Zilpa Auma Ayara v The Kenya Power & Lighting Company Limited

b. A declaration that the Claimant was discriminated and denied the right to career progression by the Respondent. c. Accrued and unpaid salary, allowances and Benefits for the position of Chief Officer, In charge the National Contact center Kshs. 474,079.00%12 *6yrs =Kshs 34,133,688.00/= d. Unpaid Acting allowance for the period between April, 2018 to December, 2022 being 25% of the basic salary Kshs 205,880*1/4*12*5yrs =Kshs 3,088,200.00/= e. Compensation for discrimination = Kshs 5,000,000.00/= f. Reissuance of Retirement Certificate Reflecting the Claimant’s roles for the final six (6) years of her service. g. Cost of this suit h. Interest. i. Any other relief this honorable court may feel just and reasonable to award. Claimant’s Case 2 The Claimant avers that she was employed by the Respondent on 1st June 1987 as a Filing Clerk and progressively rose through the ranks to the positions of Quality Supervisor, MG Grade 11, Contact Centre, Acting Chief Officer and Chief Officer. Page 2 of 41

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3 She avers that by the time of her exit from the Respondent in April 2024, she had served for an aggregate period of 36 years without any concern regarding her performance or conduct being raised against her. 4 The Claimant avers that on 6th April 2018, the position of Chief Officer in charge of the National Contact Centre fell vacant following the transfer of the then office holder, whereupon she was appointed to act in the position. She contends that the position was not substantively filled throughout the period she remained in the Respondent’s employment. 5 It is the Claimant’s case that although she assumed the duties of Chief Officer, she remained on salary scale MG 11 and was subsequently moved to MG 09, three grades below the position in which she was acting. 6 She avers that the salary adjustment communicated by the letter dated 27th December 2019 did not accord with the Respondent’s Staff Regulations and Procedures on promotion, and effectively of circumvented the Respondent’s obligation to pay her acting allowance and confirm her to the position upon expiry of the six-month acting period. 7 The Claimant further avers that Part IV of the Respondent’s Staff Regulations and Procedures on Acting Page 3 of 41

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Allowance provides that acting allowance shall not be paid for more than six months and therefore contemplates that, before expiry of that period, a suitable replacement ought to be found or the acting officer confirmed to the position. 8 She also relies on Section C14(1) of the Human Resource and Procedures Manual for the Public Service, which she contends provides for acting allowance at 20% of the officer’s substantive basic salary and similarly limits payment to six months. 9 The Claimant avers that despite the foregoing provisions, she was neither substantively confirmed nor paid acting allowance for the period from 6 th April 2018 until February 2023. It was only after persistent requests that the Respondent commenced payment of the acting allowance, approximately five years after her appointment, while the cumulative allowance for the earlier period remained unpaid. 10 The Claimant states that, following her appointment, she sought clarification of her new roles through a letter dated 9th August 2018. Subsequently, the Respondent clarified the delegated roles through a letter dated 2 nd October 2020 and issued another letter dated 6 th January 2021 concerning change of title. 11 She contends that the subsequent change of title to Customer Experience Officer in charge of the National Page 4 of 41

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Contact Centre did not alter the substance of the duties she performed, which remained those of the Chief Officer. 12 She further avers that the Respondent continued referring to her as the Acting officer in charge of the National Contact Centre in subsequent communications. 13 It is the Claimant’s contention that by virtue of the Respondent’s Staff Regulations and Procedures, as read with Section C14 of the Human Resource and Procedures Manual for the Public Service, and in the absence of a substantive appointment to the position after expiry of six months, she became substantively confirmed to the position of Chief Officer by operation of law. 14 She avers that she was consequently entitled to the salary, allowances and benefits attached to salary scale MG 06, which were not accorded to her. 15 The Claimant avers that throughout the period she performed the functions of Acting Chief Officer, she discharged her duties diligently and to the satisfaction of the Respondent, working long hours to ensure the proper coordination of the National Contact Centre. She states that the systems she initiated remained in use by the Respondent and that her contribution to the turnaround of the Contact Centre was acknowledged by her supervisor. 16 The Claimant states that she repeatedly raised the issue of her appointment, unpaid salary and acting allowance Page 5 of 41

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with her supervisor over the six-year period and relies on various emails, memoranda and letters exchanged with the Respondent, as well as the Respondent’s alleged admissions concerning her status. Despite these efforts, the Respondent failed to regularize her position or pay her the remuneration and benefits attached to the position she was performing. 17 It is the Claimant’s case that the Respondent’s failure to accord her the salary, allowances and benefits attached to the position, while retaining her in an acting capacity for six years, subjected her to humiliation before her juniors, financial hardship and exhaustion from work without commensurate reward. 18 She avers that the resulting demoralization, coupled with what she describes as persistent threats to her safety, led her to opt for early retirement by tendering her resignation on 16th January 2024. 19 The Claimant avers that the Respondent’s treatment of her amounted to discrimination on the basis of gender and denied her career progression. 20 She avers that she took over the acting position from the previous office holder who had been earning the full salary and acting allowance, but the Respondent withheld the acting allowance in her case. Page 6 of 41

