1. The Application that comes up for judgment is the one dated 28th February, 2025, wherein the Applicant is seeking the following orders;
1) That an Order of Certiorari to remove into the High Court for the purposes of it being quashed, the University of Nairobi Transformation Strategy (2025-2026) adopted by the Council of the Respondent on 9th December 2024.
2) That an Order of Prohibition prohibiting the further implementation of the University of Nairobi Transformation Strategy (2025-2026) adopted by the Council of the Respondent on 9th December 2024.
3) That the costs of the application be provided for.
2. It is the Applicant’s case that on 9th December 2024, the Respondent unilaterally adopted the University of Nairobi Transformation Strategy (2025–2026) ("the new Policy") without any form of stakeholder consultation, contrary to the Constitution and relevant statutory provisions. The said Policy was marked confidential and slated for immediate implementation beginning February 2025.
3. The Applicant avers that the Respondent had already developed and adopted a valid Strategic Plan (2023–2027) through a consultative process involving all key stakeholders, including the Applicant. This Plan was prepared in compliance with the Public Finance Management Act, Public Service Commission Performance Management Regulations, and the Guidelines for Preparation of the Fifth-Generation Strategic Plan (2023–2027) issued by the National Treasury and Planning.
4. It is the Applicant’s contention that the 2023–2027 Strategic Plan was lawfully binding and intended to guide the Respondent’s financial, academic, and governance operations. The unilateral introduction of the new Policy undermines the participatory and lawful process previously followed and disregards the legitimate expectations of stakeholders who contributed to the adopted Strategic Plan.
5. The Applicant states that the Respondent, acting through the Chancellor, lacks the legal authority or jurisdiction to unilaterally develop and implement a separate and distinct transformation strategy that contradicts the existing and lawfully adopted Strategic Plan (2023–2027). The implementation period of the new Policy overlaps with that of the Strategic Plan, creating inconsistency and legal irregularity, as the Respondent is bound to operate within the framework of the adopted Plan.
6. The Applicant further states that the Respondent, through its Council, has initiated immediate steps to implement several key actions under the newly adopted Transformation Strategy (2025–2026), including:
(i) Establishment of a Chancellor's Office on campus;
(ii) appointment of two professional directors to the Respondent’s Council;
(iii) development of an Academic and Research Performance Strategy and Incentivization Programme;
(iv) formulation of an Asset Optimization and Conversion Master Plan; and
(v) creation of a new Special Purpose Vehicle (SPV) to mobilize, manage, and distribute funding.
7. The Applicant contends that the actions undertaken by the Respondent under the newly adopted Transformation Strategy (2025–2026) amount to significant public policy decisions that, under Article 10 of the Constitution, require public participation. The Council’s secretive adoption and immediate implementation of the Policy marked confidential and withheld from distribution violates the constitutional principles of transparency, accountability, and participation. The Policy is a radical and unlawful deviation from the existing Strategic Plan (2023–2027), which was lawfully adopted in accordance with the Public Service Commission Performance Management Regulations, 2021 and the Public Finance Management Act, 2012.
8. He maintains that the appointment of two professional directors to the Council is ultra vires and contrary to Section 37 of the Universities Act, which does not authorize the Council to appoint its own members, rendering the action unlawful and the Policy's implementation invalid.
9. Further, the Applicant maintains that the new Policy is a radical departure from the Strategic Plan whose preparation, adoption and implementation is governed by the outlined provisions of Regulation 11 & 12 of the Public Service Commission Performance Management Regulations, 2021 and Sections 68(2)(G) And 149(2)(G) of Public Finance Management Act, 2012.
10. The Applicant avers that despite the provision of Section 37 of the Universities Act, the Respondent has already begun implementing the impugned Policy, as evidenced by a vacancy advertisement for the position of Vice Chancellor, which lists among its responsibilities the implementation of the 8-point Transformation Strategy approved in December 2024 with other imminent actions under the Policy include establishing the Chancellor’s office on campus and further appointments, which form the subject of this suit.
11. The applicant canvassed his application with written submissions dated 24th March, 2025.
12. The Applicant submits that the Respondent has failed to demonstrate how the impugned Transformation Strategy (2025–2026) aligns with or implements any of the strategic objectives set out in the approved Strategic Plan (2023–2027). Under Section 109 of the Evidence Act, the burden of proving such an assertion rest with the Respondent, which they have not discharged. Moreover, once a Strategic Plan has been lawfully adopted, the Respondent cannot lawfully formulate a separate strategy outside of it for purposes of implementation.
13. This position is reinforced by Rule 11(1)(f) of the Public Service Commission Performance Management Regulations, which mandates that a Strategic Plan must, in itself, comprehensively address key institutional priorities without recourse to parallel or conflicting instruments.
14. The Applicant argues that while the Chancellor may advise the Council under Section 38(3)(c) of the Universities Act, such advice must comply with constitutional and statutory requirements. Once a Strategic Plan is lawfully adopted through public participation under Rule 12 of the Performance Regulations, the Council cannot introduce separate mechanisms like the Transformation Strategy (2025–2026) to implement it. The eight-point Transformation Agenda, including Council appointments, KPI adjustments, and new academic and asset plans, is neither part of nor consistent with the approved Strategic Plan (2023–2027).
