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Court of AppealDismissedNot expressly numbered in the extract (appeal from Nakuru ELRC Cause No. 260 of 2016)

Judicial Service Commission v Mayieka & 22 others (Civil Appeal 58 of 2019) [2025] KECA 1220 (KLR)

Court of Appeal of Kenya
11 July 2025
11,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that employers cannot cut your salary or allowances without written notice of the change.

What this practically means

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Executive summary

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This is a first appeal by the Judicial Service Commission against the decision of Mbaaru, J in the Employment and Labour Relations Court at Nakuru (Cause No. 260 of 2016), delivered on 17th January 2019, together with a cross-appeal by 23 former legal researchers. The trial court had found the 1st to 21st respondents' 2012 contracts open ended, held that the appellant unilaterally reduced the responsibility allowance and withheld the risk allowance contrary to section 13 of the Employment Act, awarded the withheld dues to the 1st to 21st petitioners, and dismissed the petitions of the 22nd and 23rd petitioners on fixed two-year contracts, with each party bearing its own costs. Hearing the matter as a first appellate court, and rehearing the evidence subject to the usual deference on findings of fact, the Court of Appeal affirmed. It held that the 2012 contracts were open ended, that the 2016 'Law Clerk' letters were a continuation rather than new and distinct contracts, and that their unilateral issuance without written notice breached section 13 of the Employment Act, violating Articles 27(1), 41 and 47 and the doctrine of legitimate expectation. It approved the principle that continued performance after a unilateral variation does not amount to acceptance where objection was signalled. The dismissal of the 22nd and 23rd respondents' petition was upheld because their express two-year contracts created no legitimate expectation of renewal. General damages were refused because the relief was never expressly pleaded and a declaration suffices as vindication. Both the appeal and the cross-appeal were dismissed, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the initial contracts of the 1st to 21st respondents dated 13th June 2012 were open ended or fixed term
  2. 2.Whether the appellant unilaterally and unfairly varied the contractual terms (withdrawal of risk allowance and reduction of responsibility allowance)
  3. 3.Whether the petition by the 22nd and 23rd respondents was merited
  4. 4.Whether the appellant violated the respondents' constitutional rights under Articles 27(1), 41 and 47 as well as the doctrine of legitimate expectation
  5. 5.Whether the respondents were entitled to compensation by award of general damages

Key legal issues

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01

Whether the 1st to 21st respondents' initial contracts were open ended

Holding

The contracts of 13th June 2012 were open ended because they had no contractual period and did not state permanent and pensionable terms

Reasoning

The court examined the offer letters and found they specified neither a duration nor permanent and pensionable status. By contrast, the 2014 contracts of the 22nd and 23rd respondents expressly ran for two years and were therefore fixed term.

p. 12
02

Whether the appellant unilaterally and unfairly varied the contractual terms

Holding

The 2016 letters were a continuation of the original contracts, not new and distinct contracts, and their issuance without written notice of changes breached section 13 of the Employment Act

Reasoning

Interpreting the 2016 letters in their ordinary meaning, the court held the appellant intended to amend the pre-existing terms. The risk allowance was withdrawn and the responsibility allowance reduced without the written statement of change required by section 13. The non-payment of the risk allowance could not be excused by the HR policy organogram; the appellant was bound by its contractual bargain.

p. 20
03

Whether the 22nd and 23rd respondents' petition was merited

Holding

The trial court was correct to dismiss it; their express two-year fixed-term contracts gave rise to no legitimate expectation of renewal

Reasoning

Unlike their counterparts, the 22nd and 23rd respondents' 2014 contracts clearly stated a two-year duration with no promise of deliberation on longer-term contracts. Accordingly no legitimate expectation of automatic renewal arose, and the cross-appeal on this ground failed.

p. 21
04

Whether Articles 27(1), 41 and 47 and the doctrine of legitimate expectation were violated

Holding

Yes, as regards the 1st to 21st respondents: the unilateral reduction and withdrawal of allowances infringed equality, fair labour practices and fair administrative action, and offended legitimate expectation

