https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1107

Nyaanga v Cabinet Secretary, Ministry of Labour & Social Protection & 2 others (Civil Appeal E033 of 2020) [2026] KECA 1107 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1107 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E033 of 2020 DK Musinga, GV Odunga & M Ngugi, JJA June 12, 2026 Between Samson Ogechi Nyaanga Appellant and The cabinet Secretary, Ministry of Labour & Social Protection 1st Respondent Public Service Commission 2nd Respondent The Hon Attorney General 3rd Respondent (Being an appeal from the judgment and decree of the Employment and Labour Relations Court of Kenya at Nairobi (M. Onyango, J.) delivered on 24th January 2020 in ELRC Judicial Review Application No. 38 of 2018) Judgment 1.This appeal arises from the judgment of the Employment and Labour Relations Court (M. Onyango, J.) delivered on 24th January 2020 in Judicial Review Application No. 38 of 2018, wherein the appellant’s judicial review application was dismissed. 2.The dispute that gave rise to this appeal arose from the appellant’s contention that his terms of employment were unlawfully altered from permanent and pensionable, to a renewable three-year contractual engagement. In his pleadings before the trial court, the appellant contended that in 2015, the Public Service Commission advertised the position of Director of Employment on permanent and pensionable terms. He applied for the position, was competitively recruited, and was subsequently appointed as Director of Employment in the Ministry of Labour & Social Protection. He maintained that the advertisement, his appointment documentation, and his payslips demonstrated that he served on permanent and pensionable terms. The appellant particularly relied on the notation “permt” appearing in his pay slips, which he understood to denote “permanent and pensionable,” as well as the indication therein that his retirement date was in the year 2026. 3.The appellant further contended that he diligently served in the position until October 2016 when he was interdicted on allegations which he maintained were unfounded and from which he was later cleared. He asserted that during the interdiction process, the 1st and 2nd respondents unilaterally altered his terms of service from permanent and pensionable to a renewable three-year contract without consultation, notice, or his consent. According to the appellant, the respondents’ conduct, together with his employment records and payslips, created a legitimate expectation that he served on permanent and pensionable terms. He maintained that the impugned decision violated Articles 27, 41, 47, 232 and 236 of the Constitution, undermined his pension rights, and prejudiced his career progression and access to benefits ordinarily available to public officers serving on permanent and pensionable terms. 4.The appellant also asserted that the respondents disregarded the applicable legal and regulatory framework governing public service appointments. He maintained that no issue concerning his eligibility for permanent and pensionable appointment had been raised at the point of recruitment or appointment. In particular, he contended that there was no legal basis for denying him permanent and pensionable terms on account of age as the relevant framework only contemplated a minimum ten-year period of service before retirement. He further contended that the respondents’ reliance on his leave of absence from the Kenya Agricultural and Livestock Research Organization (KALRO) was an afterthought intended to justify an unlawful alteration of his terms of service. He additionally contended that despite pursuing internal review and appeal mechanisms, the respondents maintained the impugned decision. 5.The reliefs sought before the trial court included an order of certiorari to quash the decision of the 1st and 2nd respondents dated 2nd November 2016 altering the appellant’s terms of employment; an order of prohibition restraining the respondents from implementing the impugned decision; and an order of mandamus compelling the respondents to retain, reinstate, and/or restore the appellant to the position he held prior to the impugned alteration of terms. He also sought any further relief the court deemed appropriate under Article 23(3) of the Constitution. 6.The 1st respondent, through a replying affidavit sworn by Margaret Muia, the Director of Human Resource Management in the Ministry of Labour and Social Protection, opposed the application and maintained that the appellant had not been appointed on permanent and pensionable terms. The 1st respondent acknowledged that the Public Service Commission had advertised the position of Director of Employment, and that the appellant was competitively recruited and appointed to the position. It was, however, contended that although initially the appellant’s pay slip showed that his employment status was permanent and pensionable, that designation was erroneous. According to the 1st respondent, the Public Service Commission subsequently clarified through correspondence dated 2nd November 2016 and 8th February 2017 that the appellant’s appointment was, in fact, on a renewable three-year contract subject to satisfactory performance. 7.The 1st respondent further averred that the appellant had been informed of the review of his terms of service and had lodged appeals before the Public Service Commission, which appeals were considered, thereby according him an opportunity to challenge the decision. According to the 1st respondent, the appellant was over 48 years of age at the time of appointment, and was therefore ineligible for appointment on permanent and pensionable terms under the applicable public service framework. It was also contended that the appellant remained an employee of KALRO, where he was a member of the staff provident fund and group life insurance scheme, and that he had merely obtained leave of absence rather than transferring his service to the Ministry. The 1st respondent further maintained that the institutions in which the appellant had previously served had not been declared pensionable public offices and that, consequently, there existed no basis for transfer of pensionable service. 