Interior Cabinet Secretary Fred Matiang’i has been ordered as an individual to foot the cost of a case that was filed by an activist challenging the appointment of six members of the University of Nairobi Council.
Dr Matiang’i made the appointments in March last year and despite a court order stopping him went ahead to re-appoint the six.
In a judgment issued by Justice George Odunga on February 13, the judge also stopped the Council’s members from serving in that capacity.
“An order of prohibiting the implementation of Kenya gazette notice no. 7609 and 7610 dated July 31, 2017 and published on August 7, 2017 by the former Education CS appointing the chairperson as well as members of the Council of UON is hereby issued,” ruled Justice Odunga.
The judge criticized the members of the Executive arm of government for ignoring court orders.
“It also raises basic questions of why the members of the Executive who have sworn and agreed to be guided by the provisions of the Constitution are breaching the supreme law of the land with remarkable arrogance or ignorance,” said Justice Odunga.
He went on: “This application is a clear indication that some members of the executive arm of this country have not tried to understand and appreciate the provision of this new Constitution. It also shows yester years impunity are still thriving in our executive arm of the government.”
The activist, Mr Thadayo Obanda, had moved to court in August last year, to challenge the appointments and had sued Dr Matiang’i as the Education CS at the time and the Attorney General Githu Muigai.
He had faulted Dr Matiang’i of unlawfully appointing the said Council members even after the High Court had initially suspended such appointments from being made.
He had claimed that Dr Matiang’i made the appointment in blatant contempt of court orders issued on March 3 after the judge barred him from unlawfully meddling with the composition of the governing council of the university.
Mr Obanda claimed that the appointments of Mr Timothy Mwangi Kiruhi, Mr Meshack Kidenda, Mr Victoria Otieno, Mr Mahat Somane, Mr Peter Maangi Mitiambo and Ms Jane Wanjiru Michuki were made without public participation hence the six should be barred from assuming office.
He had argued that the six had been appointed to serve a term of three years in office instead of the requisite four and that Mr Somane as well as Mr Mitiambo are part of the staff at the university hence could not hold other public offices.
The University on its part told court that there had been no open process of recruitment through an advertisement, shortlisting of candidates as well as interviews prior to the appointment.
The varsity admitted to court that there was no transparent process in the disputed appointment and that the University Act requires the appointees to be five.
The institution accused the Dr Matiang’i of violating the Fair Administrative Action Act.
But according to Dr Matiang’i, he had made the appointments following a separate court decision hence he followed the law to the latter.
With regards to the two members who were said to be staff, he had argued that the logical thing for them to do was to simply resign before taking up their roles at the Council.
He argued that if his appointments are blocked, the university risks being exposed to accountability queries yet the Council is supposed to approve financial, academic programs among other things.
However, Justice Odunga ruled that the Council must have only five members appointed in a prescribed guideline as well as an open process and public interest.
RULE OF LAW
“Accordingly the courts will never tire in its quest of upholding the constitution and the rule of law and where the same are violated, the courts will continue to bring back those who defile the constitution as well as the law on track by pointing out to them their iniquities and transgressions by quashing or setting side such actions,” Justice Odunga said.
He added: “I do not subscribe to the school of thought that a mistake repeated several times acquires validity by that mere fact.”
The University through Deputy Vice-chancellor Isaac Mbeche had sworn an affidavit to oppose the appointment of the new members.
In August last year, the council was forced to conduct its first meeting outside the chambers after the management denied them access to the institution’s facilities.
The council led Dr Kiruhi was re-appointed via Special Gazette Notice dated August 7 by Dr Matiang’i after his earlier appointment in March was quashed by Justice Odunga for failure to follow the law.