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Court of AppealDismissedCivil Appeal No. 98 of 2011

Lawrence Adiyo v Kenya Revenue Authority

Court of Appeal
16 February 2018
5,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that a written employment contract governs your pay and benefits, and retirees were excluded from KRA's salary harmonization scheme.

What this practically means

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Executive summary

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The appellant, a former Kenya Revenue Authority employee seconded from the Ministry of Finance in 1995, claimed underpayment of salary and benefits on the basis that he was wrongly placed on the lower of the Authority's two salary scales instead of the executive scale, and sought Kshs. 5,529,594. The High Court (Mwera, J.) dismissed his suit, finding that a two tier structure existed but that his contract placed him in the ordinary scale, that there was no discrimination, and that the 2002-2005 salary harmonization did not benefit him as he had retired in December 2000. On appeal, the Court of Appeal affirmed. It held that a written contract came into existence upon acceptance of the 1996 offer of appointment, and that the writing governed the parties' relations. The two tier structure was lawful, the Board being empowered by section 13(4) of the Kenya Revenue Authority Act to determine terms and conditions of employees. The appellant's placement in the lower scale accorded with the specified criteria, as he was a seconded revenue staff member without a full CPA (K) certificate, and his terms could only change by express variation. The harmonization circulars were limited to current employees on the payroll as at 30th January 2002; retirees were intentionally excluded, consistent with the Board's mandate extending only to persons employed by the Authority. The court distinguished Simon P. Kamau v Teachers Service Commission, where the agreement expressly covered retirees. The appellant's claim that he was barred from calling witnesses failed, and his abandoned discrimination claim could not be revived on appeal. The appeal was dismissed with each party bearing its own costs, the appellant being a retired senior citizen.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the trial court did not allow the appellant to call witnesses
  2. 2.whether the appellant entered into an employment contract with the respondent
  3. 3.whether the respondent maintained a two tier employment structure, and if so, whether it was lawful
  4. 4.whether the appellant's contract entitled him to earn a lower scale salary or an executive salary scale
  5. 5.whether the appellant was entitled to the underpayment claimed as a result of the salary harmonization process

Key legal issues

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01

Whether the appellant was barred from calling witnesses

Holding

The ground fails; the appellant was given the opportunity to obtain witness summons and voluntarily closed his case after two witnesses testified

Reasoning

Though the appellant intended to call nine witnesses, he called only two. He was provided an opportunity to obtain witness summons for all potential witnesses but failed to do so, and nothing in the record showed his witnesses were barred from testifying.

p. 4
02

Whether an employment contract existed

Holding

A written contract came into existence upon the appellant's acceptance of the offer of appointment of 23rd September 1996, which set out the terms of the parties' relations

Reasoning

The letter of appointment specified the position, job group M, the salary scale and entry point. The appellant confirmed acceptance, so a written contract governed the relations, and the writing, not any alleged intention, governs.

p. 4
03

Whether the two tier salary structure was lawful

Holding

The two tier structure was lawful; the Board was empowered under section 13(4) of the Kenya Revenue Authority Act to determine terms and conditions of all persons employed, including salaries

Reasoning

Section 13(4) empowered the Board to determine terms and conditions of employment, which include salaries, allowances and benefits. If the Board considered it efficacious to maintain a two tier structure, it was within its mandate provided the decision was in the best interest of the Authority and employees received their lawful dues.

p. 5
04

Whether the appellant should have been on the executive salary scale

Holding

The appellant's placement in the lower scale was proper; his secondment and qualifications required assignment to the lower scale, and his terms remained as specified in the initial contract unless expressly varied

Reasoning

The criteria for placement in each tier were clearly specified: the executive scale comprised professionals recruited from the private sector and other government bodies, while the ordinary scale included all seconded revenue staff. The appellant was a secondee without a full CPA (K) certificate, and his contract assigned him to job group M.

p. 5
05

Whether the appellant was entitled to benefit from the salary harmonization process

Holding

No; the harmonization circulars were limited to current employees on the payroll as at 30th January 2002, and retirees were intentionally excluded, consistent with the Board's mandate being limited to persons employed by the Authority

Reasoning

The circulars show the harmonization was implemented in phases and targeted at 'affected staff', limited to current employees on the payroll. By the time the scheme came into operation the appellant had already retired, and unlike P. Kamau, the scheme did not expressly extend benefits to retirees.

p. 6

Legal principles established

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  • On a first appeal the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
  • Where there is a written contract of employment reduced into writing, it is the writing which governs the parties' relations
  • A point abandoned in the trial court cannot be raised for the first time on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
William Ouko
OukoJA
Currently serving
majority
majority
On appeal from
High Court at Nairobi
HCCC 825 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (the judgment does not cite a specific provision)

Relief refused

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Claim for underpayment of salary, severance package and salary in lieu of notice (Kshs. 5,529,594)

Appellant's terms were fixed by the 1996 contract; he had retired before the harmonization scheme and retirees were excluded from it

p. 6

Re-raised claim that the two tier salary structure was discriminatory and unconstitutional

The prayer was abandoned in the trial court and cannot be raised on appeal

p. 5

Costs

Each party to bear its own costs (the appellant being a retired senior citizen)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have said enough to show that the appeal is without merit, and we order that the same be and is hereby dismissed. The appellant being a retired senior citizen, we order each party to bear its own costs.
p. 6Final orders - dismissal and costs
It is well settled that where there is a written contract of employment, as there was here, and the parties have reduced it into writing, it is the writing which governs their relations. It is not permissible to say they intended something different.
p. 4Written employment contract governs the parties
having abandoned the issue in the trial court, it cannot be raised at this stage of the proceedings, and we see no reason to address it.
p. 5Abandoned issues cannot be raised on appeal
it was limited in application to the respondent’s current employees who existed on the payroll as at the date of the circular, that being 30th January 2002.
p. 6Harmonization scheme excluded retirees
On a first appeal from the High Court, the Court of Appeal shall reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has never seen or heard the witnesses and should make due allowance in that respect.
p. 3Duty of a first appellate court

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, "Lawrence Adiyo v Kenya Revenue Authority", Case Analysis (2018). Civil Appeal No. 98 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/837/eng@2018-02-16

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