8.Additionally, the 1st respondent asserted that the appellant was aware that he was not eligible for appointment on permanent and pensionable terms, noting that he had requested and obtained a three-year leave of absence from KALRO, corresponding with the duration of his contract. It was further averred that by the time the proceedings were instituted, the appellant had already resumed duty at KALRO and had substantially served the contractual term. On that basis, the 1st respondent contended that the proceedings were misconceived, had been overtaken by events, and constituted an abuse of the court process. The 1st respondent also raised a procedural objection, contending that the claim offended Order 53 Rule 2 of the Civil Procedure Rules, since the impugned decision had been made in November 2016 whereas the proceedings were instituted outside the prescribed six-months’ period. Consequently, the 1st respondent urged the court to dismiss the application with costs. 9.The 2nd respondent, through a replying affidavit sworn by Simon K. Rotich, its Acting Secretary/CEO, opposed the application and maintained that the appellant had been appointed on a three-year renewable contract rather than on permanent and pensionable terms. The 2nd respondent acknowledged that it had invited applications for the position of Director of Employment in 2015, and averred that the advertisement contemplated appointment either on permanent and pensionable terms or on a three-year renewable contract. It was further averred that the appellant was shortlisted, interviewed, and appointed to the position and that although the appointment letter was silent on the terms of service, the 2nd respondent subsequently clarified that the appointment was on a three-year renewable contract, subject to satisfactory performance. 10.The 2nd respondent further averred that the appellant had obtained an initial two-year leave of absence from KALRO where he served on permanent and pensionable terms, and that the leave had subsequently been extended while he continued serving under contract with the Ministry. According to the 2nd respondent, the appellant had neither resigned from KALRO nor sought transfer of service to the Ministry. The 2nd respondent maintained that the appellant’s allegations that his terms had been altered from permanent and pensionable terms to contractual terms were unfounded since he remained a permanent and pensionable employee of KALRO while serving the Ministry under a renewable contract. 11.In a further affidavit, the 2nd respondent additionally averred that the appellant had not, as at 7th November 2018, made any attempt to transfer his service from KALRO to the civil service. It was further contended that the appellant’s leave of absence had been extended, and that his conduct, including his failure to resign from KALRO or seek transfer of service, demonstrated an intention to return to KALRO upon expiry of the contract. Consequently, the 2nd respondent urged the court to dismiss the application with costs. 12.The trial court rendered its decision on 24th January 2020. The court identified the central issue for determination as whether the appellant had been appointed on permanent and pensionable terms or on a renewable three-year contractual engagement, and consequently whether the impugned decision by the respondents unlawfully altered his terms of service. 13.In addressing that issue, the trial court considered the appellant’s appointment letter dated 23rd February 2016 together with the payslips relied upon by the appellant. The court observed that although the appellant’s payslips bore the abbreviation “permt” and reflected a retirement date of 13th March 2026, neither the advertisement nor the appointment letter expressly stated that the appointment was on permanent and pensionable terms. The court further considered the Public Service Commission’s correspondence dated 20th November 2017 clarifying that the appellant had been appointed on a renewable three-year contract subject to performance, and noted that the appellant’s subsequent appeals and requests for review before the Commission had been unsuccessful. 14.The trial court also considered the appellant’s contention that the respondents’ conduct and employment records gave rise to a legitimate expectation that he served on permanent and pensionable terms. The court however held that the appellant could not sustain a claim founded on legitimate expectation because there had been no express promise by the respondents that his appointment was on permanent and pensionable terms. In reaching that conclusion, the court relied on the decision of this Court in Justice Kalpana H. Rawal v Judicial Service Commission & 3 others [2016] eKLR, and held that a payslip could not communicate terms of employment or form the basis for legitimate expectation. 15.The trial court further considered the evidence relating to the appellant’s employment relationship with KALRO. The court noted that the appellant remained a permanent and pensionable employee of KALRO and had proceeded to the Ministry of Labour & Social Protection on leave of absence which had initially been granted for two years and subsequently extended for a further year at his request. The court additionally noted that the appellant had not applied for transfer of his pensionable service from KALRO to the Ministry of Labour. On that basis, the court held that the appellant could not simultaneously serve on permanent and pensionable terms in two separate government institutions, and that his permanent and pensionable service remained with KALRO. 16.Ultimately, the trial court found that the appellant had failed to establish that his terms of service had been unlawfully altered. Consequently, the court found no merit in the application and dismissed it with no order as to costs. 