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21 She further states that the immediate former Acting Chief Officer in charge of the National Contact Centre was promoted to a substantive Chief Manager position, while she remained in an acting capacity. 22 The Claimant further avers that the Respondent’s delay in confirming her was partly informed by its practice of disregarding gender equality in recruitment and career progression to the disadvantage of female employees, which she states was highlighted in an audit report. 23 She contends that although she remained on salary scale MG 09, she was responsible for over two hundred (200) employees and carried greater responsibilities than the Chief Officer at MG 06 and the Principal Customer Experience Officer at MG 07, who were responsible for one and two employees respectively. 24 It is the Claimant’s contention that the Respondent discriminated against her by withholding the salary, allowances and benefits attached to the position she was performing while paying the same to the current Chief Officer, the Principal Customer Experience Officer and the immediate former Acting Chief Manager in charge of the National Contact Centre. 25 She asserts that the Respondent thereby violated Section 5 of the Employment Act and Articles 27 and 41 of the Page 7 of 41

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Constitution and denied her an opportunity for career progression despite her qualifications and competence. 26 The Claimant further avers that the Respondent issued her with a retirement certificate which did not reflect her actual roles during the final six years of her service, thereby undermining her ability to secure a commensurate opportunity elsewhere. 27 She contends that she had a legitimate expectation that she would be confirmed to the position of Chief Officer upon expiry of the six-month acting period, particularly in the absence of a substantive appointee, and that the Respondent’s failure to do so amounted to a breach of its Staff Regulations and Procedures. Respondent’s Case 28 In opposition to the Claim, the Respondent filed an Amended Statement of Response dated 7th February 2025. 29 The Respondent avers that it employed the Claimant on 1 st June 1987 as a Clerk V, and that at the time of her voluntary early retirement she held the substantive position of Customer Experience Officer I, Commercial Services and Sales Division, Central Office, Salary Scale MG09. 30 The Respondent avers that the Claimant's tenure was marked by three disciplinary episodes: termination in Page 8 of 41

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August 2002 for diverting corporate cheques into individual accounts, followed by conditional reinstatement with a stern warning in May 2003; a warning in July 2008 for irregularly updating the incidence window; and an explanation letter in March 2022 over a Fair performance rating for FY 2021/2022, said to fall below expectation. 31 It is the Respondent's case that the position of Chief Officer In-Charge, National Contact Centre fell vacant before 6th April 2018, and that the delay in filling it arose from a government directive freezing recruitment, issued around 2017. 32 On her substantive progression, the Respondent avers that the Claimant held the position of Customer Relations Officer III (MG11) during the material period; was appointed Customer Service Officer I with effect from 1 st January 2019 (MG10), with an accompanying salary adjustment; and received a further adjustment to MG09 effective 1st January 2020. It contends that the letter of 2nd October 2020 she relies on relates to these substantive duties and not to the acting appointment. 33 It is averred that the Claimant was appointed to act as Chief Officer In-Charge with effect from 9 th April 2018, entitling her only to an Acting Allowance, not a salary adjustment, taking effect two months later, from 9 th June 2018, under Part IV(b) of its Staff Regulations and Procedures, and that Part IV(d) of the same Regulations Page 9 of 41

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permitted her continued acting beyond six months in the exceptional circumstances pleaded, subject to special approval. 34 It states it is governed by its own Staff Regulations rather than the Human Resource Policies and Procedures Manual for the Public Service, 2016. Her salary at exit is stated as KES 204,891.00, effective 1st November 2023. 35 The Respondent denies withholding the Claimant’s acting allowance and particularizes a series of authorizations by the Manager, Human Resource Services, between 11 th February 2019 and 2nd \ April 2024, covering discrete monthly periods from April 2018 through March 2024, by which the allowance was paid. 36 The Respondent avers that the Claimant acted from 9 th April 2018 to 27th May 2020, when another employee was appointed to act in her place; that she was not acting between 28th May 2020 and 31st December 2022, during which the other employee held the acting role; and that she resumed acting from 1st January 2023 until her retirement in April 2024. 37 In the alternative, it pleads that claims for allowance relating to the periods 28 th May 2020 – 31st December 2022 and April 2018– 27th May 2020 are time-barred under section 90 of the Employment Act, 2007, with notice of preliminary objection given on both counts. Page 10 of 41

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38 The Respondent contends that the Claimant cannot reasonably expect confirmation to, or remuneration at the level of, the substantive position absent competitive recruitment under its Promotions policy, and that her claim to such remuneration is unjustified and amounts to unjust enrichment. 39 On discrimination, it avers that the Audit Report the Claimant relies on concerns its entire workforce of over seven thousand employees across eight regions, not her specific department or role. 40 On legitimate expectation, the Respondent's case is that no promise, express or implied, was made to her, that an acting appointment cannot found such an expectation, and that her own acting letter was explicit that the appointment was pending substantive filling of the position. It contends that confirming an acting officer outright would itself violate the legal requirement of competitive, transparent recruitment. 41 The Respondent avers that the Claimant resigned voluntarily by letter dated 16th January 2024, effective 14th April 2024, in which she attributed her departure to unavoidable personal reasons requiring her presence elsewhere, stating that but for this she would have never preferred to leave, an account the Respondent says contradicts her present claim that she left due to Page 11 of 41

