Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedPetition dated 2nd December, 2019· [2020] KEELRC 6 (KLR)

Okiya Omtatah Okoiti v Public Service Commisison & 2 others; Council, Garissa University & another (Interested Parties) [2020] KEELRC 6 (KLR)

High Court of Kenya
22 December 2020
6,085 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court cancelled the recruitment of Vice Chancellors at Garissa and Laikipia universities because the process was not transparent and conflicted with the law.

What this practically means

#

Executive summary

#
The petitioner moved the court by Notice of Motion dated 2nd December 2019 under articles 20, 22, 23(3), 50(1), 159(2)(d), 162(2)(a), 165(5) and 258 of the Constitution seeking conservatory orders prohibiting the Public Service Commission from conducting interviews for the positions of Vice Chancellor and two Deputy Vice Chancellors at Garissa University scheduled for 3rd December 2019. The petition challenged the recruitment of Vice Chancellors and Deputy Vice Chancellors for Garissa and Laikipia Universities on grounds that the process was opaque, that no long or short lists of applicants were publicised, that the public was given only one working day to comment on shortlisted candidates, and that the PSC invited the chairpersons and council members of the subject universities onto the interview panels contrary to section 35(1)(a)(v) as amended and section 39(1)(a) of the Universities Act. The respondents and interested parties opposed the application, arguing it was moot, that the petitioner lacked standing, that the co-opted council members had no vote, and that the petition was an abuse of process for personal interests. The court on 3rd December 2019 stayed the interviews and extended the interim orders. Holding that the matter was not moot since the interim orders remained alive, that the petitioner was a proper party, and that the recruitment breached the mandatory advertising requirements of section 37 of the Public Service Commission Act and the conflict-of-interest prohibitions of the amended Universities Act, the court rendered the recruitment process a nullity ab initio, declared the inclusion of council members invalid, restrained the interviews as currently constituted pending the hearing of the petition, and ordered costs to abide the petition.

Key legal issues

#
01

Whether the application was moot after interviews were allegedly conducted

Holding

The matter was not moot because the court's orders of 3rd December 2019 stopped the recruitment process and remained alive and in force

Reasoning

The court had stayed the interviews on 3rd December 2019, the date they were scheduled. Service on the PSC was effected on 2nd December 2019 and confirmed in the Replying Affidavit of Mr Rotich dated 4th December 2019. The interim orders were extended and remained in force, so the entire recruitment process was arrested and the subject matter remained active and alive.

p. 5
02

Whether the petitioner had standing under articles 22 and 258 of the Constitution

Holding

The petitioner was a proper party; the petition was premised on enforcement of constitutional and statutory provisions on public recruitment

Reasoning

The court acknowledged that public interest litigation must not be used as a proxy for personal interests, citing Daniel Muthama Muoki, Shenzhen Mindray and Brian Asin. However, the petition was premised on the application and enforcement of constitutional articles and sections 35(1)(a)(v) and 39(1)(a) of the Universities Act concerning the validity of the recruitment process, which allowed the petitioner to move the court under articles 22 and 258 for conservatory orders.

p. 5
03

Whether the PSC's recruitment process complied with the law and Constitution

Holding

The process was invalid: the PSC failed to publish long and short lists in breach of section 37 of the Public Service Commission Act and articles 10 and 232, and the inclusion of council chairpersons and members in interview panels violated sections 35(1)(a)(v) and 39(1)(a) of the Universities Act

Reasoning

Section 37 of the Public Service Commission Act requires advertisement in at least one daily newspaper of nationwide coverage and other modes of communication in mandatory terms; only a website notice was posted. The participation of council members, justified under section 12(2) of the PSC Act, conflicted with the amended Universities Act which restricts the council and cabinet secretary to appointing from names submitted by the PSC after an independent competitive process. The conflict of interest rendered the process null and void ab initio.

p. 8
04

Whether conservatory orders should issue

Holding

A prima facie case with a likelihood of success and prejudice were demonstrated, warranting a conservatory order of injunction

Reasoning

Applying Gatirau Peter Munya on the public-law nature of conservatory orders, and Mrao Ltd on prima facie case, the court found the petitioner had established a genuine and arguable case of breach of the constitution and the law, warranting a conservatory order of injunction pending the hearing of the petition.

p. 8

Legal principles established

#
  • Conservatory orders bear a public-law connotation and are granted on inherent merit bearing in mind public interest, constitutional values and proportionate magnitudes
  • Public service recruitment must comply with mandatory advertising requirements under section 37 of the Public Service Commission Act and constitutional values of transparency and accountability
  • The PSC must conduct an independent recruitment of Vice Chancellors free of council participation, failing which the process is invalid
  • Definition of a prima facie case in civil applications

Court orders

#
  1. 1.The process of recruitment and appointment of the new Vice Chancellor and Deputy Vice Chancellor for Garissa and Laikipia universities is rendered a nullity ab initio
  2. 2.A declaration that the Public Service Commission's inclusion of chairperson and council members in the interview panels renders the recruitment and appointment invalid
  3. 3.An injunction restraining the respondents from proceeding to conduct interviews for the positions at Garissa University as currently constituted pending the hearing of the Petition
  4. 4.Costs shall abide the petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 24, 27, 41, 47, 73, 75, 77, 129, 153, 159(2)(d), 162(2)(a), 165(5), 232, 233, 258, 259, 260
  • Universities Act, 2012Sections 35(1)(a)(v) and 39(1)(a), as amended by the Statute Law (Miscellaneous Amendments) Act No. 18 of 2018
  • Public Service Commission ActSections 12(2) and 37(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 7(2), 18, 19, 23 and 24

Cases cited (8)

  • Daniel Muthama Muoki versus Ministry of Health & another; Shenzhen Mindray Bio-Medical Electronics Co. Ltd & 5 others (Interested Parties)
    [2020] eKLR
  • Brian Asin & 2 Others versus Wafula W. Chebukati & 9 Others
    [2017] eKLR
  • Platinum Distillers Limited versus Kenya Revenue Authority
    [2019] eKLR
  • Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Okiya Omtatah Okoiti & 3 others versus Nairobi City County & 5 others
    [2014] eKLR
  • Benson Riitho Mureithi -vs- J.W Wakhungu and 2 Others
    Pet No. 19 of 2014
  • Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Board of Management of Uhuru Secondary School versus City County Director of Education & 2 Others
    [2015] eKLR
Jurisdiction invoked
Articles 20, 22, 23(3), 50(1), 159(2)(d), 162(2)(a), 165(5) and 258 of the Constitution, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Okiya Omtatah Okoiti v Public Service Commisison & 2 others; Council, Garissa University & another (Interested Parties) [2020] KEELRC 6 (KLR)", Case Analysis (2020). Petition dated 2nd December, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/6/eng@2020-12-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.