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ELRCDismissedCause No 445 of 2017· [2019] KEELRC 2117 (KLR)

Meshack Otieno Kachuodho v Commissioner General - Kenya Revenue Authority [2019] KEELRC 2117 (KLR)

Employment and Labour Relations Court
7 March 2019
MNMathews N. Nduma
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a promotion letter an employer never communicated to the employee is legally worthless, dismissing a Kshs 16 million claim against KRA.

What this practically means

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Executive summary

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The claimant, employed by the Ministry of Finance in 1990 as an Income Tax Assessor Trainee and transferred to the Kenya Revenue Authority in 1996, applied in 2007 for one of 27 Senior Assistant Commissioner positions. He was ranked 50 out of 60 applicants and was not promoted. Upon retirement on 31st December 2015, he discovered in his file a letter dated 12th June 2008 purporting to promote him to Senior Assistant Commissioner with immediate effect. He sued for the difference in remuneration from June 2008 to retirement, computed by his expert witness at Kshs 16,045,512, plus damages for alleged malicious concealment. The respondent, through its Human Resource Manager, testified that the letter was issued in error, arrested immediately with a notation directing that the Pay Change Advice not be issued, and was never communicated to the claimant, who did not qualify on merit. The court framed one principal issue: whether the claimant was promoted on 12th June 2008. Applying Sections 107 and 108 of the Evidence Act, the court held that an uncommunicated letter of promotion conferred no promotion; the elements of offer and acceptance were lacking; by the time of discovery the claimant had reached mandatory retirement age, so the contract was incapable of implementation; and the letter had been cancelled by notation. The claimant's suit was dismissed in its entirety, but the court declined to award costs to the respondent, describing the circumstances as regrettable and making no order as to costs.

Key legal issues

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01

Whether the claimant was promoted with effect from 12th June 2008

Holding

No promotion took effect; the promotion letter was issued in error, marked not to be implemented, and was never communicated to the claimant

Reasoning

RW1 testified the letter was written in error by the Human Resource Department and arrested immediately with a notation 'PCA' (Pay Change Advice) not to be issued. The claimant was ranked 50 out of 60 in the 2008 interviews and did not qualify among the 27 promotion slots. Documentary evidence rebutted the claimant's case. No offer of promotion was ever communicated, so no contract of promotion was consummated.

p. 3
02

Whether a binding contract of promotion arose from the letter found in the claimant's file

Holding

No contract arose; the elements of offer and acceptance were lacking and the parties lacked capacity by the time of discovery as the claimant had reached mandatory retirement age

Reasoning

The court set out the elements of a binding contract (offer, acceptance, consideration, mutuality, competency and capability, written instrument). Since no communication came from the employer, there was no offer or acceptance. By the time the claimant discovered the letter in December 2015 he had reached mandatory retirement age, so the contract was not capable of implementation. The letter had also been cancelled by notation directing it not be implemented.

p. 3

Legal principles established

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  • A letter of promotion that is not communicated by the employer to the employee does not confer the promotion, as offer and acceptance are essential elements of the contract
  • The burden of proof in a civil matter lies on a balance of probabilities on the party who would fail if no evidence were given

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.No order as to costs

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of KenyaSections 107 and 108
  • Kenya Revenue Authority ActEstablishment of KRA (1995)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (statutory provision not stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Meshack Otieno Kachuodho v Commissioner General - Kenya Revenue Authority [2019] KEELRC 2117 (KLR)", Case Analysis (2019). Cause No 445 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2117/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.