REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CONSTITUTIONAL PETITION NO. E264 OF 2025
IN THE MATTER OF CHAPTER 6 OF THE CONSTITUTION
AND
IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 41 OF THE CONSTITUTION
AND
IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 47 OF THE CONSTITUTION
AND
MWONGOZO – CODE OF GOVERNANCE FOR STATE CORPORATIONS (2015)
BETWEEN
MICHAEL MWANGI GACHARA ………….……………………. PETITIONER
AND
KENYATTA UNIVERSITY ………………………..…………….. RESPONDENT
JUDGMENT
1. The gist of the Amended Petition is that the Petitioner is an employee by the Respondent as a Senior Lecturer. That the Kenyatta University Statute establishes offices of Directors appointed by the Vice Chancellor on behalf of the University Council, for a renewable 3 years term. He avers that his appointments to directorships keep being revoked whimsically, despite that he has not completed any 3-year term. That consequent to his position as a lecturer, he was appointed as a Director Endowment and Alumni Programmes for a 2-year term commencing on the 1/08/2024, as an additional responsibility.
2. That by revoking the said appointment without any justifiable cause, the Respondent has acted in a whimsical manner in breach of the Petitioner’s right to fair administrative action. That similarly, his appointment as a board member Confucius Institute Board and Director Centre for Teacher Professional Development and Excellence was similarly revoked without reasons or legal justification. That the revocation does not pass muster of legitimacy since it denies the Petitioner an opportunity of being heard on any allegations resulting in the revocation. That the Respondent’s actions are a display of poor corporate governance and abuse of instruments of governance including Statute XXII, which set out the grounds of revocation of the appointment of a director limited to gross misconduct, incompetence and any other good reason.
3. That in order to determine whether the Petitioner is guilty of gross misconduct, incompetence or any other good reason of revoking his appointment, he is entitled to be heard. That the Vice Chancellor has no authority to act on behalf of the University Council where the Council is improperly constituted following the resignation of a chair, and until the Cabinet Secretary appoints another Chair in accordance with the Universities Act. The Petitioner seeks the following;
i. The Honourable court do issue conservatory orders staying the revocation of the Petitioner appointment as Director Endowment and Alumni Programmes until lawfully removed on grounds listed in Statute XXII of Kenyatta University.
ii. The Honourable court does declare that the revocation of the Petitioners Appointment as a Director Endowment and Alumni Programmes prior to effluxion of his contract is unlawful.
iii. The letter dated 11/12/2025 be removed into this court and quashed for violating the Petitioners right to fair administrative action.
iv. The Honourable court does order that the Petitioner be compensated for loss of his emoluments following the revocation of his appointment as Board member Kenyatta University Confucius Institute Board, Director Centre for Teacher Professional Development and Excellence and Director Endowment and Alumni Programmes.
v. The Honourable court does order that the Petitioner be awarded general damages for violation of his right to fair administrative action following the revocation of his appointments as Board member Kenyatta University Confucius Institute Board, Director Centre for Teacher Professional Development and Excellence and Director Endowment and Alumni Programmes.
vi. The Honourable Court does declare that the Respondent is obliged to apply the Mwongozo Code of Governance, 2015 in its decision-making processes.
vii. The Respondent be condemned to pay Costs of suit together with interest.
viii. Any other relief that the court may find just to grant
4. The Respondent opposed the Petition vide its Replying Affidavit sworn on 22 nd December 2025 by Prof. Paul Kuria Wainaina, its Vice-Chancellor. He deposed that the Petition was sub judice Nairobi ELRC Petition No. E253 of 2025; Elizabeth Chesang & Another; Michael Mwangi Gachara, intended Petitioner v Prof. Paul Kuria Wainaina & 4 others, which is pending determination. That the Petition undermines the orderly administration of justice and offends the principles of judicial economy, finality and consistency. He stated that he is authorized by the University’s Statutes under Statute VII(9) to re-appoint, re-designate, or re-assign officers, in consultation with the University Council, where circumstances so require, in the University’s best interests. In denying the Petitioner’s reliance on Statute XXII, that provides for revocation of directorship, the affiant stated that the Petitioner’s re-assignment was in exercise of the mandate to ensure institutional efficiency, continuity and effective deployment of human resources.
5. He deposed that in the Petition No. E253 of 2025, where the Petitioner is the intended 3 rd Petitioner, seeks an order that conservatory orders do issue staying the revocation of the Petitioners appointment as Director, Endowment and Alumni Programmes pending the hearing and determination of the Application and the Petition; which is identical to prayer (b) sought herein. He contended that the Petitioner has invoked this Court’s jurisdiction twice seeking substantially similar reliefs arising from same facts against the Respondent. He added that Section 6 of the Civil Procedure Act prevents this Court from hearing when a matter is directly or substantially in issue in a previous suit pending before a competent court. He stated that the instant suit ought to be stayed pending the determination of the mentioned suit.
6. He stated that he was aware that the Cabinet Secretary appointed another chairperson on 19 th December 2025. He stated that Statute VII(7) of the Statutes vested authority on him to appoint, inter alia , heads of units and directors of centres. It was averred that the orders sought invite the Court to substitute its judgement for that of the University’s lawful organs in matters of internal administration. He therefore termed the Petition as baseless, speculative and calculated to vex the Respondent. He prayed that the same be dismissed with costs.
