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ELRCDismissedJudicial Review Motion (Ex-parte Applicant's motion filed 2nd January 2019)· [2020] KEELRC 1828 (KLR)

Samson Ogechi Nyaanga v Cabinet Secretary, Ministry of Labour & Social Protection & 3 others [2020] KEELRC 1828 (KLR)

High Court of Kenya
24 January 2020
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court ruled that payslips and assumptions don't create permanent employment rights; without an actual promise, a legitimate expectation claim fails.

What this practically means

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Executive summary

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The Ex-parte Applicant was appointed Director of Employment in the Ministry of Labour, Social Security and Services, reporting on 16th December 2015. His appointment letter was silent on the terms of service, but his payslips bore the abbreviation 'permt', which he took to mean permanent and pensionable terms. By a letter of 2nd November 2016, communicated on 20th November 2017, the Public Service Commission clarified that his engagement was on a three-year renewable contract, a decision upheld on his appeal and application for review. He moved the Court by notice of motion seeking certiorari to quash the impugned decisions, prohibition against their implementation, and mandamus compelling reinstatement on permanent and pensionable terms. The Respondents opposed, arguing among other things that the application was time-barred under Order 53 Rule 2, that the contract had expired, and that only private remedies were available. The Court held that neither the advertisement nor the appointment letter provided for permanent and pensionable terms, so there was no promise capable of grounding legitimate expectation; a payslip does not communicate terms of employment. Further, the applicant remained in the permanent and pensionable service of KALRO on leave of absence, had not transferred his pensionable service, and could not hold pensionable terms in two government institutions. The Court of Appeal's decision in Justice Kalpana H. Rawal v Judicial Service Commission on the detriment requirement of legitimate expectation was applied. The motion was dismissed with no orders for costs.

Key legal issues

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01

Whether the applicant had a legitimate expectation of permanent and pensionable employment

Holding

No legitimate expectation arose because the advertisement and letter of appointment were silent on terms, and the payslip abbreviation 'permt' cannot found such expectation

Reasoning

The court held that a pre-requisite to legitimate expectation is a representation by the decision-maker relied upon to the detriment of the claimant. The appointment letter was silent on terms; the applicant himself acknowledged the advertisement was not categorical. The payslips indicating retirement in 2026 do not communicate terms of employment. Without a promise there can be no legitimate expectation.

p. 5
02

Whether the applicant was eligible for permanent and pensionable terms given his KALRO employment

Holding

The applicant was ineligible as he remained in the permanent and pensionable service of KALRO on leave of absence and did not apply for transfer of his pensionable service

Reasoning

KALRO confirmed the applicant was on permanent and pensionable terms there and had taken a two-year leave of absence extended by one year. He did not apply to transfer his pensionable service to the Ministry. One cannot hold permanent and pensionable terms in two separate government institutions, so the PSC's decision to engage him on contract terms was lawful.

p. 6

Legal principles established

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  • A claim based on legitimate expectation requires reliance on the decision-maker's representation to the claimant's detriment; mere legitimate expectation without suffered detriment cannot sustain an action
  • A payslip does not communicate the terms of employment and cannot form the basis for legitimate expectation
  • An officer cannot be employed on permanent and pensionable terms in two separate government institutions simultaneously

Court orders

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  1. 1.The application is dismissed
  2. 2.No orders for costs - each party bears own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 21, 22, 23(3), 24, 27, 41, 47, 232, 236
  • Civil Procedure RulesOrder 53 Rule 2
  • Pensions Actsections 5 and 6
  • Employment Actsection 10
  • Code of Regulations (Revised 2006)Regulation E.15; section E31(6) and (7)
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Servicesections R.41, D.21 and D.22

Cases cited (8)

  • Diana Kethi Kilonzo & Another v Independent Electoral & Boundaries Commission & 10 others
    [2013] eKLR
  • Municipal Council of Mombasa v Republic & Another
    [2002] eKLR
  • Republic v Professor Mwangi S. Kimenyi Ex-parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
  • Erick D. J. Makokha & Others v Lawrence Sagini & Others
    C.A No. 20 of 1994
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • National Water Conversation & Pipeline Corporation v Jane Kanini Mwanza
  • Justice Kalpana H. Rawal v Judicial Service Commission & 3 others
    [2016] eKLR
  • Sethi Auto Service Station & Another v Delhi Development Authority & Others
    (2009) 1 SCC 180
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Constitution (Article 23(3) invoked for reliefs) and Order 53 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson Ogechi Nyaanga v Cabinet Secretary, Ministry of Labour & Social Protection & 3 others [2020] KEELRC 1828 (KLR)", Case Analysis (2020). Judicial Review Motion (Ex-parte Applicant's motion filed 2nd January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1828/eng@2020-01-24

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