Judicial Service Commission v Lucy Gichuki & 8 others
The bottom line
#Kenya's Court of Appeal confirmed that employers cannot cut your salary or allowances without written notice of the change.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st to 21st respondents' initial contracts were open ended
The contracts of 13th June 2012 were open ended because they had no contractual period and did not state permanent and pensionable terms
The court examined the offer letters and found they specified neither a duration nor permanent and pensionable status. By contrast, the 2014 contracts of the 22nd and 23rd respondents expressly ran for two years and were therefore fixed term.
Whether the appellant unilaterally and unfairly varied the contractual terms
The 2016 letters were a continuation of the original contracts, not new and distinct contracts, and their issuance without written notice of changes breached section 13 of the Employment Act
Interpreting the 2016 letters in their ordinary meaning, the court held the appellant intended to amend the pre-existing terms. The risk allowance was withdrawn and the responsibility allowance reduced without the written statement of change required by section 13. The non-payment of the risk allowance could not be excused by the HR policy organogram; the appellant was bound by its contractual bargain.
Whether the 22nd and 23rd respondents' petition was merited
The trial court was correct to dismiss it; their express two-year fixed-term contracts gave rise to no legitimate expectation of renewal
Unlike their counterparts, the 22nd and 23rd respondents' 2014 contracts clearly stated a two-year duration with no promise of deliberation on longer-term contracts. Accordingly no legitimate expectation of automatic renewal arose, and the cross-appeal on this ground failed.
Whether Articles 27(1), 41 and 47 and the doctrine of legitimate expectation were violated
Yes, as regards the 1st to 21st respondents: the unilateral reduction and withdrawal of allowances infringed equality, fair labour practices and fair administrative action, and offended legitimate expectation
Failure to confine itself to section 13 of the Employment Act violated fair labour practices; ambushing employees with unfavourable amended terms contravened Article 47. By conduct (enhancing the responsibility allowance as an ex gratia payment), the appellant fostered a legitimate expectation of positive progression rather than reduction.
Whether general damages were available
No; the relief was not pleaded and a declaration suffices as vindication
The petition never expressly sought general damages; the omnibus prayer cannot ground a substantive relief. Moreover, not every constitutional violation attracts damages; here a declaratory order vindicates the right, following the Supreme Court in CMM v Standard Group.
Legal principles established
#- An employer must, under section 13 of the Employment Act, give the employee a written statement of any change to the particulars of the contract; failure to do so renders any withholding or reduction of contractual benefits due and owing
- Parties are bound by their contractual terms, which cannot be varied unilaterally, and an employer cannot escape a bad bargain by pointing to an internal policy or organogram
- An employee's continued performance after a unilateral variation does not amount to acceptance of the variation where the employee has signalled objection and the employer does not end the contract
- An omnibus prayer for 'any other or further relief' cannot be the basis for granting a substantive relief such as general damages that was not expressly pleaded
- An award of general damages for constitutional violations is not an automatic relief; a declaration may suffice as vindication
Court orders
#- 1.The appeal is dismissed
- 2.The cross-appeal is dismissed
- 3.Each party shall bear its own costs of the appeal and the cross-appeal
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Cause No. 260 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decision of the Employment and Labour Relations Court (the judgment describes itself as 'This is a first appeal'); the precise statutory provision is not cited in the extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Lucy Gichuki & 8 others", Case Analysis (2025). Not expressly numbered in the extract (appeal from Nakuru ELRC Cause No. 260 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1220/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.