7. In a Further Affidavit sworn by Prof John Okumu on 16 th July 2026, in response to the raised claim that the Petitioner had lost emoluments of Kshs. 58,100.00, per month, he stated that by dint of the orders of this Court of 23 rd December 2025 retaining the status quo and that of 7 th January 2026 preventing the filling of the position, the Petitioner remained in office and continued earning his full allowances. He added that the Petitioner’s fixed term contract of two years was lapsing on 31 st July 2026. He contended that the Petitioner had not suffered any financial loss and therefore not entitled to compensation. He added that unlike the position of director, the Petitioner has not adduced evidence of membership of the Kenyatta University Confucius Institute Board and the directorship of the Centre for Teacher Professional Development and Programmes. He added that the petitioner also failed to seek interim orders to preserve his purported appointments to these positions. He deposed that loss of allowance is a special damage which must be specifically pleaded and proved, and which the Petitioner had failed to so do.
Submissions
8. The Petitioner’s counsel’s submissions raised the following issues for determination: (i) Whether the sudden revocation of the Petitioner’s directorship appointments violated the Right to Fair Administrative Action under Article 47 of the Constitution and the Fair Administrative Action Act (FAAA); (ii) Whether the Petitioner had a legitimate expectation to complete his fixed term additional appointment as Director of Endowment and Alumni Programmes; (iii) Whether the Respondent violated the Petitioner’s Right to fair labour practices under Article 41 of the Constitution by arbitrarily withdrawing contractual appointments and attached emoluments; (iv) Whether the Vice Chancellor had the legal authority to unilaterally revoke the appointments while the University Council was improperly constituted; (v) Whether the Petitioner is entitled to the reliefs sought, including conservatory orders, general damages, and compensation for lost emoluments.
9. On the first issue, it was submitted that the Respondent is a body corporate whose administrative decisions must pass the strict requirements of Article 47(1) of the Constitution. It was submitted that under Article 10, 73 and 232 the Constitution binds state organs, state officers, public officers and all persons when making its decisions. That the same requirements were reproduced in Chapter 8 of Mwongozo Code of Governance for State Corporations, 2015. It was submitted that Article 47(2) of the Constitution and Section 4(2) of the Fair Administrative Actions Act provide for the right to be given written reasons for an administrative action that has or is likely to adversely affect a right or fundamental freedom of the affected person. Reliance was placed on the decision in Saire & another v Cabinet Secretary for Lands and Planning & another [2024] KEELRC 894 (KLR) that cited the Court of Appeal decision in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR.
10. Counsel was added that the Kenyatta University Statute XXII strictly bound the University's hand by limiting the grounds for revoking a director’s appointment to gross misconduct, incompetence, or any other good reason. That the Kenyatta University Statute XXII (2) states that ‘The appointment of a Director may be revoked by the Vice chancellor on grounds of gross misconduct, incompetence, or for any other good reason .’ It was submitted that to determine whether any of these high thresholds had been met, the baseline requirement of the audi alteram partem rule (listen to the other side) must apply. It was argued that the Respondent failed to issue a show-cause letter, failed to present any allegations, and failed to grant the Petitioner an opportunity to respond before issuing the revocation letter dated 11/12/2025. Reliance was placed on the Court of Appeal decision in Narok County Government & another v Birir & another [2015] KECA 118 (KLR).
11. Reliance was further placed on Republic v Cabinet Secretary, Ministry of Education & another; Wamoto (Ex parte Applicant) [2024] KEELRC 106 (KLR) to counter the Respondent’s argument on service under pleasure doctrine. It was submitted that the Petitioner’s appointment as Director, Centre for Teacher Professional Development and Excellence was evidenced by exhibit MMG 3 at page 12. It was argued that the Petitioner’s Supplementary Affidavit showed how the revocations affected him financially and socially. It was submitted that the Petitioners pay slip for October 2022 and January 2023 shows how drastic the revocation of his appointment left him with a paltry Kshs. 1,540.00, from Kshs 168,498.00; showing how the lost emoluments occasioned difficulty in managing the school fees for his daughter which resulted in arrears as exhibited in MMG 8. It was submitted that the revocation letter complained of was an adverse decision affecting the Petitioner’s interests, reputation and earnings.
12. On the second issue it was submitted that the Petitioners Appointment letter provided for a fixed period of 2 years with effect from 1 st August 2024; thus, he had a legitimate expectation that it would run for the period. It was contended that his appointment to the board member Confucius Institute did not have a term limit, while that of the Director Centre for Teacher Professional Development Excellence had 5 months as per the appointment letter and a possible 2 more years as per University Statutes XXII(1), which provided for a 3 year term renewable making a total of 6 years. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, among other case laws which discussed the doctrine of legitimate expectation.
13. On the third issue, it was submitted that while the Petitioner remained a Senior Lecturer, the additional administrative roles were explicitly tied to his employment contract as additional responsibilities carrying specific financial packages. It was submitted that the arbitrary stripping of these roles directly resulted in a severe reduction of the Petitioner's monthly earnings and an immediate loss of contractual benefits. It was submitted further that Article 41(1) of the constitution guaranteed every worker the right to fair labour practices. That the loss of earnings, coupled with the public embarrassment and professional stigma associated with multiple unexplained revocations, has caused the Petitioner immense mental anguish and anxiety.