15. He invokes Rule 15(1) (a) of the Performance Regulations, which provides that:
“Every public body shall, at the commencement of each financial year, sign a performance contract which shall be related to the programs, activities and performance targets specified in the public body's approved strategic plan…”
16. It is the Applicant’s submission that it is unlawful and procedurally improper for the Chancellor or the Council to introduce separate or supplementary programs that contradict or deviate from the approved Plan, regardless of intent.
17. It is further submitted that transparency and public participation are fundamental to all public policy decisions, including the formulation of the UoN Transformation Strategy, as mandated by Rule 11(2) and Rule 12(b) of the Performance Regulations, which require participatory development and timely dissemination of the Strategic Plan to stakeholders.
18. According to him, the Chancellor’s role was not as an adviser per Section 38(3) of the Universities Act, but the directive originated from the Office of the President, a fact not disclosed by the Respondents.
19. The Applicant submits that the Chancellor violated mandatory principles of transparency and public participation as provided for under Article 10 of the Constitution, which requires public participation. No such participation occurred, including from the Applicant, a failure underscored by the precedent set in Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] KEHC 473 (KLR) where it was held thus:
“Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be deliberately sought and taken into account”
20. Reliance is placed in Okoiti v Kenya Institute of Supplies Management & 4 others (2023] KEHC 22331 (KLR), where the court held as follows:
“A perusal of the adduced evidence makes it apparent that the 1st and 2nd respondents did not in the slightest way seek to uphold these principles before enactment of the CPD Policy Guidelines. The effect of lack of compliance in public participation principle manifestly renders the impugned policy unlawful and unconstitutional.”
21. The Applicant submits that Rule 13(2) requires Public Service Commission approval for new job titles, yet the Respondent admits these positions in the Transformation Strategy are not in the approved Strategic Plan. The Respondent’s reliance on a 2020 Circular allowing co-opted members with SCAC approval is misplaced, as no skills gap, duration, or SCAC approval request is shown despite appointments starting February 2025.
22. Further, it his submission that the Strategy’s plan for bi-weekly Council meetings contradicts legal limits set by the State Corporations Act and the Circular, which cap meetings at six per year unless extra meetings are approved. The Respondent’s unilateral move to increase meeting frequency is unlawful.
23. The Applicant argues that objective 2 of the impugned Transformation Strategy which ties the Vice Chancellor’s KPIs to this Strategy is unlawful.
24. Regarding objectives 3, 4, 5, 7, and 8, including the academic and research performance strategy and the introduction of “Chancellor’s Awards,” the Applicant argues these contravene the Performance Regulations, which require all performance strategies and reward schemes to be approved and aligned with the approved Strategic Plan and the Public Service Commission. Similarly, proposals for asset optimization, restructuring, and creation of Special Purpose Vehicles are unlawful, as planning, budgeting, and implementation must comply with statutory guidelines and cannot be secretly or hastily enacted as done under the impugned Strategy.
25. The Applicant prays that this Honorable court grants the orders as prayed.
The Respondent’s case:
26. The Respondent in response to the Applicants’ Notice of Motion dated 28th February, 2025 filed a Replying Affidavit by Prof Amukowa Anangwe sworn on 17thMarch, 2025 and written submissions dated 4th April, 2025
27. The Respondent asserts that neither the Chancellor nor the University of Nairobi Council has violated any legal provisions in implementing the Transformation Strategy.
28. It emphasizes that the Council, as the apex governance body under the Universities Act, holds the exclusive mandate to oversee the achievement of university education objectives, and that attempts by UASU-UoN Chapter to interfere with or usurp these functions are legally baseless.
29. It is contended that UASU-UoN Chapter, which lacks statutory authority, has made unjustified allegations and is engaging in a concerted effort to obstruct the Council’s lawful operations as part of a broader scheme to undermine governance.
30. The Respondent accuses the Applicant’s Representative of acting in bad faith by disseminating a defamatory letter on 1st March 2025 to various government officials, a move described as malicious, misleading, and contrary to the Mwongozo Code of Governance for State Corporations.
31. In is urged that this Honourable Court should not allow its judicial process to be misused by UASU-UoN Chapter for ulterior and selfish motives, emphasizing that the Court's processes should uphold the rule of law.
32. It is contended that no legal provision was breached when the University Council adopted the Chancellor’s advice regarding the Transformation Strategy, and the instant suit is prematurely filed before the Council could deliberate on its implementation.
33. It is submitted that Section 18(11) and (12) of the University of Nairobi Charter states that the Transformation Strategy is designed to drive strategic, financial, and operational reforms addressing both historical and new challenges highlighted by the Auditor General and other reviews.
34. The Council confirmed that this strategy supports comprehensive institutional reforms under the Universities Act and University Charter, aiming to reposition the university as a top African academic institution by 2025–2026. It also supports the 2023–2027 Strategic Plan goals, advances the “Big 5” initiatives, and promotes transparency, governance, sustainability, and public-private partnerships. The strategy aligns with earlier recommendations from the 2019–2024 Strategic Plan by incorporating external and internal assessments, setting clear targets, and establishing frameworks for implementation and evaluation.
