The Court of Appeal has dismissed an appeal by former Director of Employment Samson Ogechi Nyaanga, finding that he failed to prove that he was appointed by the Ministry of Labor and Social Protection on permanent and pensionable terms.
A bench comprising Justices Daniel Musinga, Mumbi Ngugi and G. V. Odunga upheld the decision of the Employment and Labour Relations Court, which had rejected Nyaanga’s claim that his employment terms were unlawfully altered from permanent and pensionable employment to a renewable three-year contract.
The dispute arose after the Public Service Commission and the Ministry informed Nyaanga that his appointment to the position of Director of Employment was for a three-year renewable term, contrary to his belief that he had secured permanent and pensionable employment. Nyaanga had argued that he was recruited in 2015 through a competitive process and appointed on permanent and pensionable terms. He relied on employment records, payroll documents and pay slips showing the term “permt”, as well as a retirement date indicated as March 13, 2026, claiming these demonstrated that he was serving under permanent terms.
He further argued that the government had unlawfully changed his employment terms without consultation or consent, violating his rights under employment law and constitutional protections on fair administrative action.
However, the Ministry and the Public Service Commission maintained that Nyaanga had always been appointed on a three-year renewable contract, and that the payroll classification reflecting permanent and pensionable status was an administrative error that was later corrected.
The respondents told the court that Nyaanga’s appointment documents did not expressly state that his position was permanent and pensionable. They added that he remained a permanent employee of the Kenya Agricultural and Livestock Research Organisation (KALRO), where he had been granted leave of absence while serving at the Ministry.
In its judgment, the Court of Appeal noted that the respondents had failed to clearly communicate the tenure of Nyaanga’s appointment at the time of recruitment, observing that employers are required to provide written employment particulars, including the duration of fixed-term contracts. The court, however, held that the failure to specify the tenure did not automatically mean that Nyaanga had been appointed permanently.
“Silence as to tenure does not, without more, amount to proof of permanent and pensionable appointment,” the judges ruled.
The appellate court found that while payroll records and payslips indicated permanent and pensionable status, they could not override official appointment documents that did not specify the nature of employment. The judges also dismissed Nyaanga’s argument that the payroll records created a legitimate expectation of permanent employment, stating that pay slips primarily serve as evidence of payment and payroll administration.
“Such expectation must rest upon a clear and unequivocal representation,” the court held.
The court further found that Nyaanga remained an employee of KALRO during his service at the Ministry because he had proceeded on leave of absence and there was no evidence that his pensionable service had been formally transferred.
On claims that the change in employment terms was driven by malice or linked to disciplinary proceedings, the judges ruled that Nyaanga failed to provide evidence proving improper motives.
“Allegations of malice must be established by evidence,” the court stated, adding that accusations of bias or bad faith cannot be sustained on assertions alone.
The Court also noted that although concerns could be raised over the delay in communicating the clarification of Nyaanga’s employment terms, he had pursued internal mechanisms through the Public Service Commission, which considered his complaints.
The court consequently dismissed the appeal and upheld the earlier decision rejecting Nyaanga’s claim.