14. On the fourth issue, it was submitted that the Vice Chancellor’s power was derivative, meaning that he acted as an agent of the Council. It was submitted that it was a settled principle of corporate governance and administrative law that an agent cannot act for a principal that is legally comatose or improperly constituted. It was argued that the same was consistent with the principles of the Mwongozo Code of Governance for State Corporations (2015) and Article 232 of the Constitution, which dictate strict adherence to transparency, institutional accountability, and rule-based governance. Reliance was placed on University of Nairobi & 2 others v Universities Academic Staff Union (UASU) & 4 others (Civil Appeal (Application) E771 of 2021) to submit that the Court of Appeal re-emphasized that the leadership of public universities must strictly respect the statutory separation of powers between the Vice Chancellor’s office and the Governing Council. It was argued that any action taken in the absence of a properly constituted Council is an ultra vires abuse of power.
15. On the fifth issue, it was submitted that with proof that the Respondent violated the Petitioner’s rights to fair administrative action the next question is whether the Petitioner is entitled to compensation for quantifiable emoluments lost, and general damages where the Court finds a statutory or constitutional wrong. Reliance was placed on the decisions in Kibuange v County Government of Mombasa [2023] KEELC 17311 (KLR) and Miriti v Governor, Meru County & another [2024] KEELRC 2564 (KLR) where the court granted damages amounting to Kshs. 3,000,000/- for a violation of the Petitioners rights under Article 47 of the Constitution. Reliance was also placed on the case of Mundia Njeru Gateria v Embu County Government & 5 others [2015] KEELRC 249 (KLR) where the court granted Kshs. 5,000,000/- for the violation of the petitioner’s fundamental rights and freedoms. The Court was therefore urged to award general damages of Kshs. 7,000,000/-. On cost, it was submitted that they should follow the event.
16. The Respondent on the other hand raised the following issues: (i) Whether the revocation of the Petitioner’s additional appointment was a lawful exercise of the Vice-Chancellor’s mandate under the Kenyatta University Statutes; (ii) whether the Petitioner had proved any violation of Articles 41 and 47 of the Constitution, or any legitimate expectation; (iii) whether the Amended Petition raises any constitutional issue at all, or is merely an ordinary but unmerited employment dispute; and (iv) whether the Petitioner is entitled to the reliefs sought.
17. On the first issue, counsel reiterated the contents of the Affidavit adding that the Petitioner was neither dismissed, demoted nor subjected to any disciplinary process. It was submitted that where a revocation is not premised on misconduct or incompetence, there was no accusation to be answered. In submitting that the acts of public bodies are presumed to be regular, lawful and reasonable reliance was placed on the Supreme Court decision Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of OwinoUhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others [2024] KESC 75 (KLR) which held that: “… in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable” Additionally support was garnered from the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR) held that: “In law, there is a presumption of regularity. Under this presumption, a court presumes that official duties have been properly discharged and all procedures duly followed until the challenger presents clear evidence to the contrary.” It was argued that since no such evidence had been tendered; the presumption stood unrebutted.
18. On the second issue, it was submitted that no violation of Articles 41 and 47 has been proved and no legitimate expectation arose citing Otieno v Airtel Kenya Limited [2018] KEHC 9063 (KLR), Mativo J. (as he then was) held that: “It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum… The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon… unsupported hypotheses.”
19. It was submitted that measured against the above standard, the Amended Petition was barren. It was added that the Petitioner tendered no evidence of illegality, bad faith, ulterior motive or discrimination and nothing beyond the bare assertion that the decision was “whimsical”. In supporting that the Petitioner could not take refuge in legitimate expectation reliance was placed on Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR), the Supreme Court settled the governing elements for legitimate expectation. It was submitted that an expectation inconsistent with a public body’s governing instruments was incapable of being legitimate as legitimate expectation operates within the confines of the law, never against it. It was submitted that the invocation of the Mwongozo Code of Governance for State Corporations (2015) was misconceived on account that it was not a source of justiciable private rights, and could amend, repeal or override the express provisions of the University’s Statutes. It was added that the prayer for a declaration that the Respondent “is obliged to apply” the Code in its decision-making was therefore incapable of advancing the Petitioner’s cause.
20. On the third issue, it was submitted that the Amended Petition raised no constitutional issue and that it was an ordinary but unmerited employment claim in constitutional garb. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) among other cases on the principle of avoidance. It was added that the Amended Petition lacked precision as highlighted in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154, and in Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR).
21. On the fourth issue, it was submitted that the fundamental difficulty facing prayers (a), (b) and (bb) was that they had been overtaken by time. Counsel added that by the time this Court delivered judgment, there would be no subsisting term to stay, no office to which the Petitioner could be restored, and no continuing legal relationship upon which a declaration or such other order could operate. That the prayers (a), (b) and (bb) will become moot. Reliance was placed on the doctrine of mootness delineated by the Supreme Court in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR).
