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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Court cause)· [2019] KEELRC 1854 (KLR)

Erastus K Gitonga & 4 others v National Environmental Management Authority; Law Society of Kenya (Interested Party) [2019] KEELRC 1854 (KLR)

Employment and Labour Relations Court
10 April 2019
BOByram Ongaya
6,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled NEMA had to pay its in-house lawyers millions in allowances that other public service lawyers were already receiving.

What this practically means

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Executive summary

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Five advocates employed by the National Environment Management Authority (NEMA) as full-time legal officers sued claiming declarations that NEMA's failure to pay them a non-practice allowance and a prosecutorial allowance was unlawful, wrongful and unfair, together with quantified arrears, accruing allowances, interest and costs. The Law Society of Kenya was enjoined as interested party by consent. The suit was determined on pleadings and documents. The court framed three issues: whether NEMA was bound by the Public Service Commission Human Resource Policy, 2016 and the circulars of 11.06.2010 and 09.10.2012; whether the claimants were entitled to grading equivalency with State Law grades; and whether denial of the allowances constituted discrimination and unfair labour practice. The court held that NEMA, as a public body within the Public Service Commission's constitutional authority, was bound by the Commission's policies and by both circulars, which applied to the entire legal subsector of the public service; that grading equivalency was established on a balance of probability because the employer failed to discharge the statutory burden under section 10(7) of the Employment Act; and that although discrimination on Article 27 listed grounds was not proved, denial of the allowances amounted to unequal treatment and an unfair labour practice under section 5 of the Employment Act and the ILO conventions. Judgment was entered for the claimants on all heads, with payment of the quantified sums and accruing allowances due by 01.08.2019 failing which interest would run, directions to the Public Service Commission to harmonise grading by 01.02.2020, and costs to the claimants.

Key legal issues

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01

Whether NEMA was bound by the PSC Human Resource Policy, 2016 and the circulars of 11.06.2010 and 09.10.2012

Holding

Yes - the respondent is a public body within the PSC's constitutional authority and bound by the circulars, which applied to the entire legal subsector of the public service

Reasoning

The court held the respondent is not among entities excluded from PSC functions under Article 233(3). Section 16 of EMCA must be construed with alterations necessary to conform to the Constitution under section 7(1) of the 6th Schedule. The respondent's HR Manual clause 8.25 expressly contemplates payment of non-practising allowance per government circulars, and the 2010 circular's accrued rights survived under section 6 of the 6th Schedule. The 2012 circular applied to all lawyers in the public service, not only gazetted prosecutors.

p. 5
02

Whether the claimants were entitled to grading equivalency with State Law grades

Holding

Yes - on a balance of probability, the equivalency urged for the claimants applied

Reasoning

Under section 10(1) of the Employment Act grades and remuneration are particulars of the contract; under section 10(7) the burden lay on the employer, who failed to discharge it. The respondent was statutorily obliged under section 25 of the PSC Act, 2017 to move the Commission on grading doubts and could not benefit from its own failure. A board paper endorsement showed the Board in substance had no issue with equivalency.

p. 5
03

Whether denial of the allowances amounted to discrimination and unfair labour practice

Holding

Not discrimination on Article 27 listed grounds, but unequal treatment and unfair labour practice under section 5 of the Employment Act and the ILO conventions

Reasoning

The claimants, advocates in public service performing work of equal value to officers enjoying the allowances, suffered adverse and unequal treatment. Following Louw v Golden Arrow Bus Services and Ol Pejeta Ranching Ltd, paying different wages for work of equal value on arbitrary grounds is an unfair labour practice. The grounds relied on by the respondent (the salary-review freeze circular and the circulars not being addressed to it) were arbitrary and unreasonable.

p. 6

Legal principles established

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  • Public bodies exercising human resource functions must align their decisions with the constitutional functions, policies and regulations of the Public Service Commission; board decisions cannot override Commission policies
  • Allowances of general application across the public service form part of terms and conditions of service even if not specifically incorporated in individual contracts
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer under section 10(7) of the Employment Act
  • Paying different remuneration for work of equal value without lawful justification constitutes unequal treatment and unfair discrimination founded on arbitrary grounds

Court orders

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  1. 1.Declaration that the respondent's failure to pay the 1st to 5th claimants a non-practice allowance was unlawful, wrongful and unfair
  2. 2.Declaration that the respondent's failure to pay the 1st to 5th claimants a prosecutorial allowance was unlawful, wrongful and unfair
  3. 3.Declaration that the respondent subjected the claimants to unequal treatment amounting to discriminatory and unlawful labour practice
  4. 4.Payment of non-practice allowance in the stated sums (Kshs. 2,060,000; 1,760,000; 1,900,000; 860,000; 540,000) to the respective claimants
  5. 5.Payment of non-practice allowance accruing from the date of filing the claim for the duration of service
  6. 6.Payment of prosecutorial allowance in the stated sums to the 1st to 4th claimants (Kshs. 1,830,000; 1,470,000; 1,470,000; 1,440,000)
  7. 7.Payment of prosecutorial allowances accruing to the 1st to 3rd claimants from the date of filing the claim for the duration of their service
  8. 8.Amounts already due to be paid not later than 01.08.2019 failing which interest at court rates from the date of judgment until full payment
  9. 9.Claimants to serve the judgment upon the Public Service Commission within 7 days, towards issuance of a gazette notice under section 98 of the Public Service Commission Act, 2017 harmonising grading equivalency, to be considered not later than 01.02.2020
  10. 10.Respondent to pay the claimants' costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 230, 232, 233, 234, 259; 6th Schedule sections 6 and 7(1)
  • Environmental Management and Co-ordination Act No.8 of 1999sections 7, 16
  • Interpretation and General Provisions Actsection 3
  • Public Officer Ethics Actsection 2
  • Criminal Procedure Codesection 85(1)
  • Office of the Director of Public Prosecutions ActNot stated
  • Employment Act, 2007sections 5, 10(1), 10(7), 16(3) and (4)
  • Public Service Commission Act, 2017 (No.10 of 2017)sections 3, 25, 98
  • Kenya Defence Forces Act No. 25 of 2017section 28
  • Law Society of Kenya Act No.21 of 2014section 4
  • Public Service Code of Conduct (2006) / Public Service Commission Human Resource Policy, 2016clauses C.23, B.22(1), A.2
  • ILO Equal Remuneration Convention, 1951 (No.100)Article 2
  • ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111)Article 2

Cases cited (5)

  • Hezekiah Oira T/A Oira Advocates –Versus- Kenya Broadcasting Corporation
    [2015]eKLR
  • State of M.P & Ors –Versus- Yogendra Shivastava
    Civil Appeal No. 3156 of 2007
  • Louw –Versus- Golden Arrow Bus Services (Pty) Ltd
    [1999] ZALC 166
  • Ol Pejeta Ranching Limited –Versus- David Wanjau Muhoro
    [2017]eKLR
  • Copper Pass Ltd –Versus- Lawton
    [1977] Q.B 852
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 and Article 41 of the Constitution (fair labour practices)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Erastus K Gitonga & 4 others v National Environmental Management Authority; Law Society of Kenya (Interested Party) [2019] KEELRC 1854 (KLR)", Case Analysis (2019). Not stated in the judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1854/eng@2019-04-10

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