35. The Respondent acknowledges a significant drop in the Times Higher Education Rankings, placing below Kenyatta University and in the lowest global category and asserts that the Council’s "Big 5" agenda aims to restore the university’s academic prestige and rank among Africa’s top five universities.
36. On the issue of asset management, the Respondent highlights a legally and administratively developed 10year Master Plan focused on asset optimization and conversion to protect public land, involving key stakeholders and oversight by a Transparency Board.
37. The Respondent denies allegations of property auctions, affirming that any leasing or sales follow strict policies under the Transformation Strategy.
38. On the issue concerning financials, the Respondent admits a Kshs 9.86 billion deficit in FY 2022/2023, though improved from the previous year’s Kshs 21 billion deficit, with revenue slightly down at Kshs 11.6 billion.
39. It maintains that it is committed to financial reforms, including establishing a special purpose vehicle to enhance strategic partnerships, international student recruitment, industry collaboration, and alumni fundraising efforts.
40. According to the Respondent, the Council’s December 2024 visit revealed severe understaffing in academic, technical, and support roles, causing operational inefficiencies and poor staff-to-student ratios, echoing concerns in the Transformation Strategy. Short-term (0-12 months) recommendations include renovating key infrastructure repairing leaking roofs, upgrading teaching facilities and student housing and enhancing ICT and Wi-Fi to improve academic and administrative functions. The Council stresses the importance of stakeholder consultation before taking action and commits to working with management to uphold the university’s global standing.
41. The Respondent’s broader recommendations are:
i. Short-term (0-12 months): Recruit critical staff, improve student welfare with better recreational facilities and affordable housing.
ii. Medium-term (1-3 years): Develop faculty-specific infrastructure plans, improve procurement and payments, reform governance structures, and strengthen industry partnerships and policy advocacy.
iii. Long-term (3+ years): Undertake major infrastructure projects, diversify funding by attracting international students and research grants, implement comprehensive governance reforms, and build strong monitoring and evaluation systems.
42. It is the Respondent’s case that the Chancellor lawfully exercised his authority under Section 38(3)(c) of the Universities Act by advising the Council via the Transformation Strategy, and the Council’s adoption of this advice was legal. The Transformation Strategy neither replaces nor contradicts the approved 2023–2027 Strategic Plan. The Council was still determining which parts of the Strategy align with the Plan, which need formal embedding, and which require external approvals before implementation. These processes were ongoing when the Applicant filed suit, rendering the petition premature.
43. The Respondent insists all actions comply with legal and regulatory requirements, and the Strategy is intended to complement and strengthen, not replace, existing plans.
44. The Respondent averred that the University of Nairobi Transformation Strategy (2025–2026) does not constitute a new or separate Strategic Plan but is instead an internal operational tool aligned with the existing UoN Strategic Plan 2023–2027.
45. The Respondent argues that the Transformation Strategy supplements rather than replaces or contradicts the existing Plan. The 2023–2027 Strategic Plan is founded on six Key Result Areas, including digitalization, community service, innovation, people-centric frameworks, sustainability, and academic development. Ten strategic objectives under these areas guide the implementation of the Plan, emphasizing digitization, impactful research, effective communication, and innovation.
46. The Respondent further argues that the Public Service Commission (Performance Management) Regulations 2021 are not applicable to the advice given by the Chancellor or the Council’s adoption of the Transformation Strategy, and thus no legal violation has occurred.
47. The Respondent emphasizes that the contents of the Transformation Strategy (2025–2026) are fully aligned with the University of Nairobi Strategic Plan 2023–2027 and do not constitute a deviation from it. Specifically, Objective No. 3 of the Transformation Strategy—Strengthening academic and research performance—is consistent with Clause 4.1 of the Strategic Plan, which outlines non-exhaustive methods to improve teaching and learning outcomes. The seven action points under the Transformation Strategy complement the nine key actions in the Strategic Plan, reinforcing rather than contradicting them. Further, Clause 3.1.2 of the Strategic Plan recognizes internationalization as a key opportunity, encouraging increased academic collaboration and international engagement. In this regard, the Transformation Strategy proposes to enhance academic and research output by increasing the volume and quality of international collaborations and doubling the proportion of international students and faculty, thereby strengthening the University's global academic standing.
48. The Respondent further demonstrates that the objectives under the Transformation Strategy 2025–2026, particularly Objective No. 3, 4 and 8 of the Transformation Strategy which focus on optimizing the University’s asset base through transparent processes and mobilizing external financial resources, responding to challenges such as underutilized land and idle assets as identified in the Council’s Strategic Plan 2019–2024.
49. It is posited that the University of Nairobi’s Strategic Plan highlights strengths like extensive land and buildings, but also notes underutilized assets as a weakness. Its Risk Management Framework identifies financial risks such as reduced capitation and liquidity issues, proposing solutions like reducing reliance on Treasury funding and diversifying revenue sources. Chapter 7 emphasizes resource mobilization strategies to sustainably grow the university's revenue, guided by an analysis of past performance.