22. On compensation for loss of emoluments in relation to the Petitioner’s appointment as Director, Endowment and Alumni Programmes, it was reiterated that the Honourable Court granted an order of status quo on 23 rd December 2025, and a further order stopping the scheduled handover of the office on 7 th January 2026. That consequent to those two court orders, the Petitioner remained in office earning his full allowances and his fixed-term contract lapsed on 31 st July 2026. It was argued that the Petitioner had not suffered any loss, and was therefore not entitled to any compensation. Support was garnered from Hahn v Singh [1985] KLR 716 cited with approval in Wanjala v Githaiga [2026] KEHC 2672 (KLR) to submit that the loss of earning from the loss of membership to the Boards was had not proved.
23. It was further submitted that even if the Petitioner’s word was to be considered, his deposition in the Supplementary Affidavit is that his appointment as Director, Centre for Teacher Professional Development and Excellence was for a term of one (1) year commencing 25 th April 2022. That term expired by effluxion of time in or about April 2023, more than two and a half years before this Petition was filed. That the pay slips are dated October 2022 and January 2023 respectively; and on the face of it prove that the Petitioner was paid a director’s allowance while he actually served in those appointments more than three years ago.
24. It was added that the prayer for general damages is also unjustified and ought not to be granted. Reliance was placed on Kenya Broadcasting Corporation v Geoffrey Wakio [2019] KECA 65 (KLR) . It was argued that awarding general damages together with compensation sought at prayer (c) would sanction the very duplication which the Court of Appeal. On prayer (e), it was argued that this Honourable Court has no jurisdiction to grant and ought not to entertain. It was submitted that the Amended Petition is incompetent, unmerited and this Court ought to dismiss it with costs to the Respondent.
Analysis
25. The issues that for determination are: (i) Whether this Petition meets the threshold of Constitutional Petitions; (ii) Whether the Respondent is bound by the provisions of Mwongozo; (iii) Whether revocation of the Petitioner’s directorship amounts to unfair and unlawful infringement of his rights; (iv) whether the Petitioner is entitled to the reliefs sought.
26. On the first issue, the threshold is provided for under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 , (hereinafter the Mutunga Rules) which provides the structure and form to be taken by constitutional petitions.
It provides that:
(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g)the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
27. On the other hand, in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) the Court of Appeal observed that:
…
46.We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.
28. From the foregoing, coupled with the Respondents’ response to the Petition, the court finds that the petition is consistent with the Mutunga Rules.
29. On the second issue, the Petitioner’s argument is that the Respondent was bound by the Mwongozo, since it is a State Corporation. The Respondent on its part argued that it was not bound as it had the University Charter.
30. Section 2 of the State Corporations At defines a state corporation as follows:
"state corporation" means—
(a) a state corporation established under section 3 ;
(b) a body corporate established before or after the commencement of this Act by or under an Act of Parliament or other written law but not—
31. In Republic v Communications Authority of Kenya; Information Communication Technology Association of Kenya (ICTAK) (Ex parte) [2021] KEELRC 7 (KLR ) the court observed that:
31. Section 7 of the State Corporations Act gives power to the President to give directions of a general or specific nature with regard to the better exercise and performance of the functions of State Corporations. Section 30 of the Act gives power to the President to make Regulations for the better carrying into effect of the provisions of the Act.
32. Under these powers, The President promulgated Mwongozo,Code of Governance for State Corporations…
…
37. An advisory from SCAC and the respondent’s Human Resource Policy Manual cannot supersede the provisions of Mwongozo which has statutory underpinning. The averments by the Respondent about a policy of comply or explain is not anchored on any law or regulation and cannot supersede the explicit provisions of Mwongozo.
38. In the case of Resley v the City Council of Nairobi [2006] EA, the court held that: -“In this case there is an apparent disregard of statutory provisions by the respondent, which are of fundamental nature. The Parliament has conferred powers on public authorities in Kenya and has clearly laid a framework on how those powers are to be exercised and where that framework is clear, there is an obligation on the public authority to strictly comply with it to render its decision valid… The purpose of the court is to ensure that the decision making process is done fairly and justly to all parties and blatant breaches of statutory provisions cannot be termed as mere technicalities by the respondent.”
39. Further, in Githu Muigai & another v Law Society of Kenya & another, the court held that:-“In our view, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority...”
…
42. By altering the requirements for the position, the respondent also violated the provisions of article 10(2)(b) which provides for observance of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised. Persons who are qualified under Mwongozowere discriminated by the enhancement of the minimum requirements which locked them out. The Board further violated article 73 on the Guiding Principles of Leadership and the Leadership and Integrity Act .
32. In sum, the Respondent’s contention that it is only bound by the Charter and not the Mwongozo is unsustainable.
33. On the third issue, the appointment and revocation of directorship is provided for under Statute XXII (1&2) which state:
“1. Subject to the Charter and these statutes, there shall be a director of an institute, centre or unit who shall be appointed by the Vice- Chancellor on behalf of the University Council, from among members of staff at the rank of lecturer or equivalent and above for a period of three years and shall be eligible for re-appointment for a further period of three years.
2. The appointment of a director may be revoked by the vice-Chancellor on grounds of gross, misconduct, incompetence or for any other good reason.”
