Ocharo v Anti-Female Genital Mutilation Board & another; Salaries and Remuneration Commission & 7 others (Interested Parties) (Petition E013 of 2021) [2022] KEELRC 1542 (KLR)
The bottom line
#Kenya's Employment Court ruled that paying seconded staff at the Anti-FGM Board unequal salaries was unconstitutional discrimination, ordering back pay and damages.
What this practically means
#Executive summary
#Key legal issues
#Discriminatory remuneration of seconded public officers
The 1st Respondent treated the aggrieved officers discriminatorily by paying 4 employees per the approved salary structure while paying the rest 15% of basic salary on the 2nd Respondent's advisory
The court adopted the Commission on Administrative Justice findings, which noted there was no basis for the distinction between the two groups of employees. All had been seconded from Ministries and assigned substantive duties. The explanation that special functions justified the difference was rejected, and the same salary structure had already been implemented for 4 employees, making the Respondent's excuse hollow.
Conflict between the 2nd Respondent's statutory advisory role and the 1st Interested Party's constitutional mandate
The salary structure approved by the 1st Interested Party under article 230(4)(b) of the Constitution should have prevailed over the 2nd Respondent's advice under section 27(1)(c) of the State Corporations Act
Section 27(1)(c) of the State Corporations Act requires advice only where necessary; the 1st Interested Party had constitutional mandate over remuneration of public officers and had endorsed the salary structure. The 2nd Respondent should have deferred to that constitutional mandate, and its contrary advice was inconsistent with article 230(4)(b).
Weight to be given to Commission on Administrative Justice findings
Although not automatically binding, the court adopted the Commission's unchallenged findings as the findings of the Court in the interest of comity and efficient use of public resources
Citing the Supreme Court's decision in Kenya Vision 2030 Delivery Board, the court acknowledged the Commission's recommendations bind only if so provided in law. However, the parties appeared before the Commission, its findings were unchallenged, and the 1st Respondent's CEO said nothing about them in her affidavit. The court adopted the findings rather than conduct a separate trial.
Legal principles established
#- Recommendations of the Commission on Administrative Justice can only be binding if specifically provided for in law
- The constitutional mandate of the Salaries body under article 230(4)(b) prevails over advice given under section 27(1)(c) of the State Corporations Act where such advice is unnecessary
- A court should not re-try facts already established by another reputable state institution where those findings are unchallenged
Court orders
#- 1.The findings of the Commission on Administrative Justice in its Inquiry File FGM/012/423/2018 are adopted as the findings of this Court
- 2.Declaration that the 1st Respondent violated the 2nd to 9th Interested Parties' constitutional and statutory rights under articles 27, 41 and 236 of the Constitution, section 4 of the Fair Administrative Action Act and Section 5 of the Employment Act
- 3.The 1st Respondent shall pay the 2nd to 9th Interested Parties the difference between salaries paid per the 2nd Respondent's Advisory and those payable under the salary structure approved by the 1st Interested Party over the period of deployment
- 4.The 1st Respondent shall pay each of the 2nd to 9th Interested Parties general damages of Kshs. 300,000 for the violations
- 5.Costs to the 2nd to 9th Interested Parties, to be paid by the 1st Respondent
- 6.Interest allowed at court rates from the date of Judgment till payment in full
- Jurisdiction invoked
- Articles 27, 41 and 236 of the Constitution read with the Fair Administrative Action Act and the Employment Act; original jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ocharo v Anti-Female Genital Mutilation Board & another; Salaries and Remuneration Commission & 7 others (Interested Parties) (Petition E013 of 2021) [2022] KEELRC 1542 (KLR)", Case Analysis (2022). Petition No E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1542/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.