50. Therefore, the review of the University of Nairobi's 2018–2023 Strategic Plan emphasizes the need for continuous evaluation, recommending a monitoring and evaluation framework for the 2023–2027 plan. It also calls for a 10-year Master Plan for spatial development, missing in the current plan. The Transformation Strategy prioritizes developing an asset optimization Master Plan aligned with the new strategy. While flexible review guidelines are allowed, it's noted that no actions violate statutory law—though the Chancellor’s office, legally established, lacks office space under the Transformation Strategy. The UASU-UoN Chapter opposes allocating office space to the Chancellor.
51. It is submitted that allocating office space to the Chancellor does not alter the university’s structure and lacks legal grounds for denial.
52. The Respondent contends that the proposal to appoint two professional directors to the Council is deemed premature, as no evidence supports claims of insufficient Council skills.
53. It is the Respondent’s submission that the UASU-UoN Chapter’s legal action has stalled the Council's Transformation Strategy.
54. According to the Respondent, while the law allows 4 to 6 Council meetings per year, additional meetings require justification and Cabinet Secretary approval. The Council has not yet held bi-weekly meetings, and claims of unauthorized sessions are unsubstantiated, especially given the stay orders currently in place.
55. The Respondent refutes claims that Strategic Plan Objectives 3, 4, 5, 7, and 8 are unlawful, stating that no legal violations are evident and that the Chancellor’s Awards proposal will follow due approval processes. It describes the UASU-UoN Chapter’s legal challenge—citing a lack of transparency and public participation—as speculative and premature. The Council acted on the Chancellor’s advice to incorporate the Transformation Strategy into the new strategic plan, with public participation built into the planning process, including staff review and structured management input before broader consultation.
56. The Respondent maintains the Council acted within its authority by using the Finance and Strategy Committee to monitor and evaluate the plan. The Council insists the Transformation Strategy must be adopted before public participation occurs, noting that such participation cannot happen in isolation.
57. It argues that there are legal breaches in the Transformation Strategy’s key actions. It emphasizes that strategic plans can be updated and warns that blocking implementation would impede progress on both the Transformation Strategy and the strategic plan review.
58. It is urged that this Honourable Court finds the implementation of the Transformation Strategy to be lawful, reasonable, and aligned with the strategic objectives of the University of Nairobi Strategic Plan (2023–2027), and that the application by the Applicant be dismissed with costs to it.
Analysis and Determination:
Upon perusing the application and the rival submissions by the parties this court has to determine the following issues;
1) Whether the claim is justiciable.
2) Whether there was Public Participation.
3) Whether the application has merit.
4) Who will bear the costs.
Whether the claim is justiciable:
59. The Respondent believes that the suit is not ripe for determination. It argued that the Council was still in the process of determining which parts of the Strategy aligns with the Plan, which need formal embedding, and which require external approvals before implementation and that these processes were ongoing when the Applicant filed suit, rendering the petition premature.
60. What I understand the Respondent to be saying, is that the suit is not justiciable. The Black’s Law Dictionary 9th edn defines a justiciable controversy as “a controversy in which a claim or right is asserted against one who has an interest in contesting it.” The other definition given of a justiciable controversy is “a question as may properly come before a tribunal for decision”.
61. The court in John Harun Mwau & 3 Others –v- AG & 2 others HCCP No. 65 of 2011 (unreported) stated as follows:
“We also agree with the submissions of Prof. Ghai that this Court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy.”
62. In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015]eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others –v- AG & 2 Others Misc. Appl No. 677 of 2005 the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. as follows:
“In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors.”
63. From the fact that the respondent has already started engaging in rolling out some of the activities in the impugned Transformation Strategy (2025–2026) ("the new Policy"), I am persuaded that indeed the applicant raises issues which in the court’s view are alive and justiciable. More of why the court is persuaded that the suit is ripe will be seen during the analysis of the second issue below.
Whether there was Public Participation:
64. The Applicant, has moved the court since on the 9thDecember 2024, the Respondent adopted the University of Nairobi Transformation Strategy (2025–2026) ("the new Policy") Policy marked confidential and slated for immediate implementation beginning February 2025 without any form of stakeholder consultation, contrary to the Constitution and relevant statutory provisions.
65. The Respondent had already developed and adopted a valid Strategic Plan (2023–2027) through a consultative process involving all key stakeholders, including the Applicant in compliance with the Public Finance Management Act, Public Service Commission Performance Management Regulations, and the Guidelines for Preparation of the Fifth-Generation Strategic Plan (2023–2027) issued by the National Treasury and Planning.
66. The Respondent has admitted that The Council stressed the importance of stakeholder consultation before taking action and that it commits to working with management to uphold the university’s global standing.
67. According to the Respondent, the Council acted on the Chancellor’s advice to incorporate the Transformation Strategy into the new strategic plan, with public participation built into the planning process, including staff review and structured management input before broader consultation.
68. The Respondent insisted that the Transformation Strategy must be adopted before public participation occurs, noting that such participation cannot happen in isolation.
69. In order to determine whether or not there was public participation, this court has been guided by the case of British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) where in answering (i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation and consultation, it was held that;
“Public participation has been entrenched in our Constitution as a national value and a principle of governance under article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with article 1(4) of the Constitution is exercised at both national and county levels”.
