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ELRCPartially AllowedNot stated in the judgment as reproduced· [2023] KEELRC 65 (KLR)

Okhonjo & another v Kenya Ports Authority (Cause 118 of 2015) [2023] KEELRC 65 (KLR)

Employment and Labour Relations Court
19 January 2023
3,822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Ports Authority was ordered to pay 34 former trainees over KES 64 million for paying them less than peers doing the same job, which the court ruled was workplace discrimination.

What this practically means

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Executive summary

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Thirty-four employees of Kenya Ports Authority, led by the 1st and 2nd claimants, claimed that upon their appointment on December 14, 2007 to the post of trainee assistant operations officer (Gantries) Div. 1A, Grade HG1/HM4 with effect from September 27, 2007, they were never paid the salary attached to that grade during their training period, unlike a comparable group of trainees appointed in 2011 who were paid the HG1 salary. They sought declarations of discrimination and unfair treatment, specific performance, salary arrears of Kes 64,780,770, general damages for discrimination, costs and interest. The respondent argued that promotion and salary increments lay in its discretion, that certificates did not entitle the claimants to salary adjustments, and that the claim was time-barred under section 90 of the Employment Act; the preliminary objection on limitation had already been dismissed by Rika, J on September 25, 2015. The court found the claimants had served on Grade HG1/HM4 for about three years without drawing the attached salary, that the respondent's own Head of Container Operations acknowledged the selective application of rules in a letter dated May 15, 2012, and that the explanation for the differentiated treatment of the 2011 group was unsupported by evidence. Applying sections 5(1)(a), 5(2) and 5(3)(b) of the Employment Act, the court held that selective application of staff rules amounts to discrimination. It awarded the claimed Kes 64,780,770, which was pleaded with detailed particulars and not disputed by the respondent, but declined general damages as duplicative of the proved special damages. Judgment was entered for the claimants with costs and interest from the date of judgment.

Key legal issues

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01

Whether the claimants were discriminated against through selective application of the respondent's staff rules and scheme of service

Holding

The court found the claimants were discriminated against on a balance of probability, as a later comparable group (2011) appointed to the same training grade was paid the HG1 salary while the claimants were not, and the respondent offered no satisfactory explanation.

Reasoning

The claimants' letters of appointment dated December 14, 2007 placed them on Div. 1A, Grade HG1/HM4 without the corresponding salary, while a letter issued on May 31, 2011 to a comparable trainee (Mr. Vitu Salim) provided the salary of the grade. The respondent's only explanation - an extraordinary strike situation for the 2011 group - was unsupported by any evidence, which RW-1 admitted. The Head of Container Operations' letter of May 15, 2012 itself acknowledged the discriminatory treatment.

p. 7
02

Whether the claimants were entitled to salary arrears for job grade HG1 for the period September 27, 2007 to December 2010

Holding

Each claimant is entitled to the full salary and/or salary arrears for the training grade for the period between September 27, 2007 and confirmation on December 1, 2010, and the pleaded and tabulated sum of Kes 64,780,770 was proved.

Reasoning

The court found the claimants served on Grade HG1/HM4 for three years without drawing the attached salary. The tabulation of individual claims dated March 10, 2015 was pleaded with the memorandum of claim; the respondent did not dispute its accuracy or offer an alternative tabulation. Following NSSF Board of Trustees v Sifa International Limited, the particulars of special damages were sufficiently pleaded, and the sum was proved on a balance of probability.

p. 8
03

Whether the claimants were entitled to general damages/compensation for discrimination

Holding

The claim for general damages was declined because the claimants had raised and proved a specific claim for special damages.

Reasoning

Having specifically pleaded and proved the special damages of Kes 64,780,770, an award of general damages for the same discrimination would duplicate the compensatory award. The court relied on Dharamshi v Karsan [1974] EA 41 on the principle against duplication.

p. 8
04

Whether the claim was time-barred under section 90 of the Employment Act

Holding

The issue was not considered as it had already been determined in a prior ruling dismissing the preliminary objection.

Reasoning

A notice of preliminary objection filed on March 24, 2015 alleging the suit was time-barred under section 90 of the Employment Act was canvassed and dismissed by Rika, J in a ruling delivered on September 25, 2015. The court therefore declined to revisit the issue.

p. 4

Legal principles established

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  • An employer cannot plead discretion to perpetuate discrimination; selective application of staff rules, salaries or promotion amounts to discrimination under section 5 of the Employment Act.
  • Particulars of special damages are sufficiently pleaded when a detailed tabulation/schedule of the claim is pleaded and annexed to the pleading.

Court orders

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  1. 1.judgment is hereby entered for the claimants against the respondent for Kes 64,780,770
  2. 2.The claimants are awarded costs of the suit
  3. 3.interest at Court rates, calculated from the date of this judgment

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSection 5(1)(a)
  • Employment ActSection 5(2)
  • Employment ActSection 5(3)(b)
  • Employment ActSection 90
  • Employment ActSections 5, 17 and 18 (as pleaded by the claimants)

Cases cited (2)

  • National Social Security Fund Board of Trustees v Sifa International Limited
  • Dharamshi v Karsan
    [1974] EA 41
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under Article 41 of the Constitution of Kenya and the Employment Act (industrial and labour relations jurisdiction); not expressly stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okhonjo & another v Kenya Ports Authority (Cause 118 of 2015) [2023] KEELRC 65 (KLR)", Case Analysis (2023). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/65/eng@2023-01-19

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