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ELRCDismissedNot stated in the judgment· [2025] KEELRC 914 (KLR)

Mohamed v State Corporation Advisory Committee & 2 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E079 of 2024) [2025] KEELRC 914 (KLR)

Employment and Labour Relations Court
20 March 2025
MNMatheus Nduma
3,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a former Utalii College CEO's claim for unpaid salary, ruling that a promised raise requiring outside approval was never binding.

What this practically means

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Executive summary

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The Petitioner, appointed Principal and CEO of Kenya Utalii College with effect from 16/1/2017, sued alleging that although the College Council negotiated and confirmed a gross salary of Kshs. 720,000.00, subject to approval by the parent Ministry and SCAC, he was paid only Kshs. 370,000.00 throughout his contract because the negotiated salary was never approved. He sought declarations of violations of Articles 41, 35 and 47, mandamus, specific performance, amendment of his contract and compensation of Kshs. 23,727,272. The Respondents countered that the salary fell outside the applicable SRC-approved band, that only SRC could approve a review and had declined, and that the petition lacked the precision required by Anarita Karimi Njeru and failed for want of evidence. The court framed four issues, including whether the doctrine of avoidance applied. It held that the dispute turned on a pure interpretation of the employment contract: clause 9 promised a salary raise contingent on approval by parties outside the contract, neither the Ministry nor SCAC had lawful mandate to approve it, and SRC - the only organ with such mandate - was not even named in the contract and declined approval. The 2nd Respondent had made a hollow undertaking, and the Petitioner erred in accepting without due diligence. No constitutional violation or discrimination under section 5(5) of the Employment Act was proved. Applying the doctrine of avoidance, the court dismissed the petition in its entirety with no order as to costs.

Key legal issues

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01

Doctrine of avoidance - whether an employment contract dispute may be dressed as a constitutional petition

Holding

The dispute was a pure contract interpretation matter and should not have been elevated to a constitutional petition

Reasoning

The court held that resolution of the dispute depended on construing the letter of appointment and clause 9 of the employment contract. Although SRC, a constitutional organ, was relevant to salary approval, that fact alone did not warrant a constitutional petition. Constitutional petitions should not be used where germane matters become remote and the real issues are contractual.

p. 6
02

Binding effect of clause 9 promising a salary raise subject to third-party approval

Holding

Clause 9 was not binding because the 2nd Respondent undertook to secure approval it had no lawful ability to obtain, and SRC (the approving organ) was not even named in the contract

Reasoning

The court found the Ministry of Tourism and SCAC lacked lawful mandate to approve a salary beyond the approved structure; only SRC could, and it declined. The 2nd Respondent made a hollow undertaking, and the Petitioner erred in accepting the offer without due diligence. Performance depended on parties outside the contract.

p. 6
03

Proof of constitutional violations under Articles 35, 41 and 47 and section 5(5) of the Employment Act

Holding

No violation was proved; no discrimination was established under section 5(5) of the Employment Act

Reasoning

The Petitioner bore the evidential burden under sections 107 and 108 of the Evidence Act and failed to discharge it. He did not prove he was unfairly induced into the contract, and the terms were clear on what the employer could lawfully provide. Success in a constitutional petition is evidence based.

p. 7

Legal principles established

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  • A contractual promise in an employment contract whose performance depends on a third party with lawful mandate (here SRC) that the contracting employer lacked capacity to secure is not binding and cannot ground a constitutional claim
  • Disputes resting on interpretation of an employment contract should be brought under the relevant legislation rather than elevated to constitutional petitions (doctrine of avoidance)
  • A litigant who fails to discharge the evidential burden risks losing the case; the evidential burden shifts between parties throughout trial

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 41(2)(a)(b), 35(1)(b), 47, 230(5)(b)(c), 23(1) and (3), 233
  • Access to Information ActSection 4(1)
  • Employment Act, 2007Section 5(5)
  • Fair Administrative Action Act No. 4 of 2015Sections 4 and 6
  • Salaries and Remuneration Commission ActSection 12
  • Tourism ActSection 25(1)
  • Evidence ActSections 107 and 108
  • Universal Declaration of Human RightsArticle 23(1) and (3)
  • International Convention on Economic, Cultural and Social RightsArticle 7

Cases cited (3)

  • Anarita Karimi Njeru versus The Republic
    [1976 - 1980] KLR 1272
  • St. Patrick Hill School Ltd versus NHIF
    [2019] eKLR
  • Pamela Obura versus Austin Recovery Agency & Another
    Nairobi Civil Appeal No. 452 of 2018
Jurisdiction invoked
Constitution of Kenya 2010, Articles 41, 35, 47 and 230 ( invoked in the petition); employment and labour relations jurisdiction of the ELRC

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, "Mohamed v State Corporation Advisory Committee & 2 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E079 of 2024) [2025] KEELRC 914 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/914/eng@2025-03-20

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