70. In the case of Doctors for Life International v. Speaker of the National Assembly and others[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) in part stated as follows:
“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practi
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1) That an Order of Certiorari to remove into the High Court for the purposes of it being quashed, the University of Nairobi Transformation Strategy (2025-2026) adopted by the Council of the Respondent on 9th December 2024.
2) That an Order of Prohibition prohibiting the further implementation of the University of Nairobi Transformation Strategy (2025-2026) adopted by the Council of the Respondent on 9th December 2024.
3) That the costs of the application be provided for.
2. It is the Applicant’s case that on 9th December 2024, the Respondent unilaterally adopted the University of Nairobi Transformation Strategy (2025–2026) ("the new Policy") without any form of stakeholder consultation, contrary to the Constitution and relevant statutory provisions. The said Policy was marked confidential and slated for immediate implementation beginning February 2025.
3. The Applicant avers that the Respondent had already developed and adopted a valid Strategic Plan (2023–2027) through a consultative process involving all key stakeholders, including the Applicant. This Plan was prepared in compliance with the Public Finance Management Act, Public Service Commission Performance Management Regulations, and the Guidelines for Preparation of the Fifth-Generation Strategic Plan (2023–2027) issued by the National Treasury and Planning.
4. It is the Applicant’s contention that the 2023–2027 Strategic Plan was lawfully binding and intended to guide the Respondent’s financial, academic, and governance operations. The unilateral introduction of the new Policy undermines the participatory and lawful process previously followed and disregards the legitimate expectations of stakeholders who contributed to the adopted Strategic Plan.
5. The Applicant states that the Respondent, acting through the Chancellor, lacks the legal authority or jurisdiction to unilaterally develop and implement a separate and distinct transformation strategy that contradicts the existing and lawfully adopted Strategic Plan (2023–2027). The implementation period of the new Policy overlaps with that of the Strategic Plan, creating inconsistency and legal irregularity, as the Respondent is bound to operate within the framework of the adopted Plan.
6. The Applicant further states that the Respondent, through its Council, has initiated immediate steps to implement several key actions under the newly adopted Transformation Strategy (2025–2026), including:
(i) Establishment of a Chancellor's Office on campus;
(ii) appointment of two professional directors to the Respondent’s Council;
(iii) development of an Academic and Research Performance Strategy and Incentivization Programme;
(iv) formulation of an Asset Optimization and Conversion Master Plan; and
(v) creation of a new Special Purpose Vehicle (SPV) to mobilize, manage, and distribute funding.
7. The Applicant contends that the actions undertaken by the Respondent under the newly adopted Transformation Strategy (2025–2026) amount to significant public policy decisions that, under Article 10 of the Constitution, require public participation. The Council’s secretive adoption and immediate implementation of the Policy marked confidential and withheld from distribution violates the constitutional principles of transparency, accountability, and participation. The Policy is a radical and unlawful deviation from the existing Strategic Plan (2023–2027), which was lawfully adopted in accordance with the Public Service Commission Performance Management Regulations, 2021 and the Public Finance Management Act, 2012.
8. He maintains that the appointment of two professional directors to the Council is ultra vires and contrary to Section 37 of the Universities Act, which does not authorize the Council to appoint its own members, rendering the action unlawful and the Policy's implementation invalid.
9. Further, the Applicant maintains that the new Policy is a radical departure from the Strategic Plan whose preparation, adoption and implementation is governed by the outlined provisions of Regulation 11 & 12 of the Public Service Commission Performance Management Regulations, 2021 and Sections 68(2)(G) And 149(2)(G) of Public Finance Management Act, 2012.
10. The Applicant avers that despite the provision of Section 37 of the Universities Act, the Respondent has already begun implementing the impugned Policy, as evidenced by a vacancy advertisement for the position of Vice Chancellor, which lists among its responsibilities the implementation of the 8-point Transformation Strategy approved in December 2024 with other imminent actions under the Policy include establishing the Chancellor’s office on campus and further appointments, which form the subject of this suit.
11. The applicant canvassed his application with written submissions dated 24th March, 2025.
12. The Applicant submits that the Respondent has failed to demonstrate how the impugned Transformation Strategy (2025–2026) aligns with or implements any of the strategic objectives set out in the approved Strategic Plan (2023–2027). Under Section 109 of the Evidence Act, the burden of proving such an assertion rest with the Respondent, which they have not discharged. Moreover, once a Strategic Plan has been lawfully adopted, the Respondent cannot lawfully formulate a separate strategy outside of it for purposes of implementation.
13. This position is reinforced by Rule 11(1)(f) of the Public Service Commission Performance Management Regulations, which mandates that a Strategic Plan must, in itself, comprehensively address key institutional priorities without recourse to parallel or conflicting instruments.
14. The Applicant argues that while the Chancellor may advise the Council under Section 38(3)(c) of the Universities Act, such advice must comply with constitutional and statutory requirements. Once a Strategic Plan is lawfully adopted through public participation under Rule 12 of the Performance Regulations, the Council cannot introduce separate mechanisms like the Transformation Strategy (2025–2026) to implement it. The eight-point Transformation Agenda, including Council appointments, KPI adjustments, and new academic and asset plans, is neither part of nor consistent with the approved Strategic Plan (2023–2027).
