The employment and labor relations court has quashed the appointment of Prof Francis Angawa Okere as the DVC Finance, Administration and Planning at the Jaramogi Oginga Odinga University of Science and Technology (JOOUST).
In a ruling dated January 26, 2022, Justice Stephen Radido declared the appointment made by Education CS Prof George Magoha as “unconstitutional, null and void”.
“An order is hereby issued invalidating the appointment of Prof Francis Angawa Okere as the DVC, Planning, Administration and Finance of JOOUST,” reads the ruling.
In a sharp rebuke to the CS, the court overturned his decision to appoint Prof Okere in despite an earlier decision by the university council to recommend the appointment of Prof Aggrey Maina Thuo.
The ruling has effectively sent the CS back to the drawing board as he seeks to legally cement the appointment of Prof Okere, which is being viewed as political in some quarters.
The court decision follows two lawsuits against the appointment separately filed by Nicholas Ouma and Anthony Otiende.
In an earlier decision, the labor court had combined the suits by Mr Ouma and Otiende before issuing a ruling on the matters raised.
The decision marks a significant turning point in the battle to clarify the legality of the decision by the CS to deny Prof Thuo the opportunity to serve as the DVC at JOOUST.
Prof Thuo’s academic star was set to rise with the appointment, having taken part and excelled in the February 2021 interviews held for the position that was advertised as vacant in January 2021.
In a series of interviews held by the Public Service Commission (PSC) to fill the vacancy, Prof Thuo emerged top.
The PSC communicated its results to the university council on March 3, 2021.
The university council then agreed to recommend Prof Thuo to the position, following his impressive performance during the interviews.
Acting on behalf of the council, Prof Isaiah Wakindiki wrote a letter dated March 26, 2021 to the CS, recommending the appointment of Prof Thuo.
The academic made a U-turn later and issued an appointment letter dated April 12, 2021 to Prof Okere, who was ranked third in the interviews.
Prof Okere accepted the letter on April 15, 2021.
Through his lawyer Mr Muga, Prof Wakindiki told the court the decision was made after consultations with the CS.
In a shocking turn of events, Prof Magoha appointed Prof Okere as DVC despite the recommendation of the PSC recruitment board, the university council and PS for University Education and Research, Amb. Simon Nabukwesi to appoint Prof Thuo.
Aggrieved by the CS’s decision, Mr Ouma and Mr Otiende went to court to have it set aside.
Other respondents listed in the suit include the Attorney General, the Public Service Commission (PSC), the JOOUST Council and Prof Wakindiki, who chaired the council at the time.
The petitioners faulted the council for failing to convene a fresh meeting to reconsider the recommendation it had earlier made for Prof Thuo’s appointment.
The two alleged the appointment of Prof Okere was a case of cronyism or nepotism, made outside the legal process, adding that there was no evidence that the council had recommended his appointment.
Prof Thuo argued through his lawyer Ms Mwangi that the power to appoint him lay with the council, and that the reversal of his appointment was a breach of the constitution, adding that the CS and the council had overlooked “the requirements of transparency, accountability, merit and equal opportunity for appointments to public office”.
He further reminded the court that a representative of the CS was present during the meeting that resolved to hand him the appointment.
Prof Thuo’s lawyer told the court he had a legitimate expectation of taking up his duties since the council had written to the CS.
She argued that the circumstances behind the revocation of his appointment were not transparent.
Through his lawyer Mr Oluoch, Prof Okere argued that the council was not the ultimate appointing authority, saying he legitimately deserved a chance as one of the three final candidates cleared by the PSC.
In his replying affidavit, Prof Magoha sought to justify his decision to appoint Prof Okere as having been anchored on solid administrative principles.
Through Mr Cheruiyot, the lawyer representing the AG’s office and the education ministry, Prof Magoha said his decision was sound due to the fact that his appointee was one of the three finalists presented by the PSC.
Prof Magoha justified his decision as having been driven by “the need to reflect the face of Kenya and achieve regional balance”.
He also said the decision had been reached after consultations with the council.
His assertions were echoed by Prof Wakindiki, who also argued that “the council was not obligated to appoint Prof Thuo to the position” despite his excellent performance at the interviews.
He added that any of the three finalists could legitimately be appointed to the position, citing Article 232 of the constitution as stating other options that could be considered for appointment to such a position.
In their suit, the plaintiffs represented by Mr Nyaanga of Mtalaki and Oduor Okello law firms argued that the CS had breached the law by appointing Prof Okere, who came third in the PSC interviews.
In the ruling, the court found the CS had erred by overruling the council recommendations.
“It is the court’s view, therefore and following upon the council’s resolutions, that any consultations with the CS were to revolve around the appointment of Prof Thuo and not the other two candidates,” said Justice Radido.
The judge faulted Prof Magoha and council chair Prof Wakindiki for failing to provide evidence of their meeting which reversed Prof Thuo’s appointment.
“In regard to the decision to substitute Prof Thuo with Prof Okere, the council and CS did not provide any evidence that any formal consultations were held with the council as a collective.
Equally, there was no evidence that consultations were held between the CS and the council chair,” said Justice Radido.
He also pointed out that the council was mistaken by failing to hold a fresh meeting to ratify the CS’s decision to appoint Prof Okere.
“Since the decision ultimately lies with the council, it ought to have met again to approve of any consultations between its chair and the CS.
The council did not place any records before the court to demonstrate that it gave its approval to Prof Okere’s appointment,” said the judge.
He added that the court was convinced of the illegality of the decision by the Education CS.
