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ELRCPartially AllowedKTL ELRC NO. 11 OF 2022· [2024] KEELRC 1008 (KLR)

Oigoro v Turkana County Public Service Board & another (Cause 11 of 2022) [2024] KEELRC 1008 (KLR)

Employment and Labour Relations Court
12 April 2024
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a Public Service Commission decision on a county employment appeal binds county governments, and awarded an employee over Kshs 7.5 million.

What this practically means

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Executive summary

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The Claimant, a retired County Director of Agriculture formerly employed by the Turkana County Public Service Board, sued the Board and the County Government of Turkana alleging ethnic discrimination. He contended that although appointed County Director of Agriculture on 28th February 2013 by the then Permanent Secretary, Ministry of Agriculture, he was never confirmed or promoted to Job Group 'R' because he is from the Kisii community, while his Turkana colleagues and even his two deputies were confirmed and promoted. He sought a declaration that he was entitled to Job Group 'R' from 1st February 2015 as directed by the Public Service Commission on his appeal, Kshs 19,356,689.48 in underpayment and allowances, general damages for discrimination, interest and costs. The Respondents denied the discrimination and any indebtedness. The court framed two issues: discrimination and reliefs. Relying on the deployment letter, the Claimant's 2015 confirmation request, and the PSC decision of 9th December 2021 allowing his appeal and directing his placement in Job Group 'R' with arrears - which the Respondents never appealed - the court held the Claimant was discriminated against and that the PSC decision bound the Respondents. Judgment was entered for the Claimant: a declaration of entitlement to Job Group 'R' from 1st February 2015; Kshs 7,003,513 in salary and allowance arrears; Kshs 500,000 damages for discrimination; interest on the arrears from filing suit and on damages from judgment; and costs of the suit. The Kshs 2,000,000 travel allowance claim failed for want of strict proof as special damages.

Key legal issues

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01

Whether the Claimant was discriminated against on grounds of ethnicity in promotion

Holding

Yes - the Claimant was discriminated against when his two deputies were promoted to Job Group 'Q' in 2015 while he remained in Job Group 'N', and he was never confirmed as County Director

Reasoning

The court relied on the deployment letter of 28th February 2013 appointing the Claimant as County Director of Agriculture, his own letter of 24th August 2015 seeking confirmation, and the PSC decision of 9th December 2021 confirming he acted in the post and that the Board did not rebut his claim. Section 5 of the Employment Act prohibits discrimination on ethnic grounds in promotion. Promoting deputies while leaving him in a lower group amounted to unlawful discrimination.

p. 5
02

Whether the PSC decision elevating the Claimant to Job Group 'R' bound the Respondents

Holding

Yes - the Respondents did not appeal the PSC decision and it was binding on them

Reasoning

The PSC, on appeal under section 77 of the County Government Act, decided the Claimant be deemed appointed at the grade of County Director of Agriculture, Job Group 'R' with effect from 1st February 2015, with arrears. The Respondents' witness admitted the Respondents never appealed that decision. The court held the recommendations were binding notwithstanding the Respondents' assertion of unawareness of the letter.

p. 6
03

Quantum of arrears and allowances payable

Holding

Arrears of salary and allowances of Kshs 9,003,513 less amounts already reflected led to Kshs 7,003,513 awarded, plus Kshs 500,000 general damages for discrimination; the Kshs 2,000,000 travel allowance claim failed

Reasoning

The Respondents did not rebut the evidence on underpayment based on the Implementation of Job Evaluation Results salary review figures for Job Group 'R'. The DSA/travel allowance figure of Kshs 2,000,000 was an estimate and unproved special damages, so it was declined. General damages of Kshs 500,000 were awarded for the discrimination established.

p. 7

Legal principles established

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  • Recommendations/decisions of the Public Service Commission on employment appeals are binding on county public service boards and county governments
  • Special damages must be strictly proved

Court orders

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  1. 1.A declaration that the Claimant is entitled to be in Job Group 'R' with effect from 1st February 2015
  2. 2.Payment of arrears of salary and allowances from 1st February 2015 under Job Group 'R' totalling Kshs 7,003,513.00
  3. 3.Kshs 500,000 awarded as damages for discrimination
  4. 4.Interest on the arrears at court rates from date of filing suit and on the discrimination damages from date of judgment
  5. 5.Claimant awarded costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(4), 232(1)(f), (g), (h)
  • County Government Actsection 65(2), section 77
  • Employment Actsection 5
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and discrimination claims (claim pleaded under Article 27(4), 232(1)(g), (h) and (f) of the Constitution and section 65(2) of the County Government Act; section 5 Employment Act)

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, "Oigoro v Turkana County Public Service Board & another (Cause 11 of 2022) [2024] KEELRC 1008 (KLR)", Case Analysis (2024). KTL ELRC NO. 11 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1008/eng@2024-04-12

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