Notably, the Respondent acknowledged that there was no g
[...truncated]
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CONSTITUTIONAL PETITION NO. E264 OF 2025
IN THE MATTER OF CHAPTER 6 OF THE CONSTITUTION
AND
IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 41 OF THE CONSTITUTION
AND
IN THE MATTER OF IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 47 OF THE CONSTITUTION
AND
MWONGOZO – CODE OF GOVERNANCE FOR STATE CORPORATIONS (2015)
BETWEEN
MICHAEL MWANGI GACHARA ………….……………………. PETITIONER
AND
KENYATTA UNIVERSITY ………………………..…………….. RESPONDENT
JUDGMENT
1. The gist of the Amended Petition is that the Petitioner is an employee by the Respondent as a Senior Lecturer. That the Kenyatta University Statute establishes offices of Directors appointed by the Vice Chancellor on behalf of the University Council, for a renewable 3 years term. He avers that his appointments to directorships keep being revoked whimsically, despite that he has not completed any 3-year term. That consequent to his position as a lecturer, he was appointed as a Director Endowment and Alumni Programmes for a 2-year term commencing on the 1/08/2024, as an additional responsibility.
2. That by revoking the said appointment without any justifiable cause, the Respondent has acted in a whimsical manner in breach of the Petitioner’s right to fair administrative action. That similarly, his appointment as a board member Confucius Institute Board and Director Centre for Teacher Professional Development and Excellence was similarly revoked without reasons or legal justification. That the revocation does not pass muster of legitimacy since it denies the Petitioner an opportunity of being heard on any allegations resulting in the revocation. That the Respondent’s actions are a display of poor corporate governance and abuse of instruments of governance including Statute XXII, which set out the grounds of revocation of the appointment of a director limited to gross misconduct, incompetence and any other good reason.
3. That in order to determine whether the Petitioner is guilty of gross misconduct, incompetence or any other good reason of revoking his appointment, he is entitled to be heard. That the Vice Chancellor has no authority to act on behalf of the University Council where the Council is improperly constituted following the resignation of a chair, and until the Cabinet Secretary appoints another Chair in accordance with the Universities Act. The Petitioner seeks the following;
i. The Honourable court do issue conservatory orders staying the revocation of the Petitioner appointment as Director Endowment and Alumni Programmes until lawfully removed on grounds listed in Statute XXII of Kenyatta University.
ii. The Honourable court does declare that the revocation of the Petitioners Appointment as a Director Endowment and Alumni Programmes prior to effluxion of his contract is unlawful.
iii. The letter dated 11/12/2025 be removed into this court and quashed for violating the Petitioners right to fair administrative action.
iv. The Honourable court does order that the Petitioner be compensated for loss of his emoluments following the revocation of his appointment as Board member Kenyatta University Confucius Institute Board, Director Centre for Teacher Professional Development and Excellence and Director Endowment and Alumni Programmes.
v. The Honourable court does order that the Petitioner be awarded general damages for violation of his right to fair administrative action following the revocation of his appointments as Board member Kenyatta University Confucius Institute Board, Director Centre for Teacher Professional Development and Excellence and Director Endowment and Alumni Programmes.
vi. The Honourable Court does declare that the Respondent is obliged to apply the Mwongozo Code of Governance, 2015 in its decision-making processes.
vii. The Respondent be condemned to pay Costs of suit together with interest.
viii. Any other relief that the court may find just to grant
4. The Respondent opposed the Petition vide its Replying Affidavit sworn on 22 nd December 2025 by Prof. Paul Kuria Wainaina, its Vice-Chancellor. He deposed that the Petition was sub judice Nairobi ELRC Petition No. E253 of 2025; Elizabeth Chesang & Another; Michael Mwangi Gachara, intended Petitioner v Prof. Paul Kuria Wainaina & 4 others, which is pending determination. That the Petition undermines the orderly administration of justice and offends the principles of judicial economy, finality and consistency. He stated that he is authorized by the University’s Statutes under Statute VII(9) to re-appoint, re-designate, or re-assign officers, in consultation with the University Council, where circumstances so require, in the University’s best interests. In denying the Petitioner’s reliance on Statute XXII, that provides for revocation of directorship, the affiant stated that the Petitioner’s re-assignment was in exercise of the mandate to ensure institutional efficiency, continuity and effective deployment of human resources.
5. He deposed that in the Petition No. E253 of 2025, where the Petitioner is the intended 3 rd Petitioner, seeks an order that conservatory orders do issue staying the revocation of the Petitioners appointment as Director, Endowment and Alumni Programmes pending the hearing and determination of the Application and the Petition; which is identical to prayer (b) sought herein. He contended that the Petitioner has invoked this Court’s jurisdiction twice seeking substantially similar reliefs arising from same facts against the Respondent. He added that Section 6 of the Civil Procedure Act prevents this Court from hearing when a matter is directly or substantially in issue in a previous suit pending before a competent court. He stated that the instant suit ought to be stayed pending the determination of the mentioned suit.
6. He stated that he was aware that the Cabinet Secretary appointed another chairperson on 19 th December 2025. He stated that Statute VII(7) of the Statutes vested authority on him to appoint, inter alia , heads of units and directors of centres. It was averred that the orders sought invite the Court to substitute its judgement for that of the University’s lawful organs in matters of internal administration. He therefore termed the Petition as baseless, speculative and calculated to vex the Respondent. He prayed that the same be dismissed with costs.