15. He invokes Rule 15(1) (a) of the Performance Regulations, which provides that:
“Every public body shall, at the commencement of each financial year, sign a performance contract which shall be related to the programs, activities and performance targets specified in the public body's approved strategic plan…”
16. It is the Applicant’s submission that it is unlawful and procedurally improper for the Chancellor or the Council to introduce separate or supplementary programs that contradict or deviate from the approved Plan, regardless of intent.
17. It is further submitted that transparency and public participation are fundamental to all public policy decisions, including the formulation of the UoN Transformation Strategy, as mandated by Rule 11(2) and Rule 12(b) of the Performance Regulations, which require participatory development and timely dissemination of the Strategic Plan to stakeholders.
18. According to him, the Chancellor’s role was not as an adviser per Section 38(3) of the Universities Act, but the directive originated from the Office of the President, a fact not disclosed by the Respondents.
19. The Applicant submits that the Chancellor violated mandatory principles of transparency and public participation as provided for under Article 10 of the Constitution, which requires public participation. No such participation occurred, including from the Applicant, a failure underscored by the precedent set in Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] KEHC 473 (KLR) where it was held thus:
“Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be deliberately sought and taken into account”
20. Reliance is placed in Okoiti v Kenya Institute of Supplies Management & 4 others (2023] KEHC 22331 (KLR), where the court held as follows:
“A perusal of the adduced evidence makes it apparent that the 1st and 2nd respondents did not in the slightest way seek to uphold these principles before enactment of the CPD Policy Guidelines. The effect of lack of compliance in public participation principle manifestly renders the impugned policy unlawful and unconstitutional.”
21. The Applicant submits that Rule 13(2) requires Public Service Commission approval for new job titles, yet the Respondent admits these positions in the Transformation Strategy are not in the approved Strategic Plan. The Respondent’s reliance on a 2020 Circular allowing co-opted members with SCAC approval is misplaced, as no skills gap, duration, or SCAC approval request is shown despite appointments starting February 2025.
22. Further, it his submission that the Strategy’s plan for bi-weekly Council meetings contradicts legal limits set by the State Corporations Act and the Circular, which cap meetings at six per year unless extra meetings are approved. The Respondent’s unilateral move to increase meeting frequency is unlawful.
23. The Applicant argues that objective 2 of the impugned Transformation Strategy which ties the Vice Chancellor’s KPIs to this Strategy is unlawful.
24. Regarding objectives 3, 4, 5, 7, and 8, including the academic and research performance strategy and the introduction of “Chancellor’s Awards,” the Applicant argues these contravene the Performance Regulations, which require all performance strategies and reward schemes to be approved and aligned with the approved Strategic Plan and the Public Service Commission. Similarly, proposals for asset optimization, restructuring, and creation of Special Purpose Vehicles are unlawful, as planning, budgeting, and implementation must comply with statutory guidelines and cannot be secretly or hastily enacted as done under the impugned Strategy.
25. The Applicant prays that this Honorable court grants the orders as prayed.
The Respondent’s case:
26. The Respondent in response to the Applicants’ Notice of Motion dated 28th February, 2025 filed a Replying Affidavit by Prof Amukowa Anangwe sworn on 17thMarch, 2025 and written submissions dated 4th April, 2025
27. The Respondent asserts that neither the Chancellor nor the University of Nairobi Council has violated any legal provisions in implementing the Transformation Strategy.
28. It emphasizes that the Council, as the apex governance body under the Universities Act, holds the exclusive mandate to oversee the achievement of university education objectives, and that attempts by UASU-UoN Chapter to interfere with or usurp these functions are legally baseless.
29. It is contended that UASU-UoN Chapter, which lacks statutory authority, has made unjustified allegations and is engaging in a concerted effort to obstruct the Council’s lawful operations as part of a broader scheme to undermine governance.
30. The Respondent accuses the Applicant’s Representative of acting in bad faith by disseminating a defamatory letter on 1st March 2025 to various government officials, a move described as malicious, misleading, and contrary to the Mwongozo Code of Governance for State Corporations.
31. In is urged that this Honourable Court should not allow its judicial process to be misused by UASU-UoN Chapter for ulterior and selfish motives, emphasizing that the Court's processes should uphold the rule of law.
32. It is contended that no legal provision was breached when the University Council adopted the Chancellor’s advice regarding the Transformation Strategy, and the instant suit is prematurely filed before the Council could deliberate on its implementation.
33. It is submitted that Section 18(11) and (12) of the University of Nairobi Charter states that the Transformation Strategy is designed to drive strategic, financial, and operational reforms addressing both historical and new challenges highlighted by the Auditor General and other reviews.
34. The Council confirmed that this strategy supports comprehensive institutional reforms under the Universities Act and University Charter, aiming to reposition the university as a top African academic institution by 2025–2026. It also supports the 2023–2027 Strategic Plan goals, advances the “Big 5” initiatives, and promotes transparency, governance, sustainability, and public-private partnerships. The strategy aligns with earlier recommendations from the 2019–2024 Strategic Plan by incorporating external and internal assessments, setting clear targets, and establishing frameworks for implementation and evaluation.
