Towett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commisison & 2 others (Interested Parties) [2020] KEELRC 570 (KLR)
The bottom line
#The Employment Court dismissed a petition seeking to block university leadership appointments, ruling that corruption allegations belong to the EACC, not that court.
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 court has jurisdiction to hear and determine the petition
- 2.Whether the orders and declaration sought should issue
- 3.Whether the petitioners satisfied the provisions of Article 258 of the Constitution in instituting the petition
Key legal issues
#Jurisdiction of the ELRC over allegations of embezzlement, abuse of office and procurement irregularities
The court lacks jurisdiction; the substantive issue is alleged embezzlement and abuse of office, which falls within the EACC's mandate, not the ELRC
Although appointments to public office touch on employment and labour relations under Article 162, the core of the petition was stopping appointments to allow investigations over alleged embezzlement and abuse of office. Such allegations are ordinarily for the EACC, the body constitutionally mandated and equipped to investigate them. The court therefore lacks jurisdiction and must down its tools.
Whether the petitioners satisfied Article 258 standing requirements
No - the petitioners did not describe themselves or specify the capacity in which they filed; the petition suggests a private-law motive
The petitioners gave no description of themselves beyond invoking Article 258. Respondents indicated they are employees on secondment facing disciplinary proceedings, suggesting the petition was filed to divert attention. The court questioned whether the matter was in the public interest or the private law arena.
Compliance with the Anarita Karimi Njeru precision threshold
The petition fails the threshold; allegations were conjecture and annexures were unreliable
The petition did not set out with precision the constitutional provisions infringed and the manner of infringement. The annexures relied on (schedule of payments, incomplete tenancy agreement, letter on legal services) did not constitute evidence of malpractice, amounting to a fishing expedition and abuse of court process.
Lawfulness of the recruitment process under the amended Universities Act
Following the amendment effective 18th January 2019, the PSC is mandated to competitively recruit Vice Chancellors, Deputy Vice Chancellors and Principals of constituent colleges; the process was lawful and transparent
Section 35(1)(a)(v) of the Universities Act, 2012 as amended placed the recruitment mandate with the PSC, undertaken in consultation with the Cabinet Secretary. The 4th respondent had advertised and shortlisted openly; the PSC took over the process per section 37 of the Public Service Commission Act. Stopping the process on competence or suitability grounds was pre-emptive and would disadvantage the candidates.
Legal principles established
#- Where a court lacks jurisdiction, it must down its tools and cannot entertain the matter
- A petitioner enforcing the Constitution must specify the capacity in which they come to court under Article 22 or 258; mere assertion is insufficient
- A constitutional petition must set out with reasonable precision the provisions said to be infringed and the manner of infringement
- A party is bound by their pleadings in the adversarial system
Court orders
#- 1.The Petition is dismissed for want of jurisdiction
- 2.Costs awarded to the respondents and the 1st Interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) and (3) of the Constitution, 2010 (employment and labour relations jurisdiction)
Relief refused
#Conservatory order barring the 4th respondent from conducting interviews of the 1st, 2nd, 3rd and 6th respondents
The court is without jurisdiction; stopping the recruitment process was premature and without foundation
Declarations on violation of Articles 73, 10 and 232 of the Constitution regarding appointments
Petition does not meet the Anarita Karimi Njeru precision threshold and allegations are based on conjecture
Order directing the 5th respondent (EACC) to commence investigations
Matters of embezzlement and abuse of office are for the EACC; compelling it is premature
Order compelling the 4th respondent to commence disciplinary proceedings
Outside the court's jurisdiction; the forum for procurement complaints is not this court
Order that PSC show cause and give interview results
Petitioners never sought the information under Article 35 before coming to court
Costs of the petition
Petitioners persisted despite being alerted to the jurisdictional defect
Costs
Costs awarded to the respondents and the 1st Interested party.
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.
Where then the substantive issue at hand is as analysed above, as correctly submitted by the respondents and the 1st interested party, the court is without jurisdiction and should down its tools.
The Petition is hereby dismissed for want of jurisdiction. Costs awarded to the respondents and the 1st Interested party.
a person seeking redress from the court on a matter which involves a reference to the Constitution, should set out with reasonable degree of precision in particular how the alleged acts amount to infringement of the person’s constitutional rights
To move the court and require for an order to commence investigation is premature and obvious implication on the petitioners that they have moved the court on a fishing expedition as it were.
It is not sufficient for a party to simply allege and or assert they are covered under Article 258 of the Constitution, 2010.
Issues in the judgment
#The judgment inconsistently dates the Statute Law (Miscellaneous Amendment) Act, at one point as 2019 and elsewhere as No.18 of 2018
The 5th respondent's name is misspelt in the cause title as 'ETHICS & ANTI CORRUTPION COMMISSION'
Inconsistency in dates: petition alleges interviews 'scheduled for 8th February, 2018' while elsewhere the date is stated as 8th February, 2019
Citation of section 28 attributed to 'the Ethics and Anti-Corruption Act' rather than the Anti-Corruption and Economic Crimes Act or the EACC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Towett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commisison & 2 others (Interested Parties) [2020] KEELRC 570 (KLR)", Case Analysis (2020). Petition No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/570/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.