Case ID:166528

Wilfrida Arnodah Itolondo v Attorney General & 9 others [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 120 of 2019

Parties:

Wilfrida Arnodah Itolondo v Attorney General, Cabinet Secretary, Ministryof Education, Techinical University of Kenya Council, Jaramogi Oginga Odinga University Council, University of Kabiaga Council, Maasai Mara University Council, Francis Aduol,Stephen Agong, Wilson Kipng’eno & Mary Walingo

Date Delivered:

20 Nov 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Judgment

Judge(s):

Martha Karambu Koome, Daniel Kiio Musinga, Agnes Kalekye Murgor

Citation:

Wilfrida Arnodah Itolondo v Attorney General & 9 others [2020] eKLR

Case History:

(Being an Appeal from the judgment and decree of the Employment and Labour Relations Court of Kenya at Nairobi (M. Onyango, J.,) dated 15th February, 2019 in ELRC Petition No. 66 of 2018)

Court Division:

Civil

County:

Nairobi

History Docket No:

Petition 66 of 2018

History Judges:

Maureen Atieno Onyango

History County:

Nairobi

Case Outcome:

Appeal dismissed with costs to the Respondents

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(

CORAM: KOOME, MUSINGA & MURGOR, JJ.A.)

CIVIL APPEAL NO. 120 OF 2019

BETWEEN

DR. WILFRIDA ARNODAH ITOLONDO...................................APPELLANT

AND

ATTORNEY GENERAL......................................................1

ST

RESPONDENT

CABINET SECRETARY, MINISTRYOF EDUCATION....2

ND

RESPONDENT

TECHINICAL UNIVERSITY OF KENYA COUNCIL......3

RD

RESPONDENT

JARAMOGI OGINGA ODINGA

UNIVERSITY COUNCIL................................................4

TH

RESPONDENT

UNIVERSITY OF KABIAGA COUNCIL.......................5

TH

RESPONDENT

MAASAI MARA UNIVERSITY COUNCIL....................6

TH

RESPONDENT

PROF. FRANCIS ADUOL...............................................7

TH

RESPONDENT

PROF. STEPHEN AGONG..............................................8

TH

RESPONDENT

PROF. WILSON KIPNG’ENO.......................................9

TH

RESPONDENT

PROF. MARY WALINGO............................................10

TH

RESPONDENT

(Being an Appeal from the judgment and decree of the Employment and Labour Relations Court of Kenya at Nairobi (M. Onyango, J.,) dated 15

th

February, 2019

in

ELRC Petition No. 66 of 2018)

********************

******

JUDGMENT OF THE COURT

[1]

As the heading suggests, this is an appeal against the judgment of the

Employment and Labour Relations Court

(ELRC) delivered on 15

th

February, 2019 in

ELRC Petition No. 66 of 2018

(M. Onyango, J.). The brief background of the matter is that,

Dr. Wilfrida Arnodah Itolondo

(the appellant) filed a Petition before ELRC on or about June, 2018 seeking several declaratory and mandatory orders of injunction to the effect that the respondents violated several

Articles of the Constitution in the re-appointment of the Vice Chancellors (VCs) of four Public Universities namely;

Technical University of Kenya

, (the 3

rd

respondent),

Jaramongi Oginga Odinga University Council

(the 4

th

respondent),

University of Kabianga

(the 5

th

respondent) and

Maasai Mara University

(the 6

th

respondent).

[2]

The appellant described herself as a public spirited individual and a defender of the Constitution. In justifying her

locus standi

to institute the Petition, she cited the provisions of

Articles 3 (1), 22, 50

and

258

of the Constitution, to bolster her argument that she was pursuing a public interest matter, also as provided under Articles 22(1) and 258(1) of the Constitution which may be instituted by—

a. a person acting on behalf of another person who cannot act

in their own name;

b. a person acting as a member of, or in the interest of, a group or class of persons;

c. a person acting in the public interest; or

d. an association acting in the interest of one or more of its members”.

