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ELRCDismissedPetition dated 16.05.2024

Nkosi & another v Salaries and Remuneration Commission & 5 others (Petition E076 of 2024) [2024] KEELRC 2840 (KLR)

Employment and Labour Relations Court
15 November 2024
BOByram Ongaya
3,580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed NHIF managers' claim that they were discriminated against compared to unionised staff, finding no valid comparison could be made.

What this practically means

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Executive summary

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Petitioners, NHIF management staff in grades HF8 to HF13, petitioned seeking injunctions halting the NHIF-to-SHA transition and the submission of the Transition Committee's report, orders compelling the SRC to produce recommendations and Article 35 information, declarations of discrimination and constitutional violation, and mandamus directing salary review harmonising their pay with unionised staff who received increments under the 2013/2017, 2017/21 and 2021/23 CBAs. They alleged a pay disparity of up to about Kshs. 30,000 at certain grades. SRC responded that its mandate over NHIF staff was limited by ELRC Cause No. 40 of 2015 pending Civil Appeal No. 156 of 2016, and that NHIF failed to submit documents for job evaluation and comply with CBA-cycle advice. NHIF stated a salary survey was halted by the enactment of the Social Health Insurance Act, 2023, and that HR matters had been handed to SHA. SHA said its role is to recruit staff giving priority to NHIF staff, with salaries based on SRC advice. The Court framed two issues: whether the respondents discriminated against the petitioners, and whether remedies should issue. It found no discrimination was established because managers and unionisable staff are distinct categories with no valid comparator, and no respondent was proved to have acted discriminatorily, SRC having been constrained by an intervening court decision. With no discrimination established, the petition largely collapsed; no submissions justified the reliefs, which were found speculative or unproved. The petition was dismissed with each party bearing its own costs, the Court noting all parties are public officers or bodies.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents have discriminated against the petitioners
  2. 2.Whether the remedies sought should issue

Key legal issues

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01

Whether the respondents discriminated against the petitioners contrary to Article 27 of the Constitution

Holding

No discrimination established; petitioners and unionisable staff belong to different categories with no valid comparator, and no particulars of discrimination were pleaded or proved against any respondent

Reasoning

The Court found managers and unionisable employees are governed by distinct laws, contracts, policies and practices, so no valid comparator exists. Further, SRC's inaction was justified by a subsisting court decision excluding NHIF staff from its mandate until the Court of Appeal determined Civil Appeal No. 156 of 2016; NHIF had initiated salary review steps halted by the Social Health Insurance Act, 2023; and no proof of discrimination was shown against the other respondents, including the Transition Committee whose reports could not include uncrystallised amounts.

p. 7
02

Whether the constitutional remedies sought should issue

Holding

Remedies refused because the petition collapsed with the failure to prove discrimination, and no specific submissions justified any of the reliefs

Reasoning

The Court held that with no discrimination established the petition must largely collapse. The reliefs for information were speculative as no request and refusal were pleaded; no submissions showed any respondent contravened the constitutional provisions cited in prayer (f); and the injunctions were unsupported by submissions. Costs were left to each party as all are public officers or bodies.

p. 8

Legal principles established

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  • A discrimination claim based on differential treatment between management staff and unionisable staff collapses for want of a valid comparator because their terms of remuneration are governed by distinct regimes
  • A party cannot be held culpable where its inaction was constrained by an intervening court judgment on its mandate

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 – Articles 19, 27, 28, 41 and related Bill of Rights enforcement jurisdiction of the Employment and Labour Relations Court

Relief refused

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Injunction stopping transition from NHIF to SHA

No discrimination established; no submissions justifying the grant of the injunctions

p. 8

Orders compelling SRC to produce recommendations and communications with National Treasury

Particulars not specifically pleaded; it is not shown a request was made and declined; reliefs found speculative

p. 8

Declarations of discrimination and constitutional violation and mandamus to review salaries

Petitioners failed to establish discrimination owing to want of a valid comparator and lack of proof against respondents

p. 7

Costs against the respondents

All parties are public officers or bodies

p. 8

Costs

Each party to bear own costs of the petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court has considered the petitioners’ case and returns that the petitioners have failed to establish discrimination as was alleged.
p. 7discrimination claim
While the managers and the union members are both, by the two categories, employees of the same employer, the law, contracts, policies and practices applicable to the determination of their salaries or remuneration are distinct an separate. By that inherent distinction, the alleged discrimination will collapse because of want of a valid comparator.
p. 7valid comparator
The generalised reliefs for provision of information are found speculative.
p. 8reliefs for information
In conclusion the petition is hereby dismissed with orders each party to bear own costs of the petition.
p. 8disposition

Issues in the judgment

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minor

Typographical errors in the judgment text, e.g. 'stafi' for 'staff', 'efiect' for 'effect', 'an separate' for 'and separate'

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, "Nkosi & another v Salaries and Remuneration Commission & 5 others (Petition E076 of 2024) [2024] KEELRC 2840 (KLR)", Case Analysis (2024). Petition dated 16.05.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2840/eng@2024-11-15

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