Court throws out petition against Maasai Mara University recruitment
The High Court has struck out a petition where the Public Service Commission (PSC) had been sued over its move to advertise for the top management positions at a public university for lack of jurisdiction.
The commission got a reprieve from the court after its move to advertise for the position of Deputy Vice-Chancellor (Administration, Finance, and Strategy) for the Maasai Mara University was faulted.
Justice Olga Sewe struck out the petition, which had been filed by Mombasa resident, Barawa Sanga, after allowing a notice of preliminary objection, which had been filed by the university challenging the jurisdiction of the court, to hear the matter.
The court noted that the predominant issue in the petition was the alleged abolition of the office of the Deputy Vice-Chancellor (Administration, Finance, and Strategy), during the pendency of an appeal.
“Section 2 of the Employment Act makes it plain that the question of the abolition of office is one that falls within the jurisdiction of the Employment and Labour Relations Court (ELRC),” ruled Justice Sewe.
The judge said that ELRC has the jurisdiction to hear and determine issues around advertisement of vacancies and that Mr Sanga had relied on provisions of the law that invoke the jurisdiction of the court (Employment Court).
“The ELRC has the requisite jurisdiction to determine any constitutional issues,” ruled Justice Sewe.
High Court lacked jurisdiction
The university had argued that the petition related to employment, thus was exclusively the preserve of the ELRC, meaning the High Court lacked jurisdiction to hear and determine it.
PSC also argued that the High Court did not have jurisdiction to hear a case that it said fell within the jurisdiction of the ELRC.
The court had previously issued temporary orders restraining PSC from continuing with shortlisting, interviewing, or appointing any successful candidate with respect to the position of the university’s Deputy Vice-Chancellor (Administration, Finance, and Strategy).
It also restrained PSC from continuing with the process in relation to any other office created with respect to the earlier existing position of DVC (Administration, Finance, and Planning) as contained in an advertisement sent on May 10, 2022.
The orders were issued pending the hearing and determination of an application for conservatory orders by Mr Sanga.
PSC to advertise
In his petition, Mr Sanga wanted an order issued among others quashing the decision of PSC to advertise and invite applications for the position.
The petitioner said the PSC had abolished the office of the DVC (Administration, Finance, and Planning) and created the office of DVC (Administration, Finance, and Strategy) at the university.
He said that PSC’s act of inviting applications is tainted with mala fides (bad faith) as it amounted to defeating an appeal lodged at the Court of Appeal by Prof Mohamed Abdille.
Mr Sanga argued that the invitation for the applications in the circumstances of the case is a violation of the right to fair labour practices of Prof Abdille, who had a pending appeal.
The petitioner said that an inquiry into the advertisement suggests that PSC has abolished the position of DVC (Administration, Finance, and Planning) and created the position of DVC (Administration, Finance, and Strategy).
“This is the most direct attack not just on the previous holder of that position, but also on the provisions, architecture, and design of the constitution and all other laws governing public service,” argued Mr Sanga in his petition.
Pending appeal
According to the petitioner, the decision by PSC suggests that in the event the appeal by Prof Abdille succeeds, he shall have no office to go back to as it would have been abolished.
“This act of abolition of offices when there is a pending appeal on the office sought to be abolished is a dangerous rodent that threatens constitutionalism and the rule of law,” said the petitioner.
Mr Sanga was also seeking a declaration that the decision of the PSC to advertise and invite applications for the position was a violation of the constitution, the PSC Act, and the University Act.
The petitioner also wanted an order issued prohibiting the PSC and the university from shortlisting, interviewing, and taking any decision in respect of received applications for the position of DVC (Administration, Finance, and Strategy).
