Nyaanga v Cabinet Secretary, Ministry of Labour & Social Protection & 2 others (Civil Appeal E033 of 2020) [2026] KECA 1107 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that payslips and silent appointment letters do not prove permanent 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 appellant was appointed on permanent and pensionable terms or on a three-year renewable contract
- 2.Whether the respondents unlawfully altered the appellant's terms of service
- 3.Whether the respondents' conduct created a legitimate expectation upon the appellant that his appointment was permanent and pensionable
- 4.Whether the trial court erred in finding that the appellant remained a permanent and pensionable employee of KALRO and could not therefore concurrently hold another pensionable appointment
- 5.Whether the appellant established malice, denial of fair hearing or unfair administrative action
Key legal issues
#Whether the appellant was appointed on permanent and pensionable terms or on a three-year renewable contract
The appellant failed to discharge the burden of establishing appointment on permanent and pensionable terms; the appointment documents were silent on tenure and administrative payroll records were insufficient.
The appointment letters and advertisement were silent as to tenure. Although sections 9 and 10 of the Employment Act require written particulars and section 10(7) shifts the burden to the employer, that shift is evidentiary only and does not create substantive terms. Payroll notations such as 'permt' are administrative records, not communications of tenure, and the appellant himself acknowledged the advertisement did not specify terms.
Whether the respondents' conduct created a legitimate expectation of permanent and pensionable appointment
No legitimate expectation arose; payslips cannot found such a claim and any expectation was displaced by the PSC's clarification of 2nd November 2016.
Legitimate expectation requires a clear, unambiguous and unequivocal representation plus detrimental reliance. The appointment documents were silent on tenure; payslips are merely evidence of payroll administration. The PSC's letter of 2nd November 2016 clarifying a three-year renewable contract displaced any expectation that may have arisen from the payroll records.
Whether the appellant could concurrently hold permanent and pensionable appointments in two government institutions
The appellant's permanent and pensionable status remained with KALRO; no formal transfer of service to the Ministry was completed.
The evidence showed the appellant remained a substantive KALRO employee on permanent and pensionable terms and went to the Ministry on leave of absence, later resumed duty at KALRO, and the material did not demonstrate completion of any formal transfer process under the Code of Regulations.
Whether the appellant established malice, denial of fair hearing or unfair administrative action
No; malice must be proved by evidence and the record did not connect the disciplinary proceedings with the clarification of terms; the appellant's internal appeals were considered.
Allegations of malice require strict proof; the clarification letter made no reference to the interdiction. Although the delay in communicating the clarification raised procedural propriety questions, the appellant pursued internal appeals which were considered, and Article 47 concerns did not displace the finding that no permanent and pensionable terms or unlawful variation were established.
Legal principles established
#- A payslip, being evidence of payroll administration and remuneration, cannot of itself communicate terms of employment or found a claim of legitimate expectation regarding tenure.
- Silence as to tenure in appointment documentation does not, without more, amount to proof of permanent and pensionable appointment.
- Section 10(7) of the Employment Act shifts the evidentiary burden to the employer where prescribed particulars are lacking, but does not create substantive terms of employment where none are otherwise proved.
- An officer cannot simultaneously serve on permanent and pensionable terms in two separate government institutions; a claimant who retained permanent and pensionable status at another institution and never completed a formal transfer of service cannot claim that status in the second institution.
- Allegations of malice and bias must be established by evidence and cannot rest on mere assertions.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Judicial Review Application No. 38 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164 of the Constitution (this being a first appeal proceeds by way of rehearing); the judgment does not cite a specific appellate provision.
Relief refused
#Setting aside the judgment of the ELRC and restoring the appellant to permanent and pensionable terms
The appellant failed to establish appointment on permanent and pensionable terms, unlawful variation, legitimate expectation, or malice/unfair administrative action
Costs of the appeal
Given the factual circumstances and the public employment context
Costs
Each party shall bear its own costs of the appeal.
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.
Accordingly, this appeal is unmerited and is hereby dismissed in its entirety. Given the factual circumstances surrounding the dispute and the public employment context in which it arose, each party shall bear its own costs of the appeal.
Silence as to tenure does not, without more, amount to proof of permanent and pensionable appointment.
a payslip, being evidence of payroll administration and remuneration, cannot without more communicate terms of employment or create enforceable expectations regarding tenure.
Section 10(7) shifts the evidentiary burden to the employer where prescribed particulars are lacking; it does not operate to create substantive terms of employment where none are otherwise proved.
it is one thing to allege facts and another to establish the facts. The perception of bias can only be based on established facts.
A first appeal proceeds by way of a rehearing, and the duty of this Court is to reconsider the evidence on record, evaluate it independently, and draw its own conclusions.
Issues in the judgment
#The judgment gives inconsistent dates for the appellant's letter acknowledging that the advertisement did not specify terms of appointment - 18th October 2017 in the respondents' submissions and 18th December 2017 in the court's own analysis.
The judgment does not state the case number, the parties' names, or a neutral citation for this appeal itself; it is identified only by reference to the decision appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaanga v Cabinet Secretary, Ministry of Labour & Social Protection & 2 others (Civil Appeal E033 of 2020) [2026] KECA 1107 (KLR)", Case Analysis (2026). Not specified in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1107/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.