Reasoning

Failure to confine itself to section 13 of the Employment Act violated fair labour practices; ambushing employees with unfavourable amended terms contravened Article 47. By conduct (enhancing the responsibility allowance as an ex gratia payment), the appellant fostered a legitimate expectation of positive progression rather than reduction.

p. 21
05

Whether general damages were available

Holding

No; the relief was not pleaded and a declaration suffices as vindication

Reasoning

The petition never expressly sought general damages; the omnibus prayer cannot ground a substantive relief. Moreover, not every constitutional violation attracts damages; here a declaratory order vindicates the right, following the Supreme Court in CMM v Standard Group.

p. 24

Legal principles established

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  • An employer must, under section 13 of the Employment Act, give the employee a written statement of any change to the particulars of the contract; failure to do so renders any withholding or reduction of contractual benefits due and owing
  • Parties are bound by their contractual terms, which cannot be varied unilaterally, and an employer cannot escape a bad bargain by pointing to an internal policy or organogram
  • An employee's continued performance after a unilateral variation does not amount to acceptance of the variation where the employee has signalled objection and the employer does not end the contract
  • An omnibus prayer for 'any other or further relief' cannot be the basis for granting a substantive relief such as general damages that was not expressly pleaded
  • An award of general damages for constitutional violations is not an automatic relief; a declaration may suffice as vindication

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The cross-appeal is dismissed
  3. 3.Each party shall bear its own costs of the appeal and the cross-appeal

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nakuru
Cause No. 260 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal against the decision of the Employment and Labour Relations Court (the judgment describes itself as 'This is a first appeal'); the precise statutory provision is not cited in the extract.

Relief refused

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General damages for violation of constitutional rights (sought by respondents in cross-appeal)

The specific relief was never pleaded; an omnibus prayer cannot support a substantive relief such as general damages, and the violation was sufficiently vindicated by a declaratory order

p. 23

Retention in service under the terms subsisting as at 30th June 2016 (22nd and 23rd respondents)

Their 2014 contracts were express two-year fixed-term contracts creating no legitimate expectation of automatic renewal

p. 21

Costs

Each party shall bear its own costs of the appeal and the cross-appeal.

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.

The upshot of our above analysis is that the appeal herein lacks merit and we dismiss it. Turning to the cross appeal, we find that the same similarly lacks merit. As regards costs, we order that each party shall bear its own costs of the appeal and the cross appeal.
p. 24Disposition and costs
It is trite law that parties are bound by their contractual terms and cannot be varied unilaterally.
p. 20Contractual variation
In our view, the appellant unilaterally varied the terms of the contract without informing the respondents within the parameters of section 13 of the Employment Act.
p. 20Unilateral variation and statutory notice
We find that the contracts entered into by the 1st to 21st respondents were open ended.
Character of initial contracts
An omnibus prayer cannot salvage a party that never sought a particular relief.
p. 23Omnibus prayers and reliefs
this Court is also alive to the fact that not all constitutional violations necessitate an award of general damages. It is not an automatic relief.
p. 23Remedies for constitutional violations

Issues in the judgment

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material

The text contains pervasive OCR corruption affecting both quotations and the court's own analysis, e.g. 'ofier' for 'offer', 'efiect' for 'effect', and garbled passages that distort meaning

minor

Internal inconsistency in the dates of the addendum letter: the trial court's judgment quotes a letter dated '30th January, 2013' while the Court of Appeal and parties refer to it as dated 30th January 2014

minor

The extract does not state the appeal file number, neutral citation or the coram beyond the signature block, and the appellant is described as 'a creature of statute' though established under the Constitution

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, "Judicial Service Commission v Mayieka & 22 others (Civil Appeal 58 of 2019) [2025] KECA 1220 (KLR)", Case Analysis (2025). Not expressly numbered in the extract (appeal from Nakuru ELRC Cause No. 260 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1220/eng@2025-07-11

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