Okiya Omtatah Okoiti v Public Service Commisison & 2 others; Council, Garissa University & another (Interested Parties) [2020] KEELRC 6 (KLR)
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
#Key legal issues
#Whether the application was moot after interviews were allegedly conducted
The matter was not moot because the court's orders of 3rd December 2019 stopped the recruitment process and remained alive and in force
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.
Whether the petitioner had standing under articles 22 and 258 of the Constitution
The petitioner was a proper party; the petition was premised on enforcement of constitutional and statutory provisions on public recruitment
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.
Whether the PSC's recruitment process complied with the law and Constitution
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
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.
Whether conservatory orders should issue
A prima facie case with a likelihood of success and prejudice were demonstrated, warranting a conservatory order of injunction
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.
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.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.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.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.Costs shall abide the petition
- 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.