17.Being aggrieved and dissatisfied with the decision of the trial court, the appellant lodged this appeal. In his memorandum of appeal dated 22nd July 2020, he contends that the trial court erred in law and in fact by, inter alia, finding that his appointment to the position of Director of Employment was contractual rather than permanent and pensionable; failing to appreciate the operation and effect of the Public Service Commission’s delegated legislation, the applicable Public Service Regulations, and the Code of Regulations;and disregarding evidence relating to the restoration and reactivation of his payroll number, his payslips, retirement date, and other employment records which, according to him, demonstrated that he served on permanent and pensionable terms. 18.The appellant further faults the trial court for failing to find that the respondents unlawfully, arbitrarily, and unilaterally altered his terms of service from permanent and pensionable terms to contractual terms; disregarding material evidence concerning the respondents’ internal administrative processes and the handling of his appeals; and failing to appreciate that he was never accorded a hearing during the internal administrative process before the 2nd respondent. He additionally challenges the trial court’s finding that he was simultaneously serving on permanent and pensionable terms in two government institutions, and faults the court for holding that the applicable regulations did not entitle him to retain his payroll number. 19.The appellant also contends that the trial court erred in rejecting his claim founded on legitimate expectation and in failing to consider sections 10(5) and (7) of the Employment Act. He further contends that the trial court disregarded evidence suggesting that the respondents’ actions were actuated by ulterior motives intended to undermine his rights and employment status, and failed to appreciate that the parties mutually understood his appointment to be on permanent and pensionable terms, even after the respondents purported to convert it to contractual terms. Lastly, the appellant faults the trial court for treating the respondents’ decision dated 2nd November 2016 as a mere clarification rather than an unlawful alteration of his terms of service; failing to appreciate the implications of the impugned decision on his pension rights; validating a unilateral variation of contract without his consent; failing to recognize that the purported clarification letters introduced terms not communicated at the time of appointment; and failing to find that the respondents’ actions during the period of interdiction and integrity-related proceedings were unjustified and malicious. 20.At the hearing of this appeal, learned counsel Mr. Mureithi appeared for the appellant. There was no appearance for the respondents, despite service of the hearing notice. Counsel indicated that he would rely entirely on his client’s written submissions. 21.In the written submissions dated 22nd May 2021, the appellant contends that he was appointed on 16th December 2015 as Director of Employment and head of the National Employment Bureau on permanent and pensionable terms following a competitive recruitment process and a transfer of service from KALRO. He submits that after undertaking reforms within the department, certain officers became dissatisfied with his actions, leading to disciplinary proceedings and the subsequent unilateral alteration of his terms of service from permanent and pensionable employment to a three-year contract through a letter dated 2nd November 2016. He maintains that the change was arbitrary, unlawful and motivated by malice. 22.On whether or not the trial court erred in finding that the unilateral migration of the appellant’s terms of service from permanent and pensionable to a three-year contract was justified and lawful, the appellant contends that the respondents admitted that he initially served on permanent and pensionable terms until the Public Service Commission purportedly clarified his terms on 2nd November 2016. He maintains that the respondents neither consulted him nor notified him in writing within a reasonable period as required under section 10(5) of the Employment Act, Cap 226, noting that he only received communication of the alleged change on 20th November 2017, nearly two years later. 23.The appellant relies on the decision of this Court in Speaker of the County Assembly - Kisii County & 2 Others v James Omariba Nyaoga [2015] eKLR, which was cited by the court (M. Onyango, J.) in Alloice Ngereza & 3 Others v Speaker, Nyamira County Assembly & 3 Others, Petition No. 19 of 2015 (consolidated with Kisumu ELRC Cause No. 337 of 2015). In that case, this Court questioned why it had taken more than eight months to discover that the respondent’s appointment allegedly contravened the Constitution and the County Governments Act despite the relevant appointment documents having been available throughout. The appellant submits that the court (M. Onyango, J.) adopted and applied that reasoning in Alloice Ngereza (supra) to hold that such delay was unjustifiable. He therefore contends that the learned judge was inconsistent in the present matter in upholding the respondents’ conduct in communicating the purported variation of his terms of service almost two years after the alleged decision of 2nd November 2016. 24.On whether the trial court erred in upholding the defective process employed in migrating the appellant’s terms, particularly through the alleged unsigned clarification letter dated 8th February 2017, the appellant submits that the respondents’ own correspondence described the decision of 2nd November 2016 as a fresh appointment on a three-year contract and not a clarification. He further contends that the trial court improperly admitted into evidence an unsigned letter relied upon by the respondents. 