7. In a Further Affidavit sworn by Prof John Okumu on 16 th July 2026, in response to the raised claim that the Petitioner had lost emoluments of Kshs. 58,100.00, per month, he stated that by dint of the orders of this Court of 23 rd December 2025 retaining the status quo and that of 7 th January 2026 preventing the filling of the position, the Petitioner remained in office and continued earning his full allowances. He added that the Petitioner’s fixed term contract of two years was lapsing on 31 st July 2026. He contended that the Petitioner had not suffered any financial loss and therefore not entitled to compensation. He added that unlike the position of director, the Petitioner has not adduced evidence of membership of the Kenyatta University Confucius Institute Board and the directorship of the Centre for Teacher Professional Development and Programmes. He added that the petitioner also failed to seek interim orders to preserve his purported appointments to these positions. He deposed that loss of allowance is a special damage which must be specifically pleaded and proved, and which the Petitioner had failed to so do.
Submissions
8. The Petitioner’s counsel’s submissions raised the following issues for determination: (i) Whether the sudden revocation of the Petitioner’s directorship appointments violated the Right to Fair Administrative Action under Article 47 of the Constitution and the Fair Administrative Action Act (FAAA); (ii) Whether the Petitioner had a legitimate expectation to complete his fixed term additional appointment as Director of Endowment and Alumni Programmes; (iii) Whether the Respondent violated the Petitioner’s Right to fair labour practices under Article 41 of the Constitution by arbitrarily withdrawing contractual appointments and attached emoluments; (iv) Whether the Vice Chancellor had the legal authority to unilaterally revoke the appointments while the University Council was improperly constituted; (v) Whether the Petitioner is entitled to the reliefs sought, including conservatory orders, general damages, and compensation for lost emoluments.
9. On the first issue, it was submitted that the Respondent is a body corporate whose administrative decisions must pass the strict requirements of Article 47(1) of the Constitution. It was submitted that under Article 10, 73 and 232 the Constitution binds state organs, state officers, public officers and all persons when making its decisions. That the same requirements were reproduced in Chapter 8 of Mwongozo Code of Governance for State Corporations, 2015. It was submitted that Article 47(2) of the Constitution and Section 4(2) of the Fair Administrative Actions Act provide for the right to be given written reasons for an administrative action that has or is likely to adversely affect a right or fundamental freedom of the affected person. Reliance was placed on the decision in Saire & another v Cabinet Secretary for Lands and Planning & another [2024] KEELRC 894 (KLR) that cited the Court of Appeal decision in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR.
10. Counsel was added that the Kenyatta University Statute XXII strictly bound the University's hand by limiting the grounds for revoking a director’s appointment to gross misconduct, incompetence, or any other good reason. That the Kenyatta University Statute XXII (2) states that ‘The appointment of a Director may be revoked by the Vice chancellor on grounds of gross misconduct, incompetence, or for any other good reason .’ It was submitted that to determine whether any of these high thresholds had been met, the baseline requirement of the audi alteram partem rule (listen to the other side) must apply. It was argued that the Respondent failed to issue a show-cause letter, failed to present any allegations, and failed to grant the Petitioner an opportunity to respond before issuing the revocation letter dated 11/12/2025. Reliance was placed on the Court of Appeal decision in Narok County Government & another v Birir & another [2015] KECA 118 (KLR).
11. Reliance was further placed on Republic v Cabinet Secretary, Ministry of Education & another; Wamoto (Ex parte Applicant) [2024] KEELRC 106 (KLR) to counter the Respondent’s argument on service under pleasure doctrine. It was submitted that the Petitioner’s appointment as Director, Centre for Teacher Professional Development and Excellence was evidenced by exhibit MMG 3 at page 12. It was argued that the Petitioner’s Supplementary Affidavit showed how the revocations affected him financially and socially. It was submitted that the Petitioners pay slip for October 2022 and January 2023 shows how drastic the revocation of his appointment left him with a paltry Kshs. 1,540.00, from Kshs 168,498.00; showing how the lost emoluments occasioned difficulty in managing the school fees for his daughter which resulted in arrears as exhibited in MMG 8. It was submitted that the revocation letter complained of was an adverse decision affecting the Petitioner’s interests, reputation and earnings.
12. On the second issue it was submitted that the Petitioners Appointment letter provided for a fixed period of 2 years with effect from 1 st August 2024; thus, he had a legitimate expectation that it would run for the period. It was contended that his appointment to the board member Confucius Institute did not have a term limit, while that of the Director Centre for Teacher Professional Development Excellence had 5 months as per the appointment letter and a possible 2 more years as per University Statutes XXII(1), which provided for a 3 year term renewable making a total of 6 years. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, among other case laws which discussed the doctrine of legitimate expectation.
13. On the third issue, it was submitted that while the Petitioner remained a Senior Lecturer, the additional administrative roles were explicitly tied to his employment contract as additional responsibilities carrying specific financial packages. It was submitted that the arbitrary stripping of these roles directly resulted in a severe reduction of the Petitioner's monthly earnings and an immediate loss of contractual benefits. It was submitted further that Article 41(1) of the constitution guaranteed every worker the right to fair labour practices. That the loss of earnings, coupled with the public embarrassment and professional stigma associated with multiple unexplained revocations, has caused the Petitioner immense mental anguish and anxiety.