The appellant’s prayers were that the re-appointment to office of the Vice Chancellors of the 3

rd

to the 6

th

respondents whom she claimed were appointed in office contrary to the provisions of the Constitution be nullified, and the Court to declare that the provisions of Section 39 (3) of Universities Act, the respective rules and regulations contained in the Charter and the governance code of State corporations (Mwongozo) unconstitutional for failing to provide for a competitive re-appointment for the office of the VC of public universities.

[3]

In support of these substantive reliefs, the appellant narrated how she encountered from the media on 20

th

May, 2018 a statement indicating that the 2

nd

respondent had re-appointed the 6

th

to the 10

th

respondents, which in her view was done contrary to the provisions of the Constitution. The appellant also pointed out that she had on several occasions made efforts to raise concerns with respondent regarding the re-appointment of the VCs of Public

Universities. Further, on 27

th

October, 2016, the appellant wrote to the 2

nd

respondent protesting a clause in the Draft Regulations under the

Universities

Act, 2012

concerning the re-appointment of the VCs of Public Universities that had been issued by the Ministry of Education which stated that

“one will be

eligible to a 2

nd

term following a positive appraisal by the council”

be amended as it was contrary to the values provided for in the Constitution.

[4]

In summary, the gravamen of the appellant’s complaints is that the re-appointment of the aforementioned VCs of public universities was done contrary to the national values and principles of governance that are enshrined in the Constitution. The appellant contended that those values and principles bind all state officers, state organs and public officers; that the re-appointments of the VCs undermined the principles of public participation of the people, social justice, equity, nondiscrimination, inclusiveness and transparency among others; that the process of re-appointment was not competitive as there was no advertisement, shortlisting of applicants and invitation of the public to present memoranda. Moreover, no audit was carried out in the Universities before the reappraisals were done and the whole process was carried out in secrecy without public scrutiny.

[5]

The matter was heard by

M. Onyango, J.

, who identified a singular issue for determination and that was; whether the re-appointments of the 7

th

to the 10

th

respondents as Vice Chancellors of the 3

rd

to the 6

th

universities violated

Articles

2, 3, 10, 35, 232

and

section 7

of the 6

th

Schedule of the Constitution and

section 39 (1) (a)

of the

Universities Act, 2012

. After considering the matter, the Judge was satisfied that the 7

th

to the 10

th

respondents were eligible candidates for re-appointment as per the

Universities Act

. The Judge also found the issues had been determined by the Court of Appeal in

Civil Appeal No. 120 of 2014

which was filed by the same appellant and which was binding on the trial court. Also, the Judge held that the process of re-appointments as VCs of the respective Universities was properly carried out by the Councils and therefore did not

contravene the

Universities Act

or statutes. The Petition was dismissed and each party was ordered to bear their own costs.

[6]

The aforesaid judgment is what provoked the appellant to file the instant appeal. The appellant has cited some fifteen (15) grounds of appeal which are prolix and repetitive. Nonetheless in her written submissions, the appellant summarised the grounds into some four thematic areas. Those grounds are; whether the learned trial Judge erred in law by holding that there was no proof of violation of Articles 3, 10, 27, 35, 73 and 232 of the Constitution by the 2

nd

respondent in the re-appointment of the 7

th

to the 10

th

respondents in office as Vice Chancellors; whether the re-appointment contravene the Universities Act, 2012 and or statutes; whether the court was bound by the Court of Appeal decision in the

Wilfreda Itolondo & 4 Others vs. President and 7 Others

[2015] eKLR,

and finally, whether the Judge erred by failing to pronounce herself as to whether the provisions of a Circular by the Permanent Secretary/Secretary to the Cabinet and Head of Civil Service dated 23

rd

November, 2010 on the Procedure for re-appointment of the Chief Executive Officers (CEOs) in State Corporations at the expiry of the first term was null and void for being inconsistent with the provisions of the Constitution and the Universities Act, 2012 on the procedure of appointment of Vice Chancellors of public Universities.

