Munyoto v County Government of Kitui & another (Constitutional Petition E005 of 2025) [2025] KEELRC 3707 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a Kitui County worker's petition, ruling his signed fixed-term contract—not the job advert—governed his employment terms.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition was merited
- 2.Whether the petitioner proved violation of his rights under Articles 27, 41 and 43 of the Constitution by unilateral change of terms from permanent and pensionable to a fixed-term contract
- 3.Whether the petitioner was discriminated against on account of his age compared to his colleagues appointed on permanent and pensionable terms
- 4.Whether the petitioner had a legitimate expectation of permanent and pensionable terms based on the advertisement and alleged promises
Key legal issues
#Unilateral variation of terms of employment
There was no variation; the fixed-term contract was the offer which the petitioner accepted, and acceptance established the employer-employee relationship on those terms even if they contradicted the advertisement
The court treated the advertisement as an invitation to treat and the contract as the offer. The petitioner signed the offer (albeit under protest) and worked for five years, then resigned from a permanent TSC position. Section 10(5) of the Employment Act allows variation only of existing terms; here a new contract was formed, so the terms could not be said to have been unilaterally changed.
Discrimination on account of age
Not proved; the petitioner, being over 50, was statutorily ineligible for permanent and pensionable terms under the Pensions Act, and no evidence of comparators was adduced
The respondent explained the differential treatment by reference to section 6(1)(a)(iv) of the Pensions Act, which bars pensions for officers retiring on or after age 50 in other cases. The petitioner did not deny being over 50. The appointments of the four colleagues said to have been given permanent terms were never produced in evidence, so discrimination could not be established.
Legitimate expectation of permanent and pensionable terms
Not established; there was no express, clear and unambiguous promise by the respondent to place the petitioner on permanent terms
The court applied the legitimate expectation principles from Communications Commission of Kenya v Royal Media Services (as summarized by the Court of Appeal and upheld by the Supreme Court in Muthuuri v Attorney General). The alleged promises by the Chairperson and CEO were not proved, and in any event no expectation could run against the clear provisions of the Pensions Act.
Legal principles established
#- Where a job advertisement states terms that differ from the written offer, the signed contract is the exclusive proof of the terms of employment; acceptance of the offer establishes the employment relationship on the contract's terms.
- A public officer over 50 years of age is not eligible for permanent and pensionable employment under section 6(1) of the Pensions Act.
- A legitimate expectation requires an express, clear and unambiguous promise by a public authority, reasonableness, competence and lawfulness of the representation, and cannot run against clear provisions of the law or Constitution.
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.Each party to bear own costs
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya (employment and labour relations jurisdiction); petition alleging violations of Articles 27, 41 and 43
Relief refused
#Declaration of violation of Articles 27 and 41 (unilateral change of terms)
No variation of terms occurred; the petitioner accepted the fixed-term contract which was the offer, and the terms were lawful under the Pensions Act
Declaration of discrimination
Not proved for lack of evidence; the contracts and ages of the alleged comparators were not placed before the court
Reinstatement on permanent and pensionable terms
The contract expired by effluxion of time and no fresh agreement exists
Withheld salary and allowances from 2nd August 2023
Contract expired, no work was done and no fresh agreement exists
Damages
Legitimate expectation and promises were not proved
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition is dismissed for lack of merit. Each party to bear own costs.
The court is bound to rely on the written contract as the exclusive proof of the terms of employment without evidence to the contrary.
The issue of discrimination was not proved for lack of evidence.
The petitioner was not eligible to be employed as permanent and pensionable under the Pensions Act section 6(1) above.
Issues in the judgment
#The judgment refers to the petitioner as 'the appellant' in a passage summarizing the Court of Appeal decision on legitimate expectation, though this is a first-instance petition
Inconsistent citation of the Pensions Act provision - the reply refers to section 6(1)(a)(iv) while the court's discussion quotes 'section 6(1)(a(vi)'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyoto v County Government of Kitui & another (Constitutional Petition E005 of 2025) [2025] KEELRC 3707 (KLR)", Case Analysis (2025). Petition dated 12th June 2025 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3707/eng@2025-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.