Employment and Labour Relations Court cannot determine or oversee recruitment of individuals to any employment position

Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4others

Civil Appeal No 3 and 11 of 2016

Court of Appeal at Nairobi

                                                                                                       P.M Mwilu, J. Mohammed, J. Otieno-Odek JJA

April 5, 2016

Reported by Kipkemoi Sang & Nowamani Sandrah

Brief facts

The Appellants filed Civil Applications Nos. 310 and 312 of 2015 seeking orders for stay of execution of the Ruling and orders of the trial court dated December 18, 2015 pending the hearing and determination of the intended appeals. The Application sought that the leave of the 1^st Respondent be terminated and the university council to appoint a new Vice Chancellor. The term of the 1^st Respondent as Vice Chancellor of Kenyatta University had come to an end since she had served for two terms and as such, was not eligible for reappointment; The Petition cited the 2^nd appellant and the 2^nd, 3^rd, and 4^th Respondents as respondents and the 1^st Appellant and the 5^th Respondent as Interested Parties.  While the Petition was pending for hearing before the trial court, the 2^nd Appellant placed a Press advertisement Newspapers titled “Declaration of Vacancy for the Position of Vice Chancellor”. In addition, the 1^st Respondent filed a Notice of Preliminary Objection as well as interlocutory applications in each of the appeals seeking orders to strike out the Notices of Appeal and to strike out the interlocutory applications filed by each of the Appellants.

Issues

1. Whether the ruling of the trial court had passed the persuasive threshold and criteria for grant of final orders at the interlocutory stage
2. Whether the Employment and Labour Relations Court was charged with constitutional or statutory mandate to determine and oversee recruitment of individuals to any employment position
3. What law and or procedure informed the appointment of an individual as Vice Chancellor of Kenyatta University?
4. What was the rationale or effect of an order issued by the Court imposing timelines for compliance?

Employment Law-Employment and Labour Relations- constitutional and or statutory mandate of the Court- whether the Employment and Labour Relations Court was charged with constitutional or statutory mandate to determine and oversee recruitment of individuals to any employment position

Civil Practice and Procedure-interlocutory orders-criteria for grant of final orders at interlocutory stage- timelines for compliance of orders-whether the ruling of the trial court had passed the persuasive threshold and criteria for grant of final orders at the interlocutory stage- what was the rationale or effect of an order issued by the Court imposing timelines for compliance

Held

1. The Court ought not grant interim relief which amounted to final relief and in exceptional circumstances where the Court was satisfied that ultimately the Petitioner was bound to succeed and fact-situation warranted granting such a relief, the Court could grant the relief but it must record reasons for passing such an order and make it clear as what were the special circumstances for which such a relief was being granted to a party. In the instant case the ruling of December 18, 2015 did not pass the persuasive threshold and criteria for grant of final orders at the interlocutory stage
2. Where relief was prayed for in the alternative, a court of law had to choose whether to grant the main or alternative relief and state the reasons for doing so. Both could not be granted in blanket form.  The Court could not grant both the main and alternative prayers in the Motion.
3. Courts should not deal with matters which statute had directed should be done by another party. If Statute had provided for the procedure to do a certain act, that procedure ought to be followed.
4. The Employment and Labour Relations Court was not the Human Resource Department of any organization; the court was not charged with constitutional or statutory mandate to determine and oversee recruitment of individuals to any employment position. The order by the trial court directing the 2^nd Appellant to convene a meeting with stakeholders of Kenyatta University and chart the way forward was an order made in excess of jurisdiction of the trial court. 
5. The procedure and process for recruitment and recommendation of the individual to be appointed as Vice Chancellor of Kenyatta University was regulated by the Universities Act and the Charter of Kenyatta University. Stakeholder consultation was a procedure not provided for in the relevant Act and Charter.   The trial court could not impose its own procedure for recruitment of the Vice Chancellor doing so would be formulating its own and new procedure for recruitment of the Vice Chancellor of Kenyatta University.
6. Courts in their common practice could impose timelines for doing certain acts. In principle, court orders took effect upon delivery of judgment and or rulings; the effect of an order indicating timelines was to postpone immediate implementation of the ruling or orders made. In the instant case, the orders and directions made by the trial court were specific and succinctly indicated what needed to be done.
7. If the Court was to hold that the 1^st Respondent had no locus, the legal consequence would be to terminate proceedings before the trial court and arrest the judgment now pending for delivery on April 6, 2015. Conversely, if the Court were to hold that the 1^st Respondent had locus, the decision of the Court would likewise impact on the proceedings and judgment on the Petition that was before the trial court. 
8. All interlocutory orders lapsed upon delivery of judgment after the full and final determination of a suit. In the instant matter, upon delivery of judgment in the substantive Petition, the interlocutory orders made on December 18, 2015 ought to automatically lapse. The effective orders in the instant matter and Petition ought to be as per the decree and orders made in the final judgment delivered by the trial court.