[7]

The plenary hearing of this appeal took place virtually in line with the Court of Appeal Practice Directions due to the prevailing extreme conditions brought about by the COVID -19 Pandemic. The appellant who was acting in person relied on her written submissions and very ably made some oral highlights. She was categorical that there was blatant violation of the Constitution in the appointment of the 7

th

to the 10

th

Vice Chancellors who are public officers as the recruitment to office for a second term was not done competitively as required by law; that there was no advertisement inviting qualified persons to apply and all that goes with recruitment in public offices, therefore there was no transparency, participation or accountability which was a violation of the provisions

Articles

10, 35

and

232

of the Constitution as well as

sections 35

and

39

of the

Universities Act.

[8]

The appellant went on to urge that the 7

th

to 10

th

respondents were re-appointed based on merit and performance which was not openly evaluated, thereby undermining the values provided in the Constitution. The appellant dismissed a justification put forward by the respondents that in the re-appointment of the Vice Chancellors, they were guided by the

Mwongozo Code

of Governance for State Corporations; Public Service Commission (PSC) Guidelines for implementation of Performance Rewards and Sanctions in Public Service

. According to the appellant, appointment to public office, like the one of the VC of a public university must be done through a fair competition based on merit and these high values cannot be overturned by an Act of Parliament, let alone a policy directive by the Minister. To bolster this preposition, the appellant cited the case of

Hassan Joho & Another vs.

Suleiman Said Shahbal & 2 Others

[2014] eKLR

para 85. Thus, the Judge erred by elevating a policy instrument above the Statutes and the Constitution.

[9]

Commenting on the

Universities Act

, the appellant readily agreed that it was silent on the question of procedure of appointment of a VC of the public university at the expiry of the first term. Nonetheless, she faulted the Attorney General for failing to initiate a Bill in Parliament to address the lacuna even after the appellant gave an alert by filing the aforesaid petition. On the question of the court being bound by its own decision, the appellant was of the view that the decision of this Court in

Civil Appeal No 120 of 2014

was erroneous and was not supported by the law. Moreover, the appellant argued that she had sought an order of mandamus and prohibition in the said suit whereas the petition before the ELRC on this matter was different as she sought declaratory and mandatory injunctive orders; and that no decision is cast in stone as a court of law can always depart from an earlier decision depending on the prevailing circumstances. To this end the appellant cited the case of

National Bank Limited vs. Anaj

Warehousing Limited

[2015] eKLR

where it was stated as follows:

“ …Even as stare decisis assures orderly and systematic approaches to dispute resolution, the common law retains its inherent flexibility, which empowers the courts, as the custodians of justice under the Constitution, to proceed on a case-by-case basis, invoking and applying equitable principles in relation to every dispute coming up”

To sum up on this issue of stare decisis, the appellant cited several cases by the ELRC where the Judges have set aside their own orders.

[10]

The appellant was emphatic that in a public appointment, the values enshrined in the Constitution are critical as they guarantee an open process where a candidate is subjected to an audit on merit and integrity. This process allows the public to scrutinize a candidate; that it came to pass that the 10

th

respondent was found to have integrity issues in what has come to be known as the “

Maasai Mara

Heist of 2019

”. Therefore, her skepticism and apprehension that an open process in re-appointment has merit had been vindicated. Although the appellant stated that she did not personally know the four VCs, she stated that she was pursuing a public interest matter that affects a cross section of the public. Finally, it was the

appellant’s plea that her prayer was that all public institutions should engender the values of an open and democratic society that uphold integrity as a hallmark for one to serve in public office which should not be compromised at the altar of prudence use of public resources.

[11]

The appeal was opposed by several counsel on record for the respondents.

Ms Wangechi Gichunge

for the 1

st

and 2

nd

respondents did not file written submissions but associated herself with the submissions made by the other respondents.

Mr. Okinyo

appeared for the 3

rd

and 7

th

respondents;

Ms Nyamita

for the 4

th

and 8

th

respondents;

Mr. Otury

for the 5

th

and 9

th

respondents and

Ms

Awour

for the 6

th

and 10

th

respondents.