35. The Respondent acknowledges a significant drop in the Times Higher Education Rankings, placing below Kenyatta University and in the lowest global category and asserts that the Council’s "Big 5" agenda aims to restore the university’s academic prestige and rank among Africa’s top five universities.
36. On the issue of asset management, the Respondent highlights a legally and administratively developed 10year Master Plan focused on asset optimization and conversion to protect public land, involving key stakeholders and oversight by a Transparency Board.
37. The Respondent denies allegations of property auctions, affirming that any leasing or sales follow strict policies under the Transformation Strategy.
38. On the issue concerning financials, the Respondent admits a Kshs 9.86 billion deficit in FY 2022/2023, though improved from the previous year’s Kshs 21 billion deficit, with revenue slightly down at Kshs 11.6 billion.
39. It maintains that it is committed to financial reforms, including establishing a special purpose vehicle to enhance strategic partnerships, international student recruitment, industry collaboration, and alumni fundraising efforts.
40. According to the Respondent, the Council’s December 2024 visit revealed severe understaffing in academic, technical, and support roles, causing operational inefficiencies and poor staff-to-student ratios, echoing concerns in the Transformation Strategy. Short-term (0-12 months) recommendations include renovating key infrastructure repairing leaking roofs, upgrading teaching facilities and student housing and enhancing ICT and Wi-Fi to improve academic and administrative functions. The Council stresses the importance of stakeholder consultation before taking action and commits to working with management to uphold the university’s global standing.
41. The Respondent’s broader recommendations are:
i. Short-term (0-12 months): Recruit critical staff, improve student welfare with better recreational facilities and affordable housing.
ii. Medium-term (1-3 years): Develop faculty-specific infrastructure plans, improve procurement and payments, reform governance structures, and strengthen industry partnerships and policy advocacy.
iii. Long-term (3+ years): Undertake major infrastructure projects, diversify funding by attracting international students and research grants, implement comprehensive governance reforms, and build strong monitoring and evaluation systems.
42. It is the Respondent’s case that the Chancellor lawfully exercised his authority under Section 38(3)(c) of the Universities Act by advising the Council via the Transformation Strategy, and the Council’s adoption of this advice was legal. The Transformation Strategy neither replaces nor contradicts the approved 2023–2027 Strategic Plan. The Council was still determining which parts of the Strategy align with the Plan, which need formal embedding, and which require external approvals before implementation. These processes were ongoing when the Applicant filed suit, rendering the petition premature.
43. The Respondent insists all actions comply with legal and regulatory requirements, and the Strategy is intended to complement and strengthen, not replace, existing plans.
44. The Respondent averred that the University of Nairobi Transformation Strategy (2025–2026) does not constitute a new or separate Strategic Plan but is instead an internal operational tool aligned with the existing UoN Strategic Plan 2023–2027.
45. The Respondent argues that the Transformation Strategy supplements rather than replaces or contradicts the existing Plan. The 2023–2027 Strategic Plan is founded on six Key Result Areas, including digitalization, community service, innovation, people-centric frameworks, sustainability, and academic development. Ten strategic objectives under these areas guide the implementation of the Plan, emphasizing digitization, impactful research, effective communication, and innovation.
46. The Respondent further argues that the Public Service Commission (Performance Management) Regulations 2021 are not applicable to the advice given by the Chancellor or the Council’s adoption of the Transformation Strategy, and thus no legal violation has occurred.
47. The Respondent emphasizes that the contents of the Transformation Strategy (2025–2026) are fully aligned with the University of Nairobi Strategic Plan 2023–2027 and do not constitute a deviation from it. Specifically, Objective No. 3 of the Transformation Strategy—Strengthening academic and research performance—is consistent with Clause 4.1 of the Strategic Plan, which outlines non-exhaustive methods to improve teaching and learning outcomes. The seven action points under the Transformation Strategy complement the nine key actions in the Strategic Plan, reinforcing rather than contradicting them. Further, Clause 3.1.2 of the Strategic Plan recognizes internationalization as a key opportunity, encouraging increased academic collaboration and international engagement. In this regard, the Transformation Strategy proposes to enhance academic and research output by increasing the volume and quality of international collaborations and doubling the proportion of international students and faculty, thereby strengthening the University's global academic standing.
48. The Respondent further demonstrates that the objectives under the Transformation Strategy 2025–2026, particularly Objective No. 3, 4 and 8 of the Transformation Strategy which focus on optimizing the University’s asset base through transparent processes and mobilizing external financial resources, responding to challenges such as underutilized land and idle assets as identified in the Council’s Strategic Plan 2019–2024.
49. It is posited that the University of Nairobi’s Strategic Plan highlights strengths like extensive land and buildings, but also notes underutilized assets as a weakness. Its Risk Management Framework identifies financial risks such as reduced capitation and liquidity issues, proposing solutions like reducing reliance on Treasury funding and diversifying revenue sources. Chapter 7 emphasizes resource mobilization strategies to sustainably grow the university's revenue, guided by an analysis of past performance.
