Here’s what court said about plum position at JOOUST

In this follow-up article, The Scholar Media Africa brings you an exclusive tale of intrigues in the halls of Kenya's academia

We are back at Jaramogi Oginga Odinga University of Science and Technology (JOOUST) which has been in the news in recent months following a stalemate on who should take the plum position of Deputy Vice Chancellor (DVC) Administration and Planning.

And we can exclusively reveal that Prof Aggrey Thuo’s path to occupy the seat recently received a welcome boost following a labour court ruling restraining the university council from formalizing the appointment of Prof Francis Angawa.
In the stay orders dated June 30, 2021, Justice Stephen Radido of the Employment and Labour Relations Court granted the request by a petition that had sought to block Prof Angawa from assuming the DVC position.
The orders will provide temporary relief to the academic pending a court hearing on October 6.

This is the day the court is expected to issue a judgement date on the issues raised in the petition as well as related affidavits by the parties involved in the legal tussle.
This development comes on the back of a furious legal battle that pitted Mr Nichola Ouma, Mr Anthony Otiende and Prof Thuo against a formidable lineup.

The line-up included Education CS Prof George Magoha, the Public Service Commission (PSC), the university council, council chair Prof Isaiah Wakindiki, and Prof Thuo’s competitor at the interview, Prof Angawa.
Undeterred by the setback caused by the appointment of Prof Angawa as DVC Finance, Administration and Finance, Mr Nicholas Ouma, a concerned citizen filed a suit in the Industrial and Labour Court in Kisumu.
In the Petition Number E036 dated May 20, 2021, Mr Ouma sought to challenge the constitutional and legal validity of the JOOUST council decision, which had overruled the competitive process results.
The petitioner alleged that the decision had violated Prof Thuo’s rights under at least fifteen sections of the constitution.
Mr Ouma cited Articles 2(1) and (4), 3, 10, 19(10 and (2), 20(1), 22(2), 27(11), 28,35,47(1)48, 73(2), and 259 as parts of the law that had been broken in the controversial announcement.
In his petition, he also cited Articles 1,2,3 4(2),10,19,20,21,22,24,27,41, 73, 75, 129, 153(4)(a), 229(1), 232, 249(1,2,3,4) and 259(1) as having been violated, in addition to the violation of Part 5 of the 2012 Universities Act as read with the 2014 Statute Law Act Number 18.
Mr Ouma further sought for the enforcement of the academic’s rights and fundamental freedoms under Chapter 4, Articles 22 and 23(1) and (3), Article 162,(2)(a), and 232 of the constitution.
The petitioner named the Education CS, the Attorney General, PSC, the university council, university councils chair Prof Wakindiki as respondents.
Prof Thuo, Prof Francis Okere and Prof Otiende were named as interested parties.
In the landmark orders dated June 30, 2021, Justice Stephen Radido found that Prof Thuo had indeed topped the recruitment process and been confirmed as the recommended candidate.
“The PSC advertised for the position of Deputy Vice Chancellor, Planning, Administration and Finance for JOOUST, and conducted interviews. In the interviews, Prof Aggrey Thuo emerged tops and the university council met on March 2021 and resolved to recommend to the Education CS to appoint him to the position,” the court found.
“The chair of the council informed the CS of the resolution through a letter dated March 2021,” said the ruling.
Prof Wakindiki, the court noted, had still acted outside the law when he referred to Section 35(1)(a)(v) of the 2012 University Act in his decision to appoint Prof Okere to the position in a letter dated April 2021.
“The council chair through a letter dated April 12, 2021 purporting to act according to Section 35(1)(a)(v), appointed Prof Francis Angawa as the DVC, Planning, Administration and Finance.”
Prior to the ruling, a flurry of affidavits sworn by the warring parties filled up the case file as each side sought to dig in and defend its position.
Prof Angawa filed a replying affidavit to the motion submitted by Mr Ouma on June 4, 2021. 

JOOUST’s university council also filed an appeal to oppose the motion on June 10, 2021.
The University Education PS also swore an affidavit on June 7, 2021, to which the CS and the AG responded by filing a replying affidavit.
Mr Ouma argued for the setting aside of Prof Angawa’s appointment, and was supported by Prof Thuo, who was the petition’s first interested party, while the six respondents supported by Prof Angawa opposed the application.   
The court dismissed assertions by the respondents in the affidavit sworn by Principal Secretary Amb Simon Nabukwesi that the CS consulted with the university council and council chair.
“Evidence or records of such consultation were not filed in court,” the ruling stated.
The judge expressed puzzlement with the appointment of Prof Angawa under the orders of the CS, which was an action without any justification provided.
Judges went further to give their interpretation of the constitution regarding the appointment process, stating that the authority to appoint the DVC lies with the council and not the CS.
“In the view of the court, a reading of text grants the appointment power to the council and not the CS,” the court ruled.
Judges declined to issue orders overturning the appointment, noting that it had already been made.
The bench also noted that the application was an almost exact replica of another suit filed by Anthony Otiende against the PSC in Nairobi on April 21, 2021.
“The court is satisfied that the petitioner has made a prima facie case for the granting of interim orders barring the appointment but there were suggestions that he knew of a similar petition filed in Nairobi,” the judges wrote.
In court proceedings, prima facie, which means “at first sight” in Latin, is a legal claim having enough evidence to proceed to trial or judgment.  

Although Justice Radido agreed with the evidence and merit of Mr Ouma’s petition, he did not however overlook his apparent omission of the knowledge that a similar petition had been filed in Nairobi.
Justice Radido referred to the respondents’ objection to the petition based on the fact that the Nairobi court had not ruled on the other petition.
“Despite denials by the petitioner, there are hints in the word by word replication of the petition that he was aware of similar proceedings in Nairobi. The court must strike a balance between upholding the law and the need for candid disclosure by the petitioner,” the judge wrote.
The court ordered a stay in the university council decision to appoint Prof Angawa and also consolidated the Kisumu and Nairobi petitions.

What this means is that the ruling made by the court will apply for both petitions.
The matter will be mentioned on October 6, 2021 to confirm the parties’ compliance with the court orders and also issue a judgement date.

PART ONE EXCLUSIVE: Dirty wars soil search for DVC at JOOUST
Meanwhile, the judge ordered the petitioners to file their submissions and respondents to file their affidavits before August 30, 2021.
He also ordered the respondents and interested parties to file their submissions before September 30, 2021.   
On being asked about the details of the case and the controversy around the recruitment, PS Amb Nabukhwesi admitted having knowledge of the matter but steered clear of commenting about it.
“Yes I am aware of the matter but cannot comment about it since it is still in court,” said the PS.
Repeated calls and text messages to CS Prof Magoha for a response over the issues raised in the court ruling have since gone unanswered.
It remains to be seen whether the CS, the PSC, the education ministry or the university council will adhere to the rule of law and overturn the appointment, or challenge the court decision by way of an appeal.

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