The High Court in Nairobi has dismissed an application by the University Academic Staff Union (UASU) to have the appointment of the University of Nairobi Council set aside.
In his judgment, Justice Jairus Ngaah ruled that even though UASU's argument that the exercise was beyond the powers given to the Education Cabinet Secretary was on point, the prayers sought could not be granted.
The court faulted the Union for filing its case late when the council had already begun its work, adding that it would also affect the running of the institution.
"I would exercise my discretion against granting the judicial review orders sought. Accordingly, I would dismiss the applicant's application. Considering that I have held that the 1st respondent (CS) acted ultra vires (beyond the powers) the Universities Act and the application would have succeeded were it not for the tardiness of the applicant and the consequences that would ensue as a result of granting the reliefs based on a belated application," he ruled.
CS Ezekiel Machogu made the appointment of the council under the leadership of Professor Amukowa Anangwe shortly after revoking the previous council led by Professor Miriam Were.
UASU argued that in disbanding Were's team, Machogu acted beyond his powers by purporting to invoke section 36 (1) of the Universities Act, No. 42 of 2012.
This, the union said, was in disbanding the previous council and reconstituting a new one, yet the aforementioned provision of the law does not allow him to act as he did.
Opposing the prayers sought, the CS through an affidavit sworn by Principal Secretary State Department for Higher Education and Research Ministry Of Education Beatrice Inyangala said Section 36(1) of the Universities Act gives him powers to appoint chairpersons and members of the councils of public universities.
She told the court that the appointment of the council was in accordance with the said Act.
Acknowledging that the CS had revoked Were's appointment, Inyangala cited Section 51 (2) of the Interpretations and General Provisions Act, stating that it provided the power to appoint and revoke appointments.
She maintained that Machogu had acted within the law when he reconstituted the university's council, saying it was to strengthen governance in the institution.
Inyangala told the court that granting the orders sought would have far-reaching consequences since the University would not have an operational council to provide oversight and strategic direction in academic programs.
She also argued that issuing orders would disrupt the university's smooth operations.
In response, UASU said the CS could not rely on Section 51 of the Interpretations and General Provision's Act because the same is subject to contrary intention.
It said the contrary intention is that there exist provisions governing the removal of a council member in the University of Nairobi Charter and the State Corporations Act.
Were, who co-joined in the suit as an interested party, rejected the application.
In his verdict, Justice Ngaah noted that Section 36 (1) of the Universities Act did not give the CS powers extending to revocation of appointment (s) already made.
On the argument on Section 51 of the Interpretation and General Provisions Act, the Judge was not persuaded that the CS "would have such drastic powers without express provisions to that effect".
"When the Cabinet Secretary went beyond the scope of his powers as donated by section 36 of the Universities Act, it cannot be said with any sense of conviction that he understood correctly the law that regulates his decision-making power; neither can it be said that he gave effect to it," he stated.
In conclusion, however, he could not issue the orders sought citing UASU's tardiness.
He pointed out that had the application been filed earlier, it would have succeeded.
"The applicant is bound to bear the consequences of its conduct in delaying the institution of this suit. As far as this Honourable Court is concerned, the delay has a lot to do with the court’s exercise of its discretion against the grant of the judicial review reliefs which the applicant seeks in its application," Ngaah ruled.