Ogato v Kisii University & 2 others (Judicial Review E015 of 2021) [2024] KEELRC 494 (KLR)
The bottom line
#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 Motion was competent, having been filed under the same file number in which leave had been sought
- 2.Whether the ex-parte applicant had locus standi
- 3.Whether the proceedings were res judicata or sub judice
- 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
#Competency of the Motion and locus standi
The objection on competency and locus standi should not be determinative
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.
Res judicata and sub judice
No finding of res judicata or sub judice could be made
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.
Whether renewal of a Deputy Vice-Chancellor's contract required a competitive recruitment process by the PSC
No; renewal did not require a fresh competitive merit-based process
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.
Legal principles established
#- 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
#- 1.The Motion dated 28 December 2023 is dismissed
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Costs to the Respondents
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.
the Court finds no merit in the Motion dated 28 December 2023, and it is dismissed with costs to the Respondents.
this Court holds that the renewal or re-appointment of Professor Wanyama did not require a fresh competitive merit-based process.
The text reproduced above speaks to an appointment process and not the renewal of a contract or reappointment.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.