50. Therefore, the review of the University of Nairobi's 2018–2023 Strategic Plan emphasizes the need for continuous evaluation, recommending a monitoring and evaluation framework for the 2023–2027 plan. It also calls for a 10-year Master Plan for spatial development, missing in the current plan. The Transformation Strategy prioritizes developing an asset optimization Master Plan aligned with the new strategy. While flexible review guidelines are allowed, it's noted that no actions violate statutory law—though the Chancellor’s office, legally established, lacks office space under the Transformation Strategy. The UASU-UoN Chapter opposes allocating office space to the Chancellor.
51. It is submitted that allocating office space to the Chancellor does not alter the university’s structure and lacks legal grounds for denial.
52. The Respondent contends that the proposal to appoint two professional directors to the Council is deemed premature, as no evidence supports claims of insufficient Council skills.
53. It is the Respondent’s submission that the UASU-UoN Chapter’s legal action has stalled the Council's Transformation Strategy.
54. According to the Respondent, while the law allows 4 to 6 Council meetings per year, additional meetings require justification and Cabinet Secretary approval. The Council has not yet held bi-weekly meetings, and claims of unauthorized sessions are unsubstantiated, especially given the stay orders currently in place.
55. The Respondent refutes claims that Strategic Plan Objectives 3, 4, 5, 7, and 8 are unlawful, stating that no legal violations are evident and that the Chancellor’s Awards proposal will follow due approval processes. It describes the UASU-UoN Chapter’s legal challenge—citing a lack of transparency and public participation—as speculative and premature. The Council acted on the Chancellor’s advice to incorporate the Transformation Strategy into the new strategic plan, with public participation built into the planning process, including staff review and structured management input before broader consultation.
56. The Respondent maintains the Council acted within its authority by using the Finance and Strategy Committee to monitor and evaluate the plan. The Council insists the Transformation Strategy must be adopted before public participation occurs, noting that such participation cannot happen in isolation.
57. It argues that there are legal breaches in the Transformation Strategy’s key actions. It emphasizes that strategic plans can be updated and warns that blocking implementation would impede progress on both the Transformation Strategy and the strategic plan review.
58. It is urged that this Honourable Court finds the implementation of the Transformation Strategy to be lawful, reasonable, and aligned with the strategic objectives of the University of Nairobi Strategic Plan (2023–2027), and that the application by the Applicant be dismissed with costs to it.
Analysis and Determination:
Upon perusing the application and the rival submissions by the parties this court has to determine the following issues;
1) Whether the claim is justiciable.
2) Whether there was Public Participation.
3) Whether the application has merit.
4) Who will bear the costs.
Whether the claim is justiciable:
59. The Respondent believes that the suit is not ripe for determination. It argued that the Council was still in the process of determining which parts of the Strategy aligns with the Plan, which need formal embedding, and which require external approvals before implementation and that these processes were ongoing when the Applicant filed suit, rendering the petition premature.
60. What I understand the Respondent to be saying, is that the suit is not justiciable. The Black’s Law Dictionary 9th edn defines a justiciable controversy as “a controversy in which a claim or right is asserted against one who has an interest in contesting it.” The other definition given of a justiciable controversy is “a question as may properly come before a tribunal for decision”.
61. The court in John Harun Mwau & 3 Others –v- AG & 2 others HCCP No. 65 of 2011 (unreported) stated as follows:
“We also agree with the submissions of Prof. Ghai that this Court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy.”
62. In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015]eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others –v- AG & 2 Others Misc. Appl No. 677 of 2005 the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. as follows:
“In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors.”
63. From the fact that the respondent has already started engaging in rolling out some of the activities in the impugned Transformation Strategy (2025–2026) ("the new Policy"), I am persuaded that indeed the applicant raises issues which in the court’s view are alive and justiciable. More of why the court is persuaded that the suit is ripe will be seen during the analysis of the second issue below.
Whether there was Public Participation:
64. The Applicant, has moved the court since on the 9thDecember 2024, the Respondent adopted the University of Nairobi Transformation Strategy (2025–2026) ("the new Policy") Policy marked confidential and slated for immediate implementation beginning February 2025 without any form of stakeholder consultation, contrary to the Constitution and relevant statutory provisions.
65. The Respondent had already developed and adopted a valid Strategic Plan (2023–2027) through a consultative process involving all key stakeholders, including the Applicant in compliance with the Public Finance Management Act, Public Service Commission Performance Management Regulations, and the Guidelines for Preparation of the Fifth-Generation Strategic Plan (2023–2027) issued by the National Treasury and Planning.
66. The Respondent has admitted that The Council stressed the importance of stakeholder consultation before taking action and that it commits to working with management to uphold the university’s global standing.
67. According to the Respondent, the Council acted on the Chancellor’s advice to incorporate the Transformation Strategy into the new strategic plan, with public participation built into the planning process, including staff review and structured management input before broader consultation.
68. The Respondent insisted that the Transformation Strategy must be adopted before public participation occurs, noting that such participation cannot happen in isolation.
69. In order to determine whether or not there was public participation, this court has been guided by the case of British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) where in answering (i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation and consultation, it was held that;
“Public participation has been entrenched in our Constitution as a national value and a principle of governance under article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with article 1(4) of the Constitution is exercised at both national and county levels”.
70. In the case of Doctors for Life International v. Speaker of the National Assembly and others[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) in part stated as follows:
“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practi
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