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ELRCDismissedKisumu Judicial Review Miscellaneous Application No. E015 of 2021

Ogato v Kisii University & 2 others (Judicial Review E015 of 2021) [2024] KEELRC 494 (KLR)

High Court of Kenya
14 February 2024
1,787 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex-parte applicant, granted leave by the Court of Appeal on 8 December 2023, sought judicial review of the renewal by the Kisii University Council of Professor Fredrick O. Wanyama's contract as Deputy Vice-Chancellor, contending that the renewal violated section 35(1)(a)(v) of the Universities Act (as amended in 2018), which requires appointment of Deputy Vice-Chancellors after a competitive process conducted by the Public Service Commission in consultation with the Cabinet Secretary. The 1st and 2nd Respondents challenged the competency of the Motion (same file number as the leave application) and the applicant's locus standi, and argued judicial review is confined to process, not merits; the Charter and Statutes empowered the Council to renew the contract. Professor Wanyama raised sub judice and res judicata based on four other proceedings. The Court held that the competency objection was a procedural technicality barred by Article 159(2)(d); no finding of res judicata or sub judice was possible absent the pleadings and orders from the other proceedings; and the locus standi issue could have been raised before the Court of Appeal. On the merits, the Court adopted the Court of Appeal's finding in Wilfrida Arnodah Itolondo v Attorney General that re-appointment of Vice-Chancellors does not require a fresh competitive process where contractual criteria are met, and held section 35(1)(a)(v) addresses appointments, not renewals. The Council was the organ mandated to decide renewal without PSC or Cabinet Secretary involvement. The Motion dated 28 December 2023 was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Motion was competent, having been filed under the same file number in which leave had been sought
  2. 2.Whether the ex-parte applicant had locus standi
  3. 3.Whether the proceedings were res judicata or sub judice
  4. 4.Whether the renewal/re-appointment of Professor Wanyama as Deputy Vice-Chancellor required a fresh competitive recruitment process conducted by the Public Service Commission under section 35(1)(a)(v) of the Universities Act

Key legal issues

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01

Competency of the Motion and locus standi

Holding

The objection on competency and locus standi should not be determinative

Reasoning

Article 159(2)(d) deprecates procedural technicalities; the Court adopted the position that separate file numbers for leave and the substantive Motion are a mere technicality. On locus standi, the matter raised a question of public interest on section 35(1)(a)(v), and the Respondents had not raised locus standi before the Court of Appeal when leave was granted.

p. 2
02

Res judicata and sub judice

Holding

No finding of res judicata or sub judice could be made

Reasoning

Professor Wanyama cited four pending or determined proceedings in Eldoret, Kisumu and Kericho but did not place before the Court the pleadings and/or orders from those proceedings. Without that material the Court could not make a finding of res judicata or sub judice, and the Court of Appeal had expressly granted leave to commence these proceedings.

p. 2
03

Whether renewal of a Deputy Vice-Chancellor's contract required a competitive recruitment process by the PSC

Holding

No; renewal did not require a fresh competitive merit-based process

Reasoning

Section 35(1)(a)(v) of the Universities Act addresses appointments, not renewals. The Court of Appeal in Itolondo held that re-appointment of VCs did not require re-opening recruitment where prescribed criteria were complied with. Section 16(1) of the Kisii University Charter envisages renewal, and the Council, which evaluates performance, may renew without PSC or Cabinet Secretary involvement.

p. 4

Legal principles established

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  • Renewal or re-appointment of a Deputy Vice-Chancellor or Vice-Chancellor of a public university does not require a fresh competitive merit-based recruitment process if the contractual criteria for renewal are met
  • Section 35(1)(a)(v) of the Universities Act speaks to an appointment process and not the renewal of a contract or re-appointment
  • The University Council has the mandate to determine whether to renew a Deputy Vice-Chancellor's contract without involvement of the Public Service Commission or Cabinet Secretary
  • Use of the same file number for leave and the substantive Motion is a procedural technicality that does not defeat judicial review proceedings

Court orders

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  1. 1.The Motion dated 28 December 2023 is dismissed
  2. 2.Costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review leave granted by the Court of Appeal on 8 December 2023; Article 159(2)(d) of the Constitution invoked on procedure

Relief refused

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Judicial review orders against the renewal of Professor Wanyama's contract

The Court found the renewal did not require a fresh competitive merit-based process; section 35(1)(a)(v) addresses appointments, not renewals

p. 5

Costs

Costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Court finds no merit in the Motion dated 28 December 2023, and it is dismissed with costs to the Respondents.
p. 5disposition
this Court holds that the renewal or re-appointment of Professor Wanyama did not require a fresh competitive merit-based process.
p. 4renewal of university officers' contracts
The text reproduced above speaks to an appointment process and not the renewal of a contract or reappointment.
p. 4interpretation of section 35(1)(a)(v) Universities Act
the issue of separate file numbers in judicial review proceedings while seeking leave and the substantive Motion is a mere technicality of the law which should not defeat a judicial review proceeding.
p. 2competency of judicial review Motion

Issues in the judgment

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minor

Caption/footer references 'Kisumu JR No. E015 of 2021' while the narrative refers to a Motion dated 28 December 2023 filed after leave granted on 8 December 2023; the file number and dates appear inconsistent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ogato v Kisii University & 2 others (Judicial Review E015 of 2021) [2024] KEELRC 494 (KLR)", Case Analysis (2024). Kisumu Judicial Review Miscellaneous Application No. E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/494/eng@2024-02-14

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