25.As to whether the trial court erred in finding that the appellant’s original contract of appointment was not permanent and pensionable, the appellant submits that none of his offer and appointment letters made any reference to a three-year fixed-term contract or specified an end date to his employment. He relies on section B.8 of the Human Resource Policy and Procedure Manual for the Public Service (May 2016), which recognizes only two categories of appointment, namely, permanent and pensionable or contractual appointments. He further cites section E.10(4) of the Code of Regulations (2006), which requires an officer appointed on local agreement terms to be issued with Form GP 106. According to the appellant, no such form or written contract evidencing a contractual appointment was ever issued to him. 26.The appellant also invokes sections 9 and 10 of the Employment Act, particularly the requirement that an employer provide written particulars of employment, including the duration and end date where the employment is for a fixed term. He contends that the absence of any contractual documentation, fixed term, or end date in his appointment documents demonstrated that his appointment was for an indefinite period and therefore permanent and pensionable. He further contends that the trial court improperly shifted the burden of proof to him, despite the respondents’ failure to produce any written contract evidencing the alleged three-year appointment. 27.The appellant further submits that the documentary evidence on record consistently demonstrated that he served on permanent and pensionable terms. In this regard, he refers to the indent form recommending advertisement of the post on permanent and pensionable terms, the advertisement itself which did not indicate that the position was contractual, the payroll reactivation form identifying his category of engagement as permanent employment, and the continuation of his KALRO performance appraisal records upon his transfer to the Ministry. He also places reliance on his monthly payslips which consistently reflected his terms of service as permanent and pensionable and indicated a retirement date of 13th March 2026 upon attainment of the mandatory retirement age. According to the appellant, these records collectively demonstrated a continuous and consistent representation by the respondents that his appointment was permanent and pensionable. 28.In support of his argument on legitimate expectation, the appellant relies on Diana Kethi Kilonzo & Another v Independent Electoral & Boundaries Commission & 10 Others [2013] eKLR, where the Court stated that legitimate expectation may arise from a repeated or regular practice of a public body or official which an affected person could reasonably expect to continue. The appellant submits that the respondents, through official payroll records and payslips issued to him over an extended period, repeatedly affirmed that he was serving on permanent and pensionable terms. 29.On whether or not the trial court erred in finding that the appellant was concurrently employed in two government institutions, the appellant submits that he applied for the position of Director of Employment through the Director, KALRO, as required under sections E.6(1) and E.31(3) of the Code of Regulations (Revised 2006). He further contends that his appointment letter was transmitted through KALRO and that there was a clear arrangement between himself and the Ministry for the transfer of his services from KALRO to the Ministry of Labour upon assumption of office. According to the appellant, the respondents were therefore fully aware that his transition to the Ministry was intended to be a transfer of service rather than the creation of concurrent employment in two separate public institutions. 30.The appellant relies on sections E.14(6) and E.31(6) and (7) of the Code of Regulations (Revised 2006), which provide that an officer already serving on pensionable terms may transfer to the civil service without losing pensionable status and without being required to resign from the previous institution. He submits that the requirement to resign only applied to officers serving on non- pensionable terms. Since he was already serving on permanent and pensionable terms at KALRO, he contends that the trial court erred in concluding that he could not lawfully transition to the Ministry without first resigning from KALRO. 31.On whether or not the trial court erred in upholding the respondents’ contention that the appellant had not applied for transfer of service from KALRO, the appellant contends that the record contained correspondence and internal appeal documents confirming that he had indeed sought transfer of his pensionable service, which evidence the trial court failed to consider. 32.As regards the question whether or not the trial court erred in ignoring evidence of malice, misrepresentation of material facts, and denial of fair hearing, the appellant submits that the dispute arose after he insisted on adherence to integrity standards in the registration and regulation of employment agencies and bureaus, particularly concerning Muthuma International Agency Ltd. He contends that following those actions, the respondents embarked on a calculated course aimed at removing him from office, including the initiation of disciplinary proceedings based on what he describes as baseless allegations and the unilateral alteration of his terms of service from permanent and pensionable terms to a three- year contract. 33.The appellant further submits that the respondents misrepresented the nature of the dispute during the internal appeals process by portraying it as a mere translation of terms of service under section E.15 of the Code of Regulations, rather than an unlawful unilateral variation of his terms of service. He also contends that his internal appeals were dismissed without being furnished with reasons or accorded a fair opportunity to address the issues raised, contrary to the requirements of fair administrative action and fair hearing under Articles 47 and 50 of the Constitution. 34.On whether or not the trial court erred in holding that the appellant’s leave of absence was irregular, the appellant contends that the leave related to logistical arrangements concerning transfer of service to Jaramogi Oginga Odinga University of Science and Technology and had no connection with the respondents. He contends that the issue was irrelevant because the leave extension occurred after the respondents had already altered his terms of service. 35.Based on the foregoing, the appellant urges this Court to allow the appeal, set aside the judgment of the trial court and restore him to what he describes as his permanent and pensionable position. 