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demoralization over unpaid dues, refused confirmation, and threats to her safety. 42 It avers she never sought confirmation to the substantive position, only ever inquiring about acting allowances, and that her Certificate of Service correctly reflects her substantive position at exit. 43 It is the Respondent’s case that the claim is fraudulent, being a device for unjust enrichment through false pretences, forged affidavit; that documents, the suit is and a false verifying ambiguous, wanting in particulars, discloses no reasonable cause of action, and was filed without prior demand or notice of intention to sue, rendering it premature. 44 The Respondent avers that the suit is incompetent and bad in law, time-barred under section 3(2) of the Public Authorities Limitation Act, and, in part, time-barred under section 90 of the Employment Act, 2007. On this basis, the Respondent prays that the suit be dismissed with costs. Evidence in Court 45 The Claimant (CW1) adopted her witness statement dated 26th August 2024 as her evidence in chief and produced her list of documents dated even date as her exhibits save for those excluded by Radido J (as he then was) being emails & organogram. Page 12 of 41

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46 During cross-examination, CW1 testified that it is incorrect that there was no concern with regards to her performance. She was issued a warning letter on 30 th May 2003 and in 2008; there is also an explanation letter of 2022. 47 She testified that the appointment letter to Acting position dated 6th April 2018 stated that the appointment was done pending filling of the position substantively. It does not promise a substantive position or salary rise. 48 CW1 testified that acting allowance could not be paid beyond 6 months as she was not issued any letter to continue acting beyond the period provided for. 49 CW1 testified that one Martha Kamanu was being appointed substantively to the position vide a letter dated 28th May 2020. However, the appointment was not ever announced and she only served for 2 months as in August 2020, as she was made a manager in another department. 50 She testified that her performance targets are included in the systems created by the Respondent. 51 It is CW1’s testimony that her resignation letter of 2024 indicates the resignation is due to unavoidable circumstances. The letter did not give any reason about threats, however, she has reported the threats to the security manager. Page 13 of 41

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52 On gender discrimination, CW1 produced a gender report which she testified that it covers the entire Respondent as a whole, it does not speak of her as an individual. Males are 80% and females are 20%. 53 The Respondent’s witness, Duncan Ndungu (RW1), stated that he is the Respondent’s Manager in charge of HR. He adopted his written statement dated 7th February 2025 as my evidence in chief, and produced the Respondent’s documents which were on the same day as exhibits (Ex 1 to 24). 54 During cross-examination, RW1 testified that the Claimant was Acting Chief Officer, National Contact Centre, Customer Service Division from 9th April 2018 to 27th May 2020. Subsequently, Ms. Kamanu was appointed to act vide a letter of appointment dated 28th May 2020. 55 RW1 testified that the Respondent began making acting allowance payments to the Claimant in March 2023. However, its memo dated 11th February 2019 and 23rd January 2023, state that the Claimant has been acting for the Post of In charge National Contact Centre, Central Office, with effect from 9th April 2018 to date. 56 RW1 confirmed that the Respondent started paying the Claimant’s acting allowance in March 2023, but backdated to January 2023. The allowance was paid up to the date Page 14 of 41

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she left service. From 2018 to 2024 she acted; there was an error on the letter. 57 It is RW1’s testimony that at the time the Claimant was in the Acting position, there was a government freeze on employment from mid-Aug 2017. Claimants’ Submissions 58 The Claimant submitted on six issues: whether the claimant was the acting Chief Officer in Charge of National Contact Centre continuously from 6 th April,2018 until 14th April,2024 and whether she is entitled to the Acting allowance; whether the claim for acting allowance for the period between 6th April, 2018 to 27th May,2020 and that between 28th May 2020 to 31st December,2022 are time barred by virtue of section 90 of the Employment Act,2007; whether the Claimant had legitimate expectation to be confirmed to the position of Chief officer in charge of National Call Center upon lapse of the six (6) months; whether the claimant was substantively confirmed to the position of Chief Officer in Charge of National Contact Centre by operation of law and therefore entitled to full pay; whether the Claimant was discriminated against on grounds of sex, nepotism and denied the right to career progression and whether the same amount to unfair labour practices in contravention of Article 41 of the constitution; and whether the Claimant is entitled to the prayers sought. Page 15 of 41

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59 On the first issue, the Claimant submitted that the Respondent’s own Staff Regulations and Procedures contemplate an acting appointment lasting no more than six months. Under Part IV of the Regulations, acting allowance is not payable beyond six months, which, according to the Claimant, necessarily presupposes that before the expiry of that period the employer will either appoint a substantive holder or identify a suitable replacement. 60 She submitted that the Respondent departed from its own policy by retaining her in an acting capacity for approximately six years while, for a substantial part of that period, withholding the corresponding acting allowance. 61 The Claimant relied on the Respondent’s evidence at trial, and submitted that RW1 expressly confirmed that she acted as Chief Officer in Charge of the National Contact Centre from 6th April 2018 until 14th April 2024. Further, the Respondent failed to provide a satisfactory explanation why she was neither substantively confirmed nor consistently paid the acting allowance. 62 The Claimant rejected the Respondent’s explanation that a government circular had frozen recruitment and appointments. She relied on the Respondent’s Auditor General’s Audit Report dated 12 th October 2022, which, Page 16 of 41