[12]

Addressing us on the submissions on behalf of the 3

rd

and 7

th

respondents,

Mr. Okinyo

argued that the appointment of the 7

th

respondent did not offend any law. He cited the provisions of

Article 232 (1) (g)

of the Constitution which provides the values and principles of public service and provides for a fair

competition and merit as the basis of appointments and promotions. As regards the appointment of vice chancellors, Mr. Okinyo cited

section 39 (1)

and

(3)

of the

Universities Act

which provides:

“ (1) The Vice- Chancellor of a university shall be appointed-

(2)…

(3) The Vice- Chancellor of a public university shall hold office for a term of five years and shall be eligible for a further term of five years.”

Counsel submitted that the meaning of the word “eligible” according to the Concise Oxford Dictionary, 12

th

Edition is “satisfying the appropriate conditions.”

He added that the 7

th

respondent’s contract contained a renewal clause and therefore he had a legitimate expectation that once the conditions laid down in the law were met, he would be re-appointed for a further term of five (5) years which was done and therefore the suit herein is overtaken by events.

[13]

Counsel further submitted that the 7

th

respondent’s performance was

satisfactory, which was backed by empirical feedback; that he had expressed his willingness to continue serving six months before the contract came to an end, and for that matter the 3

rd

respondent had not given him notice that his contract was not going to be renewed. The appellant did not challenge the appointment of the 7

th

respondent on 16

th

May, 2013 when he was first appointed, which means his appointment was in compliance with the Constitution. This issue was litigated by the appellant before when she challenged the re-appointment of the 7

th

respondent and this Court held that the respondent was not being recruited but was being re-appointed and that it is fresh recruitment that would have necessitated a competitive process. According to counsel for the 7

th

respondent, the appellant is litigating over the same subject matter while hypothesizing a public interest angle which is a mere vile for publicity seeking and vested interest.

[14]

On the part of Ms

Nyamita

for the 4

th

and 8

th

respondents, she pointed out that the letter of appointment of

Prof. Agong

of Jaramongi Oginga Odinga

University was dated 10

th

July, 2013. It stated, among others, that the employment was for five (5) years with effect from 20

th

June, 2013 and he was eligible for re-appointment based on performance, and he was required to indicate his interest

six (6) months before the expiry of the contract. The 8

th

respondent duly applied for renewal of the contract; and was evaluated by the Council scoring 87% thereby meeting the criteria for re-appointment. Counsel was of the view that the Constitution did not envisage anybody eligible for re-appointment to a public office being taken through a fresh competitive process because the values that a candidate had satisfied in the initial appointment were still the same as they were involving the same appellant. Thus, counsel agreed with the submissions made

on behalf of the 3

rd

and 7

th

respondent that the appellant has been litigating on the same issue that was determined by this Court in

Civil Appeal No 120 of 2014

(supra) and thereby abusing the court process. Counsel therefore urged us to dismiss the appeal.

[15]

Next to address us on behalf of the 5

th

and 9

th

respondent was

Mr. Otura

. He submitted that the 5

th

respondent went into a detailed process of appointment of the 9

th

respondent. That the

Universities Act

and the

Kabianga University

Charter

allowed the 9

th

respondent to apply for re-appointment, which issue was

extensively determined in this Court’s decision in

Civil Appeal No 120 of 2014.

According to counsel, this Court is being asked to sit on a matter requiring legislation and craft a law on re-appointments on behalf of public universities. He added that the 9

th

respondent was an eligible candidate for re-appointment as he had only served one term. Further, the process of re-appointment was in consonance with the

section 39 (1) (a)

, and the University Charter that prescribe a detailed procedure of evaluation before the re-appointment. We were urged to dismiss the appeal as lacking in merit, and the same issues having been determined in the earlier judgment of this Court.