36.On their part, the respondents vide written submissions dated 10th August 2021 contend from the onset that although the appellant was initially placed on the payroll as serving on permanent and pensionable terms upon reporting on duty on 16th December 2015, the Public Service Commission subsequently clarified through a letter dated 2nd November 2016 that the appointment was on a three-year renewable contract, subject to satisfactory performance. They further contend that the appellant was informed of the clarification and indeed lodged appeals before the Public Service Commission seeking review of the decision, thereby demonstrating that he had been accorded an opportunity to be heard. The respondents additionally maintain that the appellant was over 48 years old at the time of appointment and was therefore ineligible for appointment on permanent and pensionable terms. They also assert that the appellant remained an employee of KALRO on permanent and pensionable terms and had merely proceeded on leave of absence which was subsequently extended, such that he could not lawfully hold another permanent and pensionable appointment within government simultaneously. 37.On whether or not the appellant’s contract was unlawfully migrated from permanent and pensionable terms to a three-year contract, the respondents assert that the advertisement for the position, the Public Service Commission’s appointment letter dated 4th November 2015, the Ministry’s appointment letter dated 1st December 2015, and the subsequent confirmation letter dated 2nd February 2016 were all silent on the terms of employment. According to the respondents, the 1st respondent merely placed the appellant on the payroll as permanent and pensionable to facilitate assumption of office, but such placement did not amount to communication of terms by the appointing authority, namely the Public Service Commission. They further contend that the appellant himself admitted in a letter dated 18th October 2017 that the advertisement had not specified the terms of appointment. 38.In support of their position on admissions, the respondents rely on Martin Waweru Nguru v Attorney General [2019] eKLR, where the court held that an employee’s apology for being absent from work without permission amounted to an admission of the charges against him. Reliance is also placed on Teachers Service Commission v Sarah Nyanchama Ratemo, Civil Appeal No. 14 of 2014, where this Court held that the respondent’s admission during disciplinary proceedings confirmed desertion of duty. The respondents assert that the appellant’s own acknowledgment that the advertisement was silent on terms undermined his claim of permanent and pensionable appointment. 39.The respondents further submit that the trial court correctly held that a payslip could not, in itself, communicate or determine the terms of employment so as to found a claim for legitimate expectation. According to the respondents, the appellant merely derived his own expectations from the payroll records, despite the appointing authority never expressly communicating that the appointment was permanent and pensionable. They further seek to distinguish Alloice Ngereza & 3 Others v Speaker, Nyamira County Assembly & 3 Others (supra), relied upon by the appellant, contending that the factual circumstances in that case were materially different from those in the present appeal and that, in any event, each case must be determined on the basis of its own facts and merits. 40.On the complaint regarding the unsigned letter dated 8th February 2017, the respondents submit that the trial court did not base its determination on the contents of the said letter. According to the respondents, the letter merely communicated the Public Service Commission’s decision clarifying the appellant’s terms of service and did not itself constitute the impugned decision. They further contend that despite raising issue with the letter, the appellant neither challenged the substance of the communication contained therein nor sought to cross-examine its author before the trial court. The respondents therefore maintain that the appellant failed to demonstrate any prejudice or injustice occasioned by the production of the unsigned letter, and was merely relying on a procedural technicality which had no bearing on the ultimate determination of the dispute. 41.As regards the issue whether or not the appellant’s appointment was permanent and pensionable, the respondents reiterate that none of the appointment documents referred either to permanent and pensionable terms or to a three-year contract. They therefore submit that the appellant could not selectively rely on the absence of contractual terms while simultaneously asserting the existence of permanent and pensionable status. 42.On whether or not the trial court erred in finding that the appellant was concurrently employed in two government institutions, the respondents contend that the appellant remained an employee of KALRO on permanent and pensionable terms throughout the material period and had merely proceeded on leave of absence from that institution. They therefore contend that he could not simultaneously hold another permanent and pensionable appointment within government while still retaining his substantive appointment at KALRO. The respondents further maintain that KALRO had not been declared a public office under Regulation R42 of the Code of Regulations (Revised 2006) for purposes of transfer of service and pension and that, consequently, the appellant could not lawfully transfer his pensionable service from KALRO to the Ministry of Labour. According to the respondents, any transfer of service could only be effected through the Public Service Commission in accordance with the prescribed statutory procedure and not through personal arrangements, correspondence, or alleged verbal understandings with the Ministry. They therefore contend that the trial court was correct in holding that the appellant could not lawfully hold two concurrent permanent and pensionable appointments within government. 