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ELRCDismissedPetition No. E009 of 2024 (lead file; consolidated with Petition No. E011 of 2024)· [2025] KEELRC 2615 (KLR)

Wamalwa & another v Cabinet Secretary, Ministry of Education & 12 others (Constitutional Petition E011 of 2024 & Petition E009 of 2024 (Consolidated)) [2025] KEELRC 2615 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2025
7,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two consolidated public interest petitions challenged the appointments of the Vice Chancellor and the Council Chairperson of Masinde Muliro University of Science and Technology. Petition No. E011 of 2024 by Eugine Antipah Wamalwa sought declarations that the appointments of the Vice Chancellor, Council Chairperson and Council members were null and void, with certiorari and prohibition. The court dismissed it at the preliminary stage because the petition was undated and unsigned and its supporting affidavit was not commissioned, rendering it incurably defective under the Mutunga Rules and the Oaths and Statutory Declarations Act. Petition No. E009 of 2024 by Johnson Simiyu Litema followed the respondents' non-response to a letter seeking the gazette notice appointing the Vice Chancellor and the doctorate certificate of the Council Chairperson. He sought declarations of illegality, quashing of Gazette Notice No. 6762, conservatory orders, nullification of subsequent appointments, and mandamus for accounts and repayment of salaries. The respondents raised preliminary objections on jurisdiction, locus standi, res judicata and format. The court held it had jurisdiction because recruitment and appointment are employment and labour relations matters, not confined to employer-employee disputes. On the merits it found the Vice Chancellor was competitively recruited and appointed, that no gazette notice is required for his appointment, and that the law does not require an 'earned' as opposed to honorary doctorate for the Council Chairperson. The petitions were dismissed, with no orders as to costs given their public interest character.

Key legal issues

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01

Competency of the consolidated petition E011 of 2024

Holding

Dismissed at the preliminary stage as unsigned, undated and unsupported by a commissioned affidavit

Reasoning

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.

p. 5
02

Jurisdiction of the ELRC over challenges to university appointments

Holding

The court has jurisdiction; employer-employee relationship is not the sole test

Reasoning

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.

p. 11
03

Whether the Vice Chancellor was lawfully appointed absent a gazette notice

Holding

The appointment was lawful; no law requires gazettement of a Vice Chancellor's appointment

Reasoning

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.

p. 14
04

Whether the Council Chairperson's honorary doctorate disqualified her

Holding

No disqualification; Section 36 and Section 7 of the Universities Act do not require an 'earned' doctorate

Reasoning

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

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  • 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

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  1. 1.Petition No. EO11 of 2024 is dismissed for being incompetent and incurably and fatally defective
  2. 2.Petition No. EOO9 of 2024 is dismissed on merits
  3. 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

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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, "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.