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ELRCAllowedPetition E189 of 2023· [2024] KEELRC 2436 (KLR)

Ocharo v Anti – Female Genital Mutilation Board & 2 others; Salaries and Remuneration Commission & 21 others (Interested Parties) (Petition E189 of 2023) [2024] KEELRC 2436 (KLR)

Employment and Labour Relations Court
4 October 2024
JRJames Rika
393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court adopted its earlier judgment to award underpaid former employees salary arrears and Kshs. 300,000 each, showing identical claims can be resolved without a full retrial.

What this practically means

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Executive summary

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This Employment and Labour Relations Court petition (E189 of 2023) raised grievances identical to those in Petition E013 of 2021, in which the Petitioner had sued on behalf of seven former employees of the 1st Respondent Board. The current petition was brought on behalf of a further group of former employees - the 2nd to 22nd Interested Parties - who were co-employees of the interested parties in the earlier petition, and whose grievances, pleaded violations and remedies against the 1st Respondent Board were the same. Those grievances had also been considered and determined by the Commission on Administrative Justice in Inquiry File FGM/012/423/2018. The court observed that the judgment in Petition E013 of 2021 had endorsed the Commission's findings and held that it had no reason to retry the facts or depart from the existing judgment. It accordingly adopted the judgment in Petition E013 of 2021 as the judgment of the court in the present petition, together with the Commission's findings. The court declared that the 1st Respondent violated the 2nd to 22nd 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. It ordered payment of the difference between salaries paid under the 2nd Respondent's Advisory and those payable under the salary structure approved by the 1st Interested Party over the period of deployment, plus general damages of Kshs. 300,000 per Interested Party, interest at court rates from the date of judgment, and costs to the 2nd to 22nd Interested Parties.

Key legal issues

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01

Whether the present petition, replicating the grievances, pleaded violations and remedies of Petition E013 of 2021, should be resolved by adoption of that judgment

Holding

Yes; the judgment in Petition E013 of 2021, which endorsed the Commission on Administrative Justice findings, was adopted as the judgment of the court in the present petition, with identical declaratory and monetary relief extended to the current Interested Parties.

Reasoning

The court found the current petition bore the same factual and legal background as Petition E013 of 2021, with the same grievances, violations and remedies against the 1st Respondent Board. Those grievances had been considered and determined by the Commission on Administrative Justice, and the court in the earlier petition had endorsed those findings. The court saw no reason to retry the facts or depart from the existing judgment, and accordingly adopted it, including the awards of salary differentials and general damages of Kshs. 300,000 each.

p. 2

Legal principles established

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  • Where a petition has the same facts, grievances, violations and remedies as a previously determined petition, and the court has endorsed the findings of a prior administrative inquiry, the court need not retry the facts and may adopt the earlier judgment as its own.

Court orders

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  1. 1.Judgment in Petition Number E013 of 2021 is adopted as the Judgment of the Court in Petition E189 of 2023
  2. 2.The findings of the Commission on Administrative Justice in its Inquiry File FGM/012/423/2018 are adopted as the findings of the Court
  3. 3.Declaration that the 1st Respondent violated the 2nd to 22nd 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
  4. 4.The 1st Respondent shall pay the 2nd to 22nd Interested Parties the difference between salaries paid in accordance with the 2nd Respondent's Advisory and those payable under the salary structure approved by the 1st Interested Party over the period of deployment
  5. 5.The 1st Respondent shall pay each of the 2nd to 22nd Interested Parties general damages of Kshs. 300,000 for violation of constitutional and statutory rights
  6. 6.Costs to the 2nd to 22nd Interested Parties
  7. 7.Interest at court rates from the date of Judgment until payment in full
Jurisdiction invoked
Original jurisdiction under Articles 41 and 236 of the Constitution and the Employment Act (not expressly stated in the excerpt)

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, "Ocharo v Anti – Female Genital Mutilation Board & 2 others; Salaries and Remuneration Commission & 21 others (Interested Parties) (Petition E189 of 2023) [2024] KEELRC 2436 (KLR)", Case Analysis (2024). Petition E189 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2436/eng@2024-10-04

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