43.On the allegations of malice, bad faith, misrepresentation of material facts and denial of fair hearing, the respondents submit that the appellant’s interdiction on allegations of gross misconduct and negligence of duty was subsequently lifted and all withheld salary reinstated. They further contend that the Public Service Commission’s clarification of the appellant’s terms of service through the letter dated 2nd November 2016 was entirely separate from the disciplinary process and, notably, did not make any reference to the interdiction or disciplinary proceedings facing the appellant. According to the respondents, the appellant improperly sought to conflate the two distinct processes in order to support allegations of malice and bad faith. The respondents maintain that the allegations of malice, misrepresentation and unfair treatment were unsupported by evidence and were therefore properly rejected by the trial court. 44.In that regard, the respondents rely on the decision of this Court in Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR, where the Court emphasized that allegations of bias and malice must be strictly proved through evidence, and cannot rest on mere assertions or the seriousness of allegations. The respondents maintain that the appellant failed to discharge that evidentiary burden. 45.On whether or not the trial court held that the appellant’s leave of absence was irregular, the respondents contend that the learned judge made no such finding, but merely referred to correspondence from KALRO confirming that the appellant had taken leave of absence and later sought its extension before resuming duty at KALRO on 2nd January 2019. 46.The respondents further submit that the appellant’s three-year contract expired on 15th December 2018 through effluxion of time and that he neither applied for renewal nor otherwise communicated any willingness to continue serving in the position upon expiry of the term. They contend that upon expiry, the contractual relationship came to a natural end and no further rights or obligations accrued to the appellant. In support of this argument, the respondents rely on National Water Conservation & Pipeline Corporation v Jane Kanini Mwanza [2017] KECA 797 (KLR), where this Court held that a fixed-term contract terminates automatically on the stipulated end date unless renewed in accordance with its terms, and that courts cannot rewrite contracts freely entered into by parties. 47.The respondents also rely on Trocaire v Catherine Wambui Karuno [2018] eKLR, where this Court, citing British Broadcasting Corporation v Ioannou [1975] 2 All ER 999, held that a fixed-term contract binds parties only for the duration expressly stipulated therein. The Court further held that prior expressions or indications of possible renewal do not, without more, create a legitimate expectation that a contract will be extended beyond its expiry date. In that regard, the Court reiterated its earlier holding in Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR that fixed-term contracts carry no rights, obligations or expectations beyond the date of expiry. The respondents therefore contend that the appellant could not lawfully expect continuation in office after the expiry of the three-year term, particularly after the Public Service Commission had clarified the nature of his appointment and declined his appeals against that decision. 48.Lastly, the respondents contend that the dispute between the appellant and the respondents arose from an ordinary employer- employee relationship governed by private law, and that the appellant was therefore not entitled to the judicial review remedies of certiorari, mandamus and prohibition sought before the trial court. In support of that argument, they rely on Republic v Mwangi S. Kimenyi ex-parte Kenya Institute for Public Policy and Research Analysis (KIPPRA) [2013] eKLR, where this Court emphasized that judicial review remedies are discretionary in nature and generally unavailable in ordinary contractual employment disputes, particularly where the dispute arises purely from a master-servant relationship. This Court in that decision, while citing R v British Broadcasting Corporation Ex Parte Lavelle [1983] 1 WLR 1302 and Republic v Judicial Service Commission ex parte Stephen Pareno, HC Misc. Civil Application No. 1025 of 2003, observed that where an employment relationship has come to an end, private law remedies such as damages are ordinarily more efficacious than public law remedies. The respondents further note that the Court recognized that judicial review may only be available in exceptional circumstances, such as where the employment relationship has statutory underpinning or where there has been a gross violation of fundamental rights. 49.The respondents therefore contend that the appellant’s contract lacked statutory underpinning and had, in any event, expired by effluxion of time. The respondents further submit that the appellant had since resumed his substantive employment at KALRO following the expiry of his leave of absence, and that the position of Director of Employment had already been filled. According to the respondents, the parties had since separated, thereby rendering the judicial review remedies sought impractical, contrary to public policy, and incapable of enforcement within the ordinary master- servant relationship. The respondents consequently urge this Court to dismiss the appeal with costs and uphold the judgment of the trial court. 50.This being a first appeal, it is well settled that this Court is not bound to accept the findings of fact made by the trial court. 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. In doing so, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance for that limitation. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] EA 1. 51.We have considered the record of appeal, the impugned judgment, the grounds set out in the memorandum of appeal, the submissions by the parties and the applicable law. In our view, the appeal crystallizes around the following issues: whether the appellant was appointed on permanent and pensionable terms or on a three-year renewable contract; whether the respondents unlawfully altered the appellant’s terms of service; whether the respondents’ conduct created a legitimate expectation upon the appellant that his appointment was permanent and pensionable; 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; and finally, whether the appellant established malice, denial of fair hearing or unfair administrative action. 52.The first two issues, viz, whether the appellant was appointed on permanent and pensionable terms or on a three-year renewable contract and whether the respondents unlawfully altered the appellant’s terms of service are, in our view, closely intertwined.The determination of the former bears directly upon the resolution of the latter. We shall therefore consider them together. 53.The factual background is largely undisputed. The appellant was appointed as Director of Employment following a competitive recruitment process and reported to duty on 16th December 2015. Although his appointment letter communicated his appointment to the office, it did not expressly state whether the appointment was on permanent and pensionable terms or on contractual terms. The appellant nevertheless places reliance on payroll records, payslips bearing the abbreviation “permt”, a retirement date of 13th March 2026 appearing on some payslips, restoration of his payroll number and other administrative records as evidence that his appointment was permanent and pensionable. The respondents, on the other hand, maintain that while the appellant was initially reflected on payroll records as serving on permanent and pensionable terms, such designation was erroneous and was subsequently clarified through correspondence from the Public Service Commission dated 2nd November 2016 indicating that the appointment was in fact on a renewable three-year contract. 54.The appellant’s complaint is that what the respondents describe as a clarification was in reality an unlawful unilateral variation of his terms of service. He invokes sections 9 and 10 of the Employment Act, Cap 226 and contends that because no contractual duration or end date was communicated at the time of appointment, the respondents could not subsequently introduce a three-year term. 55.Indeed, sections 9 and 10 of the Employment Act impose a mandatory obligation upon employers to reduce contracts of service exceeding three months into writing and to communicate to the employee the essential particulars of employment, including, the form and duration of the contract and, where employment is not intended to be indefinite, the period for which it is expected to continue or the date upon which a fixed-term contract is to end. Further, section 10(5) requires that where any of those particulars change, the employer shall, in consultation with the employee, revise the contract and notify the employee of the change in writing. This statutory scheme therefore contemplates certainty and transparency in employment relationships, particularly regarding tenure, and guards against unilateral alteration of material terms of employment. This is reinforced by section 10(7), which places the burden upon an employer to prove or disprove an alleged term of employment where it fails to produce a written contract or the prescribed particulars. 56.The appellant’s argument is founded on the proposition that, absent any written contractual term specifying a three-year engagement, and in light of section 10(7) of the Employment Act, the respondents cannot subsequently maintain that his appointment was contractual. That argument is, prima facie, not without force. Indeed, none of the primary appointment documents expressly communicated a fixed-term appointment or stipulated an end date. Equally, the respondents did not produce a contemporaneous written contract or other prescribed particulars expressly evidencing the appellant’s appointment on a renewable three-year term. 57.However, the absence of written particulars does not, without more, establish that the appellant was appointed on permanent and pensionable terms. 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. The question that we must grapple with is whether, viewed holistically, the evidence on record demonstrates that the appellant’s appointment was on permanent and pensionable terms. 58.Against that backdrop, the evidence on record presents competing accounts as to the nature of the appellant’s engagement. The appellant relies on payroll records, payslips reflecting “permt” status, retirement dates appearing on some payslips, and other administrative records as demonstrating permanent and pensionable employment. The respondents, in contrast, contend that those records reflected an administrative classification subsequently corrected through the Public Service Commission’s communication dated 2nd November 2016. The contemporaneous appointment documents, namely, the Public Service Commission’s letter dated 4th November 2015, the Ministry of Labour’s appointment letter dated 1st December 2015 accepted by the appellant, and the subsequent appointment letter dated 2nd February 2016, were all silent as to tenure. Further, the appellant acknowledged in his letter dated 18th December 2017 seeking transfer of service from KALRO to the Ministry of Labour that the advertisement did not specify the terms of appointment. In those circumstances, while the respondents’ failure to communicate tenure expressly was inconsistent with the requirements of sections 9 and 10 of the Employment Act, we are unable to conclude that the appellant discharged the burden of establishing appointment on permanent and pensionable terms solely on the basis of administrative records and silence in the appointment documentation. Silence as to tenure does not, without more, amount to proof of permanent and pensionable appointment. 59.Turning to the issue of legitimate expectation, the appellant contends that the respondents’ repeated conduct in treating him as a permanent and pensionable employee as reflected in payslips indicating permanent and pensionable status together with a retirement date of 13th March 2026, created a legitimate expectation that his appointment was on those terms. In support of that contention, he relies on Diana Kethi Kilonzo & Another v Independent Electoral and Boundaries Commission & 10 Others (supra), where the High Court observed that legitimate expectation may arise from an express promise or from a regular and consistent practice of a public authority capable of inducing expectation in an affected person. 60.The law on legitimate expectation is settled. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR observed that legitimate expectation arises where a public authority, through an express promise or consistent conduct, creates an expectation that is clear, unambiguous, reasonable and capable of fulfilment. Further, in Justice Kalpana H. Rawal v Judicial Service Commission & 3 Others (supra), this Court emphasized that a successful claim requires proof not only of such representation, but also that the person asserting the expectation relied upon it to his or her detriment. Put differently, mere anticipation or hope, without more, cannot sustain a claim founded on legitimate expectation. 61.Applying those principles, we agree with the trial court’s conclusion that the appellant did not establish that the respondents’ conduct created a legitimate expectation that his appointment was on permanent and pensionable terms. As already observed, the documents constituting the appellant’s appointment were silent on tenure. Equally, a payslip, being evidence of payroll administration and remuneration, cannot without more communicate terms of employment or create enforceable expectations regarding tenure. We are mindful that consistent administrative conduct may, in appropriate circumstances, contribute to legitimate expectation. However, such expectation must rest upon a clear and unequivocal representation. In the present case, the appellant could not establish such representation solely from payslips reflecting “permt” or “P&P” status and indicating a retirement date, particularly in the absence of appointment documents expressly communicating permanent and pensionable terms. 62.In any case, any expectation that may have arisen from the payroll records was, in our view, subsequently displaced by the Public Service Commission’s letter dated 2nd November 2016 clarifying that the appellant’s appointment was on a renewable three-year contract. That communication rendered untenable any contention that the respondents had maintained a clear, consistent and unequivocal representation that the appellant served on permanent and pensionable terms. We therefore find no basis for interfering with the trial court’s conclusion on this issue. 63.Further, and even assuming, for argument’s sake, that the repeated payroll records and administrative treatment were capable of generating a legitimate expectation of permanent and pensionable status, the appellant’s case is further complicated by the evidence relating to his substantive employment with KALRO. The evidence before the trial court showed that throughout the material period, the appellant remained a substantive employee of KALRO, serving on permanent and pensionable terms, and had proceeded to the Ministry of Labour on leave of absence. That leave was initially granted for two years and subsequently extended for a further year, after which the appellant resumed duty at KALRO. 64.The trial court consequently found that the appellant’s permanent and pensionable service remained with KALRO and had not been transferred to the Ministry of Labour. Although the appellant disputes that finding and relies on sections E.14 and E.31 of the Code of Regulations relating to transfer of pensionable service, the material before this Court does not demonstrate completion of any formal transfer process. In those circumstances, and considering that the appellant eventually resumed his substantive position at KALRO, we find no basis for interfering with the trial court’s conclusion that his permanent and pensionable status remained with KALRO rather than the Ministry of Labour. 65.Turning to the allegations of malice, denial of fair hearing and unfair administrative action, the appellant contends that the clarification of terms coincided with disciplinary proceedings and was actuated by improper motives. The respondents on the other hand maintain that the clarification letter was entirely separate from disciplinary proceedings and indeed made no reference to the appellant’s interdiction. 66.Allegations of malice must be established by evidence. In Judicial Service Commission v Gladys Boss Shollei & Another (supra), this Court observed thus:“…True the allegations were of a serious nature. However, it is one thing to allege facts and another to establish the facts. The perception of bias can only be based on established facts.” 67.Having reviewed the record, we are not persuaded that the appellant established a sufficient evidentiary basis connecting disciplinary proceedings with the clarification of his terms of service. 68.As regards the right to fair administrative action, Article 47 of the Constitution guarantees administrative action that is lawful, reasonable and procedurally fair. The record shows that following communication of the Public Service Commission’s clarification regarding the appellant’s terms of appointment, the appellant pursued internal appeals and sought review of that decision. Although unsuccessful, those appeals were considered. While the delay in communicating the clarification may raise questions regarding procedural propriety, such concerns do not, in the circumstances of this case, displace our earlier conclusion that the appellant failed to establish appointment on permanent and pensionable terms or unlawful variation of those terms. We therefore find no sufficient basis for interfering with the trial court’s findings on this issue. 69.All in all, we are not satisfied that the learned judge erred in any way in arriving at the impugned judgment. 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. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.D. K. MUSINGA.....................................JUDGE OF APPEALMUMBI NGUGI.....................................JUDGE OF APPEALG. V. ODUNGA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar