Wamalwa & another v Cabinet Secretary, Ministry of Education & 12 others (Constitutional Petition E011 of 2024 & Petition E009 of 2024 (Consolidated)) [2025] KEELRC 2615 (KLR)
The bottom line
#Kenya's Employment Court upheld Masinde Muliro University's Vice Chancellor and Council Chairperson appointments, dismissing both petitions as meritless or defective.
What this practically means
#Executive summary
#Key legal issues
#Competency of the consolidated petition E011 of 2024
Dismissed at the preliminary stage as unsigned, undated and unsupported by a commissioned affidavit
Rule 10(2)(f) of the Mutunga Rules requires a petition to be signed; the Oaths and Statutory Declarations Act requires affidavits to be commissioned. Copies obtained from the Case Tracking System confirmed the petition was unsigned and the affidavit uncommissioned. The court held such a pleading lacks authenticity and is incurably defective.
Jurisdiction of the ELRC over challenges to university appointments
The court has jurisdiction; employer-employee relationship is not the sole test
Reading Article 162 of the Constitution, the Employment and Labour Relations Court Act and the Employment Act, the court held that all matters relating to employment and labour relations fall within its jurisdiction, including recruitment and appointment, notwithstanding the absence of an employer-employee dispute. It made this finding conscious of Karisa Chengo and Samuel Kamau Macharia.
Whether the Vice Chancellor was lawfully appointed absent a gazette notice
The appointment was lawful; no law requires gazettement of a Vice Chancellor's appointment
The replying affidavits documented a competitive recruitment process by the Public Service Commission with the University Council, including interview on 10th August 2021 and appointment on 23rd September 2021 after acting capacity from March 2020. No statute requires the Cabinet Secretary to gazette such an appointment, and the petitioner cited no precedent for that assertion.
Whether the Council Chairperson's honorary doctorate disqualified her
No disqualification; Section 36 and Section 7 of the Universities Act do not require an 'earned' doctorate
The law only recommends a doctorate from a university recognized in Kenya and does not distinguish earned from honorary doctorates. There was no evidence that the awarding institution was unrecognized, and the PSC and CUE, the relevant appointing and regulatory bodies, were not joined as parties.
Legal principles established
#- Matters relating to recruitment and appointment fall within the jurisdiction of the ELRC even where no employer-employee dispute is pleaded, whether brought by petition, judicial review or ordinary cause
- A petition that is unsigned and whose supporting affidavit is not commissioned is fatally defective and must be dismissed
- The doctrine of presumption of regularity applies to public appointments; a challenger must avail evidence to the contrary
- The law does not distinguish between an 'earned' and an honorary doctorate for qualification as university council chairperson
Court orders
#- 1.Petition No. EO11 of 2024 is dismissed for being incompetent and incurably and fatally defective
- 2.Petition No. EOO9 of 2024 is dismissed on merits
- 3.There are no orders as to costs, the petitions being public interest litigation
- Jurisdiction invoked
- Article 162 of the Constitution; Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamalwa & another v Cabinet Secretary, Ministry of Education & 12 others (Constitutional Petition E011 of 2024 & Petition E009 of 2024 (Consolidated)) [2025] KEELRC 2615 (KLR)", Case Analysis (2025). Petition No. E009 of 2024 (lead file; consolidated with Petition No. E011 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2615/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.