Eliud Gatungu Wanjohi & 3 others v Kenya Railways Corporation
The bottom line
#Kenya's Court of Appeal ruled that a salary gap between promoted managers and former unionisable colleagues is not discrimination unless the employee proves it stems from a protected ground under section 5 of the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the salary discrepancy between the appellants (promoted to managerial Grade RA) and their former unionisable juniors amounted to unlawful discrimination under section 5 of the Employment Act
No discrimination was established. The discrepancy flowed from the structure of two salary schemes - unionisable salaries negotiated by CBA at two-year intervals and managerial salaries reviewed through the Ministry and DPM at longer intervals - not from any discriminatory act by the employer. The promotion itself was a positive act and colleagues in the same position were paid equally.
Section 5 of the Employment Act obliges employers to promote equal opportunity and to pay equal remuneration for work of equal value, and prohibits direct or indirect discrimination on listed grounds. The appellants did not allege any of those grounds and did not controvert the respondent's evidence that it complied with its Personnel Regulations on promotion. The discrepancy arose from the infrequent managerial salary reviews, and the employer's re-conversion payments following the Inter-Ministerial Committee admitted a discrepancy, not discrimination.
Whether the learned Judge of the ELRC erred in finding that the appellants' dissatisfaction with the Inter-Ministerial Committee adjustments was not a ground for court intervention
The trial court's conclusions were sound, supported by evidence and law. The appellants had received salary adjustments pursuant to the Committee's findings and their dissatisfaction with those adjustments was not a basis for court intervention; the respondent had also complied with its Regulations and the appellants had not invoked the Managing Director's intervention avenue.
The Court, exercising its first-appeal duty of re-evaluation, found the trial Judge's findings well supported. The respondent's evidence that it complied with its Personnel Regulations on promotion was uncontroverted, and the appellants had the option of seeking the Managing Director's intervention but did not invoke it. Payments made in alignment with the Inter-Ministerial Committee's findings were made in good faith and in full settlement, so no further claim lay.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and must rule only on the evidence on record.
- An employee alleging unequal pay must adduce evidence of direct or indirect discrimination on grounds listed in section 5 of the Employment Act; a mere salary discrepancy arising from the differing pace of unionisable and managerial salary reviews, with equal remuneration within the same position, does not constitute discrimination.
- A payment made pursuant to an administrative committee's findings reconfiguring salaries is an admission of discrepancy, not an admission of discrimination.
Court orders
#- 1.The appellants' appeal lacks in merit and is dismissed
- 2.The judgment of the ELRC, M. Onyango, J. dated 20th May 2019 is upheld
- 3.No orders as to costs (the Court made none, noting the ELRC had made none)
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC No. 2000 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Gatungu Wanjohi & 3 others v Kenya Railways Corporation", Case Analysis (2024). Civil Appeal (memorandum of appeal dated 13th December 2019, arising from ELRC No. 2000 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1225/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.