14. On the fourth issue, it was submitted that the Vice Chancellor’s power was derivative, meaning that he acted as an agent of the Council. It was submitted that it was a settled principle of corporate governance and administrative law that an agent cannot act for a principal that is legally comatose or improperly constituted. It was argued that the same was consistent with the principles of the Mwongozo Code of Governance for State Corporations (2015) and Article 232 of the Constitution, which dictate strict adherence to transparency, institutional accountability, and rule-based governance. Reliance was placed on University of Nairobi & 2 others v Universities Academic Staff Union (UASU) & 4 others (Civil Appeal (Application) E771 of 2021) to submit that the Court of Appeal re-emphasized that the leadership of public universities must strictly respect the statutory separation of powers between the Vice Chancellor’s office and the Governing Council. It was argued that any action taken in the absence of a properly constituted Council is an ultra vires abuse of power.
15. On the fifth issue, it was submitted that with proof that the Respondent violated the Petitioner’s rights to fair administrative action the next question is whether the Petitioner is entitled to compensation for quantifiable emoluments lost, and general damages where the Court finds a statutory or constitutional wrong. Reliance was placed on the decisions in Kibuange v County Government of Mombasa [2023] KEELC 17311 (KLR) and Miriti v Governor, Meru County & another [2024] KEELRC 2564 (KLR) where the court granted damages amounting to Kshs. 3,000,000/- for a violation of the Petitioners rights under Article 47 of the Constitution. Reliance was also placed on the case of Mundia Njeru Gateria v Embu County Government & 5 others [2015] KEELRC 249 (KLR) where the court granted Kshs. 5,000,000/- for the violation of the petitioner’s fundamental rights and freedoms. The Court was therefore urged to award general damages of Kshs. 7,000,000/-. On cost, it was submitted that they should follow the event.
16. The Respondent on the other hand raised the following issues: (i) Whether the revocation of the Petitioner’s additional appointment was a lawful exercise of the Vice-Chancellor’s mandate under the Kenyatta University Statutes; (ii) whether the Petitioner had proved any violation of Articles 41 and 47 of the Constitution, or any legitimate expectation; (iii) whether the Amended Petition raises any constitutional issue at all, or is merely an ordinary but unmerited employment dispute; and (iv) whether the Petitioner is entitled to the reliefs sought.
17. On the first issue, counsel reiterated the contents of the Affidavit adding that the Petitioner was neither dismissed, demoted nor subjected to any disciplinary process. It was submitted that where a revocation is not premised on misconduct or incompetence, there was no accusation to be answered. In submitting that the acts of public bodies are presumed to be regular, lawful and reasonable reliance was placed on the Supreme Court decision Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of OwinoUhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 others [2024] KESC 75 (KLR) which held that: “… in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable” Additionally support was garnered from the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR) held that: “In law, there is a presumption of regularity. Under this presumption, a court presumes that official duties have been properly discharged and all procedures duly followed until the challenger presents clear evidence to the contrary.” It was argued that since no such evidence had been tendered; the presumption stood unrebutted.
18. On the second issue, it was submitted that no violation of Articles 41 and 47 has been proved and no legitimate expectation arose citing Otieno v Airtel Kenya Limited [2018] KEHC 9063 (KLR), Mativo J. (as he then was) held that: “It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum… The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon… unsupported hypotheses.”
19. It was submitted that measured against the above standard, the Amended Petition was barren. It was added that the Petitioner tendered no evidence of illegality, bad faith, ulterior motive or discrimination and nothing beyond the bare assertion that the decision was “whimsical”. In supporting that the Petitioner could not take refuge in legitimate expectation reliance was placed on Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR), the Supreme Court settled the governing elements for legitimate expectation. It was submitted that an expectation inconsistent with a public body’s governing instruments was incapable of being legitimate as legitimate expectation operates within the confines of the law, never against it. It was submitted that the invocation of the Mwongozo Code of Governance for State Corporations (2015) was misconceived on account that it was not a source of justiciable private rights, and could amend, repeal or override the express provisions of the University’s Statutes. It was added that the prayer for a declaration that the Respondent “is obliged to apply” the Code in its decision-making was therefore incapable of advancing the Petitioner’s cause.
20. On the third issue, it was submitted that the Amended Petition raised no constitutional issue and that it was an ordinary but unmerited employment claim in constitutional garb. Reliance was placed on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) among other cases on the principle of avoidance. It was added that the Amended Petition lacked precision as highlighted in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154, and in Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR).
21. On the fourth issue, it was submitted that the fundamental difficulty facing prayers (a), (b) and (bb) was that they had been overtaken by time. Counsel added that by the time this Court delivered judgment, there would be no subsisting term to stay, no office to which the Petitioner could be restored, and no continuing legal relationship upon which a declaration or such other order could operate. That the prayers (a), (b) and (bb) will become moot. Reliance was placed on the doctrine of mootness delineated by the Supreme Court in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR).
