. The court relied on its own prior holding in Wilfred Otieno Okoth v County Government of Kisumu where a petitioner alleging an unfair recruitment process had locus despite being neither employer nor employee.

The applicant contended the advert was tailored to favour a preferred candidate, lacked objective criteria for appointment not found in the Kenyatta University Charter or subsidiary regulations, and required a referee recommendation from the current employer which would disadvantage applicants in bad standing with their employer. The court identified the referee requirement as a glaring omission/problem and further noted the failure to provide for public memoranda on published candidates and the exclusion of the academic staff union. It held a flawed process must be corrected before proceeding, not nullified after.

The 2nd Interested Party, a union of academic staff, demonstrated by correspondence that it sought to participate in the recruitment process but was ignored. The Respondents argued an employee cannot sit with the employer to discuss its own employment. The court rejected this, holding the union's input in setting criteria for appointment of the Vice Chancellor is central to fair labour practices and that Article 41 guarantees employees the right to join and participate in trade union activities whose mandate includes ensuring fair labour practices.

The court found that under the State Corporations Act, proceeding on leave is mandatory for Chief Executive Officers. With the incumbent's term expiring on 31st March 2016, less than six months away, allowing her to remain in office would create a perception that the recruitment of the next Vice Chancellor was influenced by her or her allies. Terminal leave would pave way for a transparent, open and participatory recruitment.