Appeals allowed. Ruling and orders made by the trial court set aside. Each party to bear their own costs.

Cases

East Africa;

1. Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihin Civil Appeal No 297 of 2014 – (Explained)
2. Commissioner of Lands v Kunste Hotel Limited Civil Application No 234 of 1995 – (Mentioned)
3. Detho, Rose v Ratilal Autombiles & 6 others Civil Application No 304 of 2006 – (Mentioned)
4. Judicial Service Commission v Gladys Boss Shollei Civil Appeal No 50 of 2014 – (Mentioned)
5. Leiyegu, Richard Nchapi v Independent Electoral and Boundaries Commission & 2 others Civil Appeal No 18 of 2013 – (Mentioned)
6. Mbeeria, Joseph Mutuura & another v Cabinet Secretary for Education Science and Technolgy & 2 others Petition No 33 of 2013 – (Explained)
7. Mugendi, Daniel N v Kenyatta University & others Civil Appeal No 6 of 2012 – (Mentioned)
8. Narok County Council v Transmara County Council (2000) 1 EA 161 – (Mentioned)
9. National Bank of Kenya v Pipeplastic Sankolit (K) Ltd & another Civil Appeal No 95 of 1999 – (Mentioned)
10. Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola Civil Case No 252 of 2008 – (Mentioned)
11. Teachers Service Commission v Kenya National Union of Teachers & 3 others Civil Appeal No 196 of 2015 – (Mentioned)
12. Tetra Radio Limited v Communications of Kenya Civil Application No 121 of 2012 – (Explained)
13. United States International University (USIU) v Attorney General Petition No 170 of 2012 – (Explained)
14. Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others Civil Appeal No 21 of 2014 – (Followed)
15. West Kenya Sugar Co Ltd v Kenya Sugar Board & another Civil Application No 298 of 2010 – (Mentioned)

India

1. Anna Dravida Munmnetra Kazhagam v LK Tripathi & others, Contempt Petition (C) No262 of 2007 IN SLP (C) No 18879 of 2007 – (Explained)
2. Ashok Kumar Bajpai  v Dr (Smt) Ranjama Baipai, AIR 2004, All 107, 2004 (1) AWC 88 – (Explained)
3. Deoraj v State of Maharashitra & others, Civil Appeal No 2084 of 2004 – (Explained)

United Kingdom

1. Macfoy v United Africa Co Ltd (1961) 3 All ER 1169 – (Explained)

USA

1. Ball v United States, 140 US 118 (1891– (Mentioned)
2. McDowell v United States, 159 US 595 (1895 – (Mentioned)
3. Norton v Shelby County, 18 US 425,4400 – (Mentioned)

Statutes

East Africa;

1. Constitution of Kenya, 2010 articles 3(1); 10, 27, 22(1); 50; 258(1) – (Interpreted)
2. Court of Appeal (Organization and Administration) Act No 28 of 2015 section 28 – (Interpreted)
3. Court of Appeal Rules (cap 9 Sub Leg) rule 84 – (Interpreted)
4. High Court (Organization and Administration) Act No 27 of 2015 sections 35,36 – (Interpreted)
5. Industrial Court Act, 2011 (cap 234B)) section 12– (Interpreted)
6. Judicature Act (cap 8) section 5 – (Interpreted)
7. State Corporations Act (cap 446) In general 
8. Statutory Instruments Act, 2013 (Act No 23 of 2013) sections 2, 27(1)(c) – (Interpreted)
9. Supreme Court Act (cap 9A) In general 
10. Universities Act, 2012 (cap 210B) sections 35, 39(1)(a) – (Interpreted)

Advocates:

1. Mr Njoroge Regeru for the 1st Appellant
2. Messrs Kiragu Kimani and Mr Kibe Muigai for the 2^nd Appellant
3. Mr Kepha Onyiso for the 2^nd, 3^rd & 4^th Respondents
4. Mr Enonda for the 5th Respondent