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she submitted, continued to demonstrated that the Respondent recruit promote employees and notwithstanding the alleged circular. In particular, the report showed that 36 employees were recruited and three others promoted to senior managerial positions in 2022. Therefore, the alleged recruitment freeze could not reasonably explain her prolonged acting appointment, particularly as the Respondent itself had the authority to determine her appointment and terms of service. 63 It was further submitted that the position of Chief Officer in Charge of the National Contact Centre was an existing and integral position in the Respondent’s structure and did not require creation of a new post. She thus argued that having already performed the substantive functions, the Respondent could simply have confirmed her. 64 She also challenged the Respondent’s attempt, vide a letter dated 6th January 2021, to designate the position as Customer Experience Officer in Charge of the National Contact Centre, arguing that the duties remained substantially those of the Chief Officer and that the change of title did not alter the substance of the work she performed. 65 The Claimant placed reliance on internal memoranda issued by the Respondent’s Human Resource Services Manager in January 2023, which acknowledged that she had been acting as Chief Officer in Charge of the National Page 17 of 41

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Contact Centre and advised that payment of the acting allowance should commence. She contended that this constituted an admission by the Respondent of the acting arrangement and demonstrated the absence of any legitimate basis for withholding the allowance for the preceding period. 66 The Claimant further relied on Clause C14 of the Human Resource Policies and Procedures Manual for the Public Service, which provides for acting allowance where an eligible officer is called upon to act in a higher post pending advertisement. She maintained that she satisfied the circumstances contemplated by the provision but was denied the allowance for the period from April 2018 to January 2023. 67 It is the Claimant’s submission that the prolonged acting arrangement, coupled with the unexplained failure to confirm her and the withholding of her allowance, constituted an unfair labour practice calculated to stagnate her career. She relied on Silas Kaumbuthu Mbutura v Meru Central Dairy Co-Operative Union Limited [2015] eKLR, where the Court found that retaining an employee in an acting capacity for an indefinite period, without a demonstrable attempt to substantively fill the position after the prescribed period, violated Article 41 of the Constitution. Page 18 of 41

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68 The Claimant also pointed to that RW1 conceded that the position had not been advertised because, according to the evidence, it was substantively held by her, and that she was qualified for the position. She submitted that the Respondent’s alternative suggestion that she was incompetent was inconsistent with its own conduct of allowing her to perform the duties for six years. T 69 The Claimant contended the Respondent’s argument that there was a government circular freezing appointment reasonably justify the its failure to explain her nonconfirmation, as it could not avail any evidence whether the same was communicated to the Claimant. Further, the purported circular was only availed at the hearing and the same had nothing to do with the already existing position within the Respondent’s workforce 70 In support thereof, she cited Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR), where the Supreme Court held that where administrative action adversely affects a person’s rights or fundamental freedoms, the affected person is entitled to written reasons. She argued that, having repeatedly sought reasons for her non-confirmation, she was entitled to be informed of the basis upon which the Respondent declined to confirm her. 71 The Claimant further relied on Edah Cherono Maiywa v University of Nairobi Enterprises Page 19 of 41 and Services

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Limited [2020] eKLR, where prolonged acting appointment and failure to fill the substantive position were found to constitute discrimination and unfair labour practices. 72 On the strength of these authorities, the Claimant maintained that the Respondent’s unexplained retention of her in an acting capacity for six years was neither fair nor consistent with its own employment policies. 73 On the withheld acting allowance, the Claimant submitted that the failure to pay acting allowance for more than six years not only perpetrated a violation of the claimant's right to fair labour practices but also denied her the right to fair remuneration under article 41 of the Constitution. The Respondent violated the claimant’s right to equal protection and equal benefits of the law protected under article 27(1) of the constitution. 74 Reliance was placed on Njoroge v Nairobi City Water and Sewerage Company Limited [2024] KEELRC 1135 (KLR): “On this score, I will follow the determination in the case of Kenya Shoe & Leather Workers Union vs Slapper Shoe Industries [2015] eKLR where the Court reckoned thus:“ The Court agrees with the Conciliator that by using the Grievants for prolonged periods of time in acting capacities, while paying them acting allowances, the Respondent engaged in unfair labour practices.” And further, in the case Page 20 of 41

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of Oyatsi vs Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR) (10 March 2022) (Judgment), the learned Judged renders himself as follows: “It is the court’s considered finding that the omission by the respondent for an inordinate period of more than six (6) years not only perpetrated violation of the petitioners right to fair Labour practices and the right to fair remuneration under article 41.” 75 The Claimant consequently maintained that the withholding of her acting allowance was a unilateral decision by the Respondent and was not justified by the alleged government circular. 76 On the second issue, the Claimant submitted that her claim relates to a continuing state of affairs. It constitutes a continuing breach and or harm which was not resolved during the pendency of her service and that the claim crystalized each and every month when the accrued allowances were not paid, as such, the claim for unpaid acting allowances for the period between 6 th April 2018 to May 2020 and the period between 28th May 2020 and 31st December,2022 are well within the time set out in section 90 of the Employment Act, 2007 having been filed on January,2025. 77 In support thereof, she cited The German School Society & another v Ohany & another [2023] KECA 894 (KLR), where the Court of Appeal held: Page 21 of 41

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“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury." 78 She further relied on Nganga v Christ the King Parish & another [2023] KECA 1100 (KLR), where the Court of Appeal explained that a continuing wrong arises from a continuous breach of an obligation imposed by law or agreement and constitutes an exception to ordinary limitation principles. 79 It is the Claimant’s submission that she continued to work under the same circumstances until her early retirement, thus, the breach complained of was of a continuing nature and crystalized at the time of her retirement in April 2024. 80 On the third issue, the Claimant relied on the Supreme Court decision Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Petition No. 14 of 2014, that legitimate expectation requires that there Page 22 of 41

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must be an express, clear and unambiguous promise given by a public authority; the expectation itself must be reasonable; the representation must be one which it was competent and lawful for the decision-maker to make; and there cannot be a legitimate expectation against clear provisions of the law or the Constitution. 81 It is the Claimant’s submission that her legitimate expectation arose not merely from an isolated promise but from the Respondent’s own Staff Regulations, Human Resource policies, past practice and conduct. Part IV of the Staff Regulations contemplated that an acting appointment would ordinarily be resolved within six months, while the Human Resource and Procedure Manual for the Public Service similarly contemplated substantive appointment following the prescribed acting period. 82 The Claimant submitted that it is a settled law that in a case where Respondent’s policies or a statute expressly provides for a particular action to be taken upon the lapse of an acting period, the court hardly moves past that in examining whether an expectation has been created. The policy and or the statute sufficiently creates a legitimate expectation for confirmation to the position. 83 It was submitted that the Auditor General’s audit report dated 12th October,2022 at page 4 and 5 confirms that in the year 2022, the Respondent recruited 36 new employees were recruited and promoted 3 others to senior Page 23 of 41

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managerial positions as she was retained in an acting capacity since 2018.She further argued that RW1’s testimony that there was a government circular stopping further recruitment is deceptive as is demonstrated by the audit report. 84 It is therefore her submission that the Respondent’s conduct demonstrated that the alleged restriction on appointments was not applied consistently and that she was subjected to a different standard from her colleagues thus breaching her expectation for confirmation. 85 The Claimant submitted that the respondent is bound by its own Human Resource Policies and Procedures Manual, the same way, the employees are bound to abide by its terms in their daily work disposition and behavior. Indeed, employees who fall foul of the provisions of the Human Resource Policies and Procedure Manuals would ordinarily be subjected to disciplinary action in terms of the manual. Equally, the respondent cannot be heard to say that they are at liberty to cherry pick what to adhere to and what not to respect in the manual. 86 In support of this position, she relied on Edah Cherono Maiywa v University of Nairobi Enterprises and Services Limited [2020] eKLR, where the Court held that the employer’s Human Resource Policy could not be wished away because it was founded on law and incorporated into the employees’ contracts of service. Page 24 of 41

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87 She similarly relied on Susan Khakasa Oyatsi v Judicial Service Commission [2022] eKLR, where the Court held that the Human Resource Manual was anchored in both the Employment Act and the Constitution and constituted an authoritative framework for human resource management. 88 The Claimant therefore maintained that her uninterrupted six-year service in the position, her qualifications, the Respondent’s policies and its own memoranda acknowledging her acting status cumulatively created a legitimate expectation of substantive appointment. 89 She also invoked section 45(5)(d) of the Employment Act, submitting that in determining whether it was just and equitable to recognize the expectation, the Court should consider the employer’s previous practice in dealing with similar appointments. Reliance was further placed on Keen Kleeners Limited v Kenya Plantation and Agricultural workers’ Union [2021] KECA 352 (KLR), citing Teresa Carlo Omondi v Transparency International [2017] eKLR, for the proposition that legitimate expectation may arise through regular practice or an express promise by an employer. 90 On the fourth issue, the Claimant submitted that the Respondent’s conduct amounted to discrimination contrary to section 5 of the Employment Act and Article 27 Page 25 of 41

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of the Constitution. Section 5(1), she argued, imposes an obligation to promote equality of opportunity in employment, while section 5(3)(a) prohibits direct or indirect discrimination against an employee on specified grounds, including sex. Article 27 correspondingly guarantees equality and freedom from discrimination. 91 The Claimant contended that the evidence demonstrated differential treatment in her remuneration and career progression. She relied on the Respondent’s witness’ concession that she had not been treated fairly and on evidence that previous office holders had received the remuneration attaching to their positions. She also relied on the Auditor General’s audit report dated 12 th October, 2022 findings that other employees acting in positions were confirmed, while some employees were retained in acting positions or periods exceeding 10yrs including herself. 92 The Claimant further submitted that the Auditor General audit report flagged irregular promotions. The report identified employees who had been promoted without satisfying the required period in their existing positions and who had been elevated by four grades, contrary to the Respondent’s Staff Regulations. 93 It was submitted that the report noted that skewed promotions lead to unfairness, staff disgruntlement and a culture of nepotism. The Claimant connected these Page 26 of 41

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findings to the alleged appointment of Ms. Kamanu as Chief Officer in Charge of the National Contact Centre, in 2020, contending that the appointment was merely a device to facilitate her subsequent transition to Business Development Manager while the Claimant continued performing the Chief Officer functions. 94 Reliance was placed on Edah Cherono Maiywa v University of Nairobi Enterprises and Services Limited (Supra), where the Court found discrimination where the claimant, unlike other employees who had acted in similar positions, was not given substantive appointment within a reasonable period. The Claimant argued that the same principle applied to her circumstances, as the Respondent’s failure to confirm her, despite confirming or promoting other employees, constituted differential and discriminatory treatment. 95 It is the Claimant’s submission that the Respondent violated section 5(3)(a) of the Employment Act, 2007 as read with article 27(4) of the Constitution by being subjected to less favorable terms of employment in terms remuneration and non-confirmation. By withholding the claimant’s dues and keeping her in the acting capacity for inordinately long period while other employees of equal or less qualification promoted, clearly were either confirmed demonstrated the of rapidly Respondent discriminatory practices. The conduct of the Respondent was discriminatory, unfair, and unlawful. Page 27 of 41

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96 On damages for underpayment and withheld allowances, the Claimant submitted that she had not been paid acting allowance from 6th April 2018 to 30th December 2022 and that the burden of proving payment lay with the Respondent. 97 She relied on Ndalut & another v Nairobi City Water & Sewerage Company Ltd [2025] KEELRC 425 (KLR), where the Court placed the evidential burden of proving payment of an allowance upon the employer once nonpayment had been asserted and the employer had the relevant records. The Claimant maintained that the Respondent had not discharged that burden. 98 It is the Claimant’s submission that the Respondent’s conduct amounted to slavery as the Claimant was subjected labour without commensurate remuneration. She was kept in an acting capacity for (6) years while actually performing the substantive duties of the office. As a consequence, the Clamant was exposed to untold financial hardship and dehumanizing working conditions which lead to her decision to take an early retirement. 99 The Claimant submitted that she ought to be duly paid the withheld underpaid salary, acting allowances, commuter allowance and pension benefit in the following terms; (Salary for the position of Chief Officer In-charge of the National Contact centre - Kshs 461,079) minus - (Received Page 28 of 41

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monthly salary Kshs 204,891) = 256,188 * 12*6=Kshs18,445,536. 100 On unpaid allowances, the Claimant submitted that she entitled to the same for the period between 6 th April 2018 to 30th December 2022 calculated at 25% of her basic salary of Kshs.204,891 for five years. 101 On compensation for breach of legitimate expectation, the Claimant relied on the equitable principle stated by the Court of Appeal in Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] eKLR that: “If the circumstances are such as to raise an equity in favour of the plaintiff and the extent of the equity is known, and in what way it should be satisfied, the plaintiff is entitled to succeed.” 102 On this basis, and having maintained that she was substantively performing the duties of the Chief Officer, she claimed the remuneration attaching to the office, calculated at Kshs.461,079 per month for six years, amounting to Kshs.33,197,688. 103 As compensation for discrimination, the Claimant submitted that the prolonged acting appointment and denial of acting allowance subjected her to treatment different from that accorded to her colleagues. 104 She urged the Court to exercise its discretion to award general damages, relying on Page 29 of 41 Ol Pejeta Ranching

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Limited v David Wanjau Muhoro [2017] eKLR and V.M.K vs CUEA (2013) eKLR, where substantial damages were awarded for discriminatory treatment. She also relied on County Government Workers Union v Narok County Government & another [2021] eKLR, where Kshs.1,000,000 was awarded for violation of the right to fair labour practices. 105 On costs, the Claimant submitted that although costs ordinarily follow the event, section 12(4) of the Employment and Labour Relations Court Act empowers the Court to make orders as to costs. She argued that the proceedings had been necessitated by the Respondent’s alleged failure to deal fairly with her employment, protect her labour rights and comply with its statutory and internal obligations, and therefore urged the Court to award her the costs of the cause. Respondent’s Submissions 106 On whether the Claimant acted continuously and is entitled to acting allowance, the Respondent submitted that the Claimant did not act continuously for six years. It relied on the appointment letter of 28th May, 2020 appointing one Martha Njeri Kamanu as Acting Chief Officer, submitting that this document was not challenged in cross-examination and thus stands uncontroverted. Page 30 of 41

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107 It is the Respondent’s submission that the letter established that the Claimant's acting tenure fell into two distinct spells, 9th April 2018 to 27th May, 2020 and 1st January, 2023 to 14th April, 2024, with an intervening gap of some thirty-one months during which she was not the acting office holder. 108 It argued that the Claimant's assertion that Martha Njeri's appointment was a mere two-month transitional device, during which she herself continued discharging the role, was an unsupported oral assertion that could not displace contemporaneous documentary evidence, and that the Court ought to prefer the latter. 109 On acting allowance, the Respondent submitted that the allowance for April to October 2018 had been settled under the February 2019 authorization memo pursuant to the six-month period contemplated by Part IV(c) of its Staff Regulations and Procedures. The allowance for January 2023 to April 2024 was paid monthly and evidenced by fifteen authorization memos, and that no allowance arose for October 2018 to May 2020 in the absence of the special approval for extension required under Part IV(d) of the Regulations, nor for the period the Claimant was out of the acting role altogether. 110 On whether the claim for acting allowance for the period between 28th May 2020 to 31st December, 2022 is time barred, the Respondent submitted that the claim is barred Page 31 of 41

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by section 90, now section 89, of the Employment Act, 2007. Section 90 of the Employment Act requires a claim founded on continuing injury or damage to be instituted within twelve months after cessation of the injury. 111 In support of this position, it cited Bob Morgan Services Limited v Omulepu [2026] KEELRC 1612 (KLR), “In addressing the concept of a continuing injury, the Court of Appeal in The German School Society & another v Ohany & another [2023] KECA 894 (KLR) held as follows: “The principles underlying continuing wrongs and recurring/successive wrongs have been applied in employment disputes. A ‘continuing wrong’ refers to a single wrongful act that results in a continuing injury, while ‘recurring or successive wrongs’ are those that occur periodically, with each instance giving rise to a distinct and separate cause of action.” 112 Reliance was further placed on G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR for the proposition that a continuing-injury claim must be filed within twelve months of cessation of the injury. 113 Applying these authorities, the Respondent submitted, first, that there could be no continuing injury for a period in which the Claimant held no acting appointment at all; second, that monthly non-payment constituted successive wrongs each giving rise to a separate, independently timePage 32 of 41

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barred cause of action; and third, that the doctrine could not in any event rescue a claim built on the disputed factual premise of continuous acting service. 114 On confirmation by operation of law, the Respondent submitted that neither its Staff Regulations, statute, nor the Constitution supported automatic confirmation upon lapse of six months of acting service. It argued that Part IV(c) merely obliged the employer to find a replacement or confirm the officer within six months, without providing that default converted the acting appointment into a substantive one. Part IV(d), expressly permitted extension of acting service beyond six months with special approval, would be rendered redundant were automatic confirmation the rule. 115 It placed principal reliance on Gicheha v Nairobi Water and Sewerage Co. Ltd [2024] KEELRC 1984 (KLR), where the Court held that "Second in law, an acting appointment is neither promise/representation by a promotion nor a the employer that the appointee will get the position. It is just that, acting and that is one of the reason why the law and practice limits the duration unless extended with justification…………..Third, contrary to the Petitioner’s counsel’s submission that long period the Petitioner has acted qualifies him for constructive confirmation to the position or be entitled to the remuneration attached to the position or office, the law does not recognize appointment Page 33 of 41

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or promotion by constructive confirmation in the post Constitution of Kenya, 2010 era which promotes the principle of fair competition in the public service.” 116 On that basis, it was submitted that confirming the Claimant by reason of the duration of her acting service, without competitive recruitment, would circumvent Article 232(1)(g) of the Constitution which enshrines fair competition and merit as the basis for all public service appointments, rendering the claim for MG06 salary arrears of Kshs 33,197,688 unsustainable. 117 The Respondent distinguished Oyatsi v Judicial Service Commission [2022] KEELRC 3 (KLR), submitting that the confirmation there turned on an express provision of the Judiciary's own Human Resource Manual with no equivalent in its own Staff Regulations, such that the Claimant could not import another employer's policy into her contract. 118 On legitimate expectation, it was submitted that no legitimate expectation applying the of four-part confirmation test in crystallized, Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2015] KESC 13 (KLR) “legitimate expectation requires an express, clear and unambiguous promise by a public authority; a reasonable expectation; a lawful representation; and no conflict with clear provisions of law or Constitution.” . This test was also Page 34 of 41

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applied in Gicheha v Nairobi Water and Sewerage Co. Ltd [2024] KEELRC 1984 (KLR). 119 The Respondent argued that none of these elements was met: the appointment letter was explicit that the position was temporary pending substantive filling and contained no promise of confirmation; the expectation could not be reasonable given that Part IV(d) expressly contemplated acting beyond six months; and any direct confirmation without competitive process would itself be unlawful under Article 232(1)(g) of the Constitution, such that legitimate expectation could not arise against clear constitutional provision. 120 On the cumulative unpaid salary and allowance, the Respondent submitted that, having never been substantively confirmed, the Claimant had no entitlement to the MG06 salary of Kshs 461,079 per month, an acting officer being entitled only to the acting allowance and not the remuneration of the substantive office; her computation of Kshs 33,197,688 was accordingly premised on the erroneous assumptions of continuous acting service and constructive confirmation. 121 On the allowance claim of Kshs 3,073,365, it was submitted that this too assumed five years of continuous non-payment contrary to the documented record of payments for April–October 2018 and January 2023–April 2024, and that the residual period was in any event timebarred. Page 35 of 41

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122 On discrimination, the Respondent submitted that the Claimant had failed to establish discrimination under section 5 of the Employment Act, 2007 and Article 27 of the Constitution, relying on Peter K. Waweru v Republic (2006) KLR, which described discrimination as affording different treatment to persons of a particular description subjected to restrictions or denied privileges not applied to others, and on Edah Cherono Maiywa v University of Nairobi Enterprises and Services Limited [2020] eKLR, which required proof of differential treatment "without any objective and reasonable justification" of persons in similar situations. 123 It argued that the Claimant identified no specific comparator, that the Auditor-General's report addressed the Respondent's wider workforce without reference to the Claimant, the National Contact Centre, or the impugned decisions, and that no evidence linked Martha Njeri Kamanu's appointment to nepotism or any decision affecting the Claimant to her gender. The Respondent distinguished Edah Cherono Maiywa (Supra), submitting that the discrimination finding there rested on comparative evidence that other acting officers were confirmed while the claimant alone was not,evidence it argued was absent here. 124 On the Claimant's authorities and quantum, the Respondent accepted that Silas Kaumbuthu Mbutura v Page 36 of 41

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Meru Central Dairy Co-Operative Union Limited [2015] eKLR recognised that an inordinately prolonged acting period may found an unfair labour practice under Article 41 of the Constitution, but distinguished it on the basis that the acting period there spanned eighteen years against the Claimant's aggregate of some three years and three months, and that the remedy awarded was Kshs 300,000, not substantive salary arrears. 125 It submitted that Gicheha (Supra) and Njoroge v Nairobi City Water and Sewerage Company Limited [2024] KEELRC 1135 (KLR) likewise supported compensation rather than confirmation or substantive pay, and that it had discharged the burden of proving payment identified in Njoroge through fifteen authorization memos. For the periods outside those memos, the Respondent's case is that no allowance was owed, because the Claimant was either not in post or the claim is time-barred 126 In the alternative to dismissal, the Respondent urged that any award be proportionate to the authorities cited specifically Kshs 300,000 in Silas Kaumbuthu Mbutura (Supra), Kshs 500,000 in Gicheha (Supra), and Kshs 750,000 in Njoroge (Supra). 127 The Respondent further submitted that given the shorter acting period in issue, be confined to a sum not exceeding Kshs 500,000, the aggregate claim of over Kshs 43 million Page 37 of 41

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is thus disproportionate to both the evidence and the applicable authorities. 128 On constructive dismissal and the Certificate of Service, the Respondent submitted that the Claimant's departure was a voluntary early retirement and not a constructive dismissal, relying on her letter of 16 th January, 2024 attributing her exit to certain unavoidable personal reasons and stating that but for those reasons she would have never preferred to leave. It argued that these statements were silent on demoralization, discrimination, withheld salary, or threats to her safety, and inconsistent with her later evidence. 129 It further submitted that the Claimant had not sought substantive appointment but had only inquired about the acting allowance, and that the Certificate of Service correctly reflected her substantive designation as Customer Experience Officer I rather than a temporary acting role never substantively confirmed, with no evidence of any opportunity lost as a result. 130 I have examined all the evidence and submissions of the parties herein. The employment relationship between the claimant and the respondent is not denied. It is also not in contention that the claimant was appointed to in acting position and in charge National Contact Center on 6/4/2018 vide a letter dated the same date. Page 38 of 41

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131 The acting appointment was made “ pending substantive filing of the position”. On 9/8/2018 she wrote to the respondents to clarify on the duties of the office and other expectations from her. The respondents wrote to her vide a letter of 2/10/2020 indicating her duties and roles. The letter in question was referenced Delegation of Authority. She was referred to as the Customer Service Officer 1 National Contact Center. 132 My understanding of the later letter is that all previous engagements had been superseded by the letter of 2/10/20 which in effect brought to an end the appointments previously in force. 133 It is however true that between 6/4/2018 the said date 2/10/20, she remained as acting in charge of the National Contact Center central office and was therefore entitled to an acting allowance. She had requested for this acting allowance vide her letter of 9/8/2018 to which the respondents never responded. 134 The claimant produced a letter of 27 th December 2019 which shows the respondent’s decision to adjust her basic salary to kshs 196,896.00 on salary scale MG09 with effect from 1/1/2020 but no acting allowance was included. 135 The letter of the claimant to respondent dated 30/1/2023 however indicate that she was paid an acting allowance for 6 months and not for the other months which Page 39 of 41

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cumulatively are 30 months to 2/10/2020. With the letter of 2/10/2020, it appears that the acting position changed. Section C14(1) of the respondent’s HR manual provides for payment of acting allowance equivalent to 20% of the officer’s substantive basic salary and this is limited to 6 months. However, where the respondent let the claimant continue to act beyond the 6 months, then they are liable to pay her and cannot continue to rely on their own manual and benefit from their own mistake. 136 The respondents have raised the issue of the payment in question being time barred. It is my view that the none payment of the acting allowance was always raised by the claimant and she promptly filed this claim in 2024 upon her retirement in same year. 137 The claim in my view falls under a continuous injury which she constantly raised and was denied. I do find that the claimant is entitled to the 30 months’ acting allowance which translates to 30x20/100x205,880= kshs 1,235,280. 138 In another memo of the respondent dated 11 th March 2023, the respondents confirmed by the RW1, was performing the post of acting in charge of National Contact Center with effect from 9 th April 2018 to date (March 2023). Additionally RW1 indicated that they paid the acting allowance from January 2023. Additionally, then I find based on this admission that the claimant is entitled to the acting allowance to December 2022 which adds to Page 40 of 41

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another 26 months = 26x20/100x205,880=1,152,928/-. Total acting allowance not paid then totals = kshs 2,388,208/- less statutory deductions. 139 As concerns other claims for discrimination, this has not been proved and is therefore disregarded. The claim for confirmation to a substantive position is also found without merit given the government policy on employment which the respondent was bound to adhere to. 140 The respondents will also pay costs of this suit plus interest at court rates with effect from the date of this judgment. Dated, Signed and Delivered virtually at Nairobi this 29 th Day of September 2026. HELLEN WASILWA JUDGE Page 41 of 41

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