22. On compensation for loss of emoluments in relation to the Petitioner’s appointment as Director, Endowment and Alumni Programmes, it was reiterated that the Honourable Court granted an order of status quo on 23 rd December 2025, and a further order stopping the scheduled handover of the office on 7 th January 2026. That consequent to those two court orders, the Petitioner remained in office earning his full allowances and his fixed-term contract lapsed on 31 st July 2026. It was argued that the Petitioner had not suffered any loss, and was therefore not entitled to any compensation. Support was garnered from Hahn v Singh [1985] KLR 716 cited with approval in Wanjala v Githaiga [2026] KEHC 2672 (KLR) to submit that the loss of earning from the loss of membership to the Boards was had not proved.
23. It was further submitted that even if the Petitioner’s word was to be considered, his deposition in the Supplementary Affidavit is that his appointment as Director, Centre for Teacher Professional Development and Excellence was for a term of one (1) year commencing 25 th April 2022. That term expired by effluxion of time in or about April 2023, more than two and a half years before this Petition was filed. That the pay slips are dated October 2022 and January 2023 respectively; and on the face of it prove that the Petitioner was paid a director’s allowance while he actually served in those appointments more than three years ago.
24. It was added that the prayer for general damages is also unjustified and ought not to be granted. Reliance was placed on Kenya Broadcasting Corporation v Geoffrey Wakio [2019] KECA 65 (KLR) . It was argued that awarding general damages together with compensation sought at prayer (c) would sanction the very duplication which the Court of Appeal. On prayer (e), it was argued that this Honourable Court has no jurisdiction to grant and ought not to entertain. It was submitted that the Amended Petition is incompetent, unmerited and this Court ought to dismiss it with costs to the Respondent.
Analysis
25. The issues that for determination are: (i) Whether this Petition meets the threshold of Constitutional Petitions; (ii) Whether the Respondent is bound by the provisions of Mwongozo; (iii) Whether revocation of the Petitioner’s directorship amounts to unfair and unlawful infringement of his rights; (iv) whether the Petitioner is entitled to the reliefs sought.
26. On the first issue, the threshold is provided for under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 , (hereinafter the Mutunga Rules) which provides the structure and form to be taken by constitutional petitions.
It provides that:
(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g)the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
27. On the other hand, in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) the Court of Appeal observed that:
…
46.We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.
28. From the foregoing, coupled with the Respondents’ response to the Petition, the court finds that the petition is consistent with the Mutunga Rules.
29. On the second issue, the Petitioner’s argument is that the Respondent was bound by the Mwongozo, since it is a State Corporation. The Respondent on its part argued that it was not bound as it had the University Charter.
30. Section 2 of the State Corporations At defines a state corporation as follows:
"state corporation" means—
(a) a state corporation established under section 3 ;
(b) a body corporate established before or after the commencement of this Act by or under an Act of Parliament or other written law but not—
31. In Republic v Communications Authority of Kenya; Information Communication Technology Association of Kenya (ICTAK) (Ex parte) [2021] KEELRC 7 (KLR ) the court observed that:
31. Section 7 of the State Corporations Act gives power to the President to give directions of a general or specific nature with regard to the better exercise and performance of the functions of State Corporations. Section 30 of the Act gives power to the President to make Regulations for the better carrying into effect of the provisions of the Act.
32. Under these powers, The President promulgated Mwongozo,Code of Governance for State Corporations…
…
37. An advisory from SCAC and the respondent’s Human Resource Policy Manual cannot supersede the provisions of Mwongozo which has statutory underpinning. The averments by the Respondent about a policy of comply or explain is not anchored on any law or regulation and cannot supersede the explicit provisions of Mwongozo.
38. In the case of Resley v the City Council of Nairobi [2006] EA, the court held that: -“In this case there is an apparent disregard of statutory provisions by the respondent, which are of fundamental nature. The Parliament has conferred powers on public authorities in Kenya and has clearly laid a framework on how those powers are to be exercised and where that framework is clear, there is an obligation on the public authority to strictly comply with it to render its decision valid… The purpose of the court is to ensure that the decision making process is done fairly and justly to all parties and blatant breaches of statutory provisions cannot be termed as mere technicalities by the respondent.”
39. Further, in Githu Muigai & another v Law Society of Kenya & another, the court held that:-“In our view, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority...”
…
42. By altering the requirements for the position, the respondent also violated the provisions of article 10(2)(b) which provides for observance of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised. Persons who are qualified under Mwongozowere discriminated by the enhancement of the minimum requirements which locked them out. The Board further violated article 73 on the Guiding Principles of Leadership and the Leadership and Integrity Act .
32. In sum, the Respondent’s contention that it is only bound by the Charter and not the Mwongozo is unsustainable.
33. On the third issue, the appointment and revocation of directorship is provided for under Statute XXII (1&2) which state:
“1. Subject to the Charter and these statutes, there shall be a director of an institute, centre or unit who shall be appointed by the Vice- Chancellor on behalf of the University Council, from among members of staff at the rank of lecturer or equivalent and above for a period of three years and shall be eligible for re-appointment for a further period of three years.
2. The appointment of a director may be revoked by the vice-Chancellor on grounds of gross, misconduct, incompetence or for any other good reason.”
Notably, the Respondent acknowledged that there was no g
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