[16]

Ms Awour

made submissions on behalf of the 6

th

and 10

th

respondents. She echoed what was said by the other respondents as regards the provisions of the Universities Act and the Government policy on re-appointment known as

Mwongozo;

that the 10

th

respondent was duly re-appraised by the Council and was properly re-appointed for a further term of five (5) years. Commenting on the allegations that her client the 10

th

respondent was involved in

“Maasai Mara

University Heist”,

counsel submitted that apart from this being a new matter that the appellant was introducing in the appeal for the first time, the said allegations are subject of criminal proceedings that are ongoing. The 10

th

respondent has not been found culpable and it will be premature to introduce that matter in this appeal which was not before the High Court. Counsel also urged that this appeal be dismissed as the issues were determined in Civil Appeal No. 120 of 2014.

[17]

In a brief rejoinder, the appellant acknowledged that although a detailed and competitive process of re-appointment of VCs is not provided for in the Universities Act, the respondents should always follow the values stated in the Constitution. She faulted the 1

st

and 2

nd

respondents for sleeping on their jobs while impunity reigns in the appointment of senior public officers who are not vetted and scrutinized publicly on integrity and use of public resources as it

happened with the 10

th

respondent. Had the VCs been subjected to public hiring, what happened with the 6

th

respondent could have been unearthed to save the public colossal sums of money that were misappropriated. The appellant urged us to allow the appeal.

[18]

We have considered the record, submissions by counsel and the law. We recognize that in this matter no oral evidence was adduced. That notwithstanding, our duty remains constant in a first appeal. It is to re-assess and re-evaluate the entire evidence and material tendered before the trial court and reach our own conclusions, while giving due reverence to the Judge’s exercise of discretion on findings of fact and law, unless there is no evidence in support of the said findings, or the findings are plainly not founded in law. This much was restated by this Court in

Musera vs. Mwechelesi & Another

([2007]) KLR 159:

“We must at this stage remind ourselves that though this is a first appeal to us and while we are perfectly entitled to make our own findings on the evidence, the trial Judge has in fact made clear and unequivocal findings and as an appellate court we must indeed be very slow to interfere with the trial Judge’s findings unless we are satisfied that either there was absolutely no evidence to support the findings or that the trial Judge must have misunderstood the weight and bearing of the evidence before him and thus arrived at an unsupportable conclusion.”

Also, in

Mbogo & another vs.Shah

[1968] EA 93 at 96

,

this Court stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

[19]

That said, we will proceed to determine whether the re-appointment of the VCs violated the Constitution and other laws. We appreciate that the appellant readily admitted that the

Universities Act, 2012

did not provide that there be a competitive procedure for the re-appointment of VCs to the Public Universities.

Further, the University Charters for the 3

rd

to the 6

th

respondents provided a procedure of re-appointment that gave the serving VCs an option to re-apply six months before expiry of the first term. The appellant however contended that the

procedure ran afoul with the Constitution; that she notified the 1

st

respondent to amend the Act and it was due to the failure by the 1

st

respondent to move the necessary amendments to the Universities Act to align it with the Constitution that has perpetuated unfairness in re- hiring of VCs of public universities.

[20]

Just like the appellant appreciated, the learned trial Judge was also in agreement that

section 39

of the

Universities Act

provides for the appointment of VC, but was silent on whether the university council should carry out a competitive process of re-appointment so long as the candidate is eligible. This is what the section provides:

“1. The vice chancellor of a University shall be appointed;

(a) In the case of a Public University, by the Cabinet Secretary on recommendation of the Council, after a competitive recruitment process conducted by the council; and

…

(3) The Vice Chancellor of a public university shall hold office for a term of five years and shall be eligible for a further term of five years.”

The above provision of the law was also reinforced by the provisions of the Code of Governance for state corporations (Mwongozo) which provides that a subsequent term of a CEO of a corporation is renewed based on a favourable evaluation as spelt out in the regulations. Unless the re-evaluation was faulty, which was not the case here, we are persuaded, that, to declare the re-appointment a nullity when the 6

th

to the 10

th

respondents were taken through the re-appointment process would also undermine the principle and value of good governance, a principle that governs public institutions. We find no merit in this ground of appeal.

[21]

The appellant also acknowledged that she has litigated over this same issue of re-appointment of VCs of public universities in this Court in

Civil Appeal No.

120 of 2014

but urged us to depart from the ruling of this Court. In that case, the appellant with others had sued

Kenyatta University Council

for re-appointing

Prof. Olive Mugenda

for a second term on the same grounds as in this case, contending that the re-appointment was not competitive and that it was a violation of the Constitution. This is what this Court had to say in a pertinent paragraph of the judgment:

“

What we glean from the above-quoted part of the submissions

is that the appellants are arguing that their application was brought as litigation in the interest of the public to litigate, among others, the need and requirement that public offices be filled by way of competitive recruitment so that merit is upheld in appointments and promotions. The appellants appear to claim that that principle in public service was not upheld when the 6

th

respondent was reappointed as Vice-Chancellor. From whatever angle one looks at this argument, it raised two points. Firstly, the 6

th

respondent was not being recruited and therefore appointed into office. Hers was a reappointment as provided for under section 10(3) of the Act. In this context the aspect of “competitive recruitment” did not arise. Secondly, the orders sought through judicial review proceedings could not and did not admit to considering the aspect of merit in the reappointment or appointment, for that matter.

The appellant asserted that the above decision was arrived at through mistake, in other words, it was a judgment that was delivered

per incuriam

and we should depart from it.

[22]

This was indeed a profound statement by the appellant when she urged this Court to depart from a timeless treasured doctrine of

stare decisis

or precedent without giving any reason at all. In

Jasbir Singh Rai and Three Others vs. The

Estate of Tarlochan Singh Rai and Four Others

, this Court of stated as follows:

“For the special role of precedent in the certainty and predictability of the law as it plays out in daily transactions, any departure is to be guided by rules well recognized. It is a general rule that the Court is not bound to follow its previous decision where such decision was an obiter dictum(side-remark), or was given per incuriam (through inattention to vital, applicable instruments or authority). A statement obiter dictum is one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law.

Comparative judicial experience shows that the decision of a superior Court is not to be perceived as having been arrived at per incuriam, merely because it is thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam is a strict one – the relevant decision having not considered some specific applicable instrument, rule or authority.

Subject to that broad principle, certain directions may, on this occasion, be laid down:

(i) where there are conflicting past decisions of the Court, it may opt to sustain and to apply one of them;

(ii) the Court may disregard a previous decision if it is shown that such decision was given per incuriam;

(iii) a previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion;

iv) the Court will not depart from its earlier decision on grounds of mere doubts as to its correctness.”

[23]

It is imperative to point out that the appellant did not make any submissions to demonstrate in what way the earlier decision of this Court was not founded in

law and was therefore made

per incuriam

. To us, the Judges aptly interpreted the

Universities Act

and the respective Charter that clearly drew a distinction between when a VC is being recruited in office for the first time, and a re-appointment after the expiry of five (5) years. According to the appellant, both recruitment and re-appointment should be subjected to an open and competitive process. The judgment we are being asked to declare per

incuriam

has no error, the fact that the appellant does not agree with it cannot justify such a finding. The appellant did not point out any errors either on the face of the judgment or any incorrect holding. We therefore dismiss that ground of appeal.

[24]

We understood the appellant to be saying that the

Universities Act

and their respective Charters should provide for a competitive and open process for re-appointment of VCs. It is for this reason the appellant adopted the two-pronged approach, by blaming the 1

st

respondent for not amending the law to harmonize it with the Constitution, and seeking that we find the values in the Constitution were being undermined by the

Universities Act

and the attendant policies and regulations. The real controversy we are invited to resolve is whether we should declare

section 39

Universities Act

unconstitutional for not providing a competitive process for the re-appointment of the VCs to the Public Universities.

The appellant stated that she wrote a letter to the 1

st

respondent requesting him to move the necessary amendment to the law. The question we have asked ourselves is whether this is a technical legal question for the court to determine on whether

to order the Legislature to amend the law, or declare the said law unconstitutional, or leave the issue for the Legislature. We also need to remind ourselves of the timeless doctrine of separation of powers as aptly stated

In

Marbury -vs-Madison– 5 US. 137

that:

“The province of the court is solely, to decide on the rights of individuals and not to enquire how the executive or executive officers perform duties in which they have discretion.”

Also, in the words of Chief Justice Marshall of the U.S.A, in

Cohens vs.

Virginia19 US (6 Wheat.) 264 (1821):

“

It is most true that this Court will not take jurisdiction if it

should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty”.

[25]

It is common ground that when the 7th to the 10

th

respondents were first appointed as VCs they were taken through a competitive recruitment process. There is also no challenge that they were all eligible to re-apply and that the respective

University Charters

and the

Mwongozo

policy which is a code of governance for State Corporations enacted in 2015 to engender the principles of good governance and national values provides under

Article 1.12 (6)

that re-appointment of a Chief Executive Officer (CEO) for a subsequent term shall be based on a favourable evaluation as spelt out in the evaluation tool. The 7

th

to the 10

th

respondent provided detailed information in their responses that their contracts provided a renewal clause; that they were required to apply for re-appointment 6 months before the expiry of the contract which they did, and each was taken through a rigorous process of evaluation before they were finally re-

appointed in office. In this regard, we are of the view that if it was the intention of the of the Legislature to provide under the

Universities Act

for a competitive process of re- appointment of VC’s the law should have expressly provided for that.

[26]

Similarly, on whether the

Universities Act

is a violation of the Constitution, we think this is perhaps a question best left for the Legislature with its majoritarian decision-making voice to discuss and determine whether to amend the Universities Act to include competition in re-appointment of VC’s. In the same vein, we decline the invitation to declare the policy known as

Mwongozo

a code of governance for State Corporations unconstitutional as we cannot fathom how its provisions aided the violation of the Constitution. To begin with the appointment of the 7

th

to 10

th

respondents was done competitively when they were first appointed to serve for a contract term of five (5) years. Having satisfied the criterion under the Constitution when they were appointed in office, we agree with the submissions by counsel that the blood of constitutionalism to which a candidate was subjected to in the initial appointment, was still running through them in the re-appointment. They served for five (5) years and they were eligible for re-appointment, and just as this Court held in

Civil Appeal No 120 of 2014

,

the 7

th

to 10

th

respondents were not being recruited afresh. If they were strangers who were re-appointed without competition, that would have implied abuse of process that violated the Constitution and called for intervention by this Court, which was not the case here.

[27]

We think we have said enough to demonstrate that the issue of re-appointment of VCs to public universities was determined by this Court as aforesaid, the appellant is litigating on the same issues although she changed the prayers to

‘declarations’

the substratum of the matter remains the same and fits the description of what constitutes res

judicata. As

aptly discussed by this Court in

Uhuru Highway Development Limited vs. Central Bank of Kenya & 2

Others

[1996] eKLR

that for the doctrine of

res judicata

to apply the following conditions must be fulfilled:

“

(i.) [There must be] a previous suit in which the matter was in

issue;

(ii.) the parties were the same or litigating under the same title.

(iii.) a competent Court heard the matter in issue;

(iii.) the issue has been raised once again in a fresh suit.”

The same issues were for determination in the earlier suit that is whether the

Universities Act

violated the values in the Constitution. The Court having ruled on this issue in the earlier suit, which were also against a public university and about the appointment of a VC we find this matter was fully determined by the aforesaid judgment of this Court.

[28]

In the result, we find the appeal lacking in merit and dismiss it entirely with costs to the respondents.

Dated and Delivered at Nairobi this 20

th

day of November, 2020.

M. K. KOOME

....................................

JUDGE OF APPEAL

D. K. MUSINGA

....................................

JUDGE OF APPEAL

A. K. MURGOR

......................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR