https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1896

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATION COURT AT NAIROBI JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION ELRC PETITION NO. E171 OF 2025 IN THE MATTER OF THE VIOLATION AND/OR THREATENED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 27, 28, 41, AND 47 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE EMPLOYMENT ACT OF 2007 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT 2015 BETWEEN JAMES ASIEMA ELEDI…………...............................................................PETITIONER -VERSUS- THE PRINCIPAL SECRETARY, STATE DEPARTMENT OF IMMIGRATION & CITIZEN SERVICES…………………....................1ST RESPONDENT PUBLIC SERVICE COMMISSION……………...…………………….…2ND RESPONDENT ATTORNEY GENERAL…………………………………………………...3RD RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The petitioner was aggrieved by the lack of a salary increase on promotion and was dissatisfied with the respondents' response. He filed a petition dated 29th August 2025, seeking the following relief:- a. A Declaration that the Respondent’s conduct towards the Petitioner was tantamount to a violation of the Petitioner’s right under Article 41 of the Constitution. b. A Declaration that the Respondent’s conduct towards the Petitioner was discriminatory; c. Damages for violation of the Right to Fair labor practice under Article 41 of the Constitution. d. Damages for discrimination and mental anguish e. Unpaid Underpayment areas of Salary ………………...……….Kshs. 246, 450.00 f. Unpaid Underpayment areas of House Allowance……..……….Kshs. 279, 200.00 g. Unpaid Underpayment areas of Commuter Allowance……….….Kshs. 49, 000.00 Total Areas…………………..………………………………………..Ksh. 574, 650.00 h. General Damages i. Costs of the Suit j. Interest on (c), (d), (e), (f), (g) and (h)above k. Any such other or further relief as this Court may deem fit and just to grant. 2. The petitioner filed his affidavit dated 29th August 2025 in support of the petition, attaching as evidence a copy of the promotion letter dated 16th April 2020, complaints regarding underpayment of salary through his letters dated 24th April 2020 and 29th July 2020, a copy of the second respondent’s letter dated 18th June 2020 guiding his payment after promotion, demand letters concerning the underpayment through letters dated 14th November 2024, 30th December 2024, 2nd January 2025, 4th February 2025, 12th January 2025, and 14th April 2025. The petitioner further submitted a complaint to the Commission on Administrative Justice via a letter dated 27th March 2023. The second respondent responded to the Commission on Administrative Justice through a letter dated 24th July 2024. The first respondent, in a letter dated 10th March 2025, replied to his advocate regarding the demand letter. All the foregoing correspondence is annexed to the affidavit. The petitioner also annexed copies of salary review reports for the years 2019, 2019,2020, 2023, and 2024, as well as payslips covering the period from January 2020 to June 2025. He alleged that his file had been misplaced to frustrate him, as stated in a letter dated 4th November 2024. Response 3. The 2nd respondent filed a response to the petition via a replying affidavit from Paul Famba, its Secretary/CEO, dated 28th October 2025. The affidavit noted, in summary, that they were aware of the claim and had instructed the 1st respondent to hold a meeting with the petitioner to reconcile the figures. Mr. Famba stated that they believed the dispute could be resolved through reconciliation of the figures by the parties, as from the documents relied on by the petitioner, the underpayment could not be discerned since there was no breakdown of the relevant period or the underpayment for that period. 4. The 1st respondent filed a reply affidavit of Christine Manene, who stated that the arrears on underpayment had been tabulated and paid, and she even provided the basis of the computation. She annexed supporting documents. Rejoinder 1. The petitioner filed a further affidavit in response to the affidavit of Christine Manene and Paul Famba, attaching what he asserted was the correct computation of the underpayment as JAE2 dated 4th February 2025, along with other related correspondence. **The Petitioner’s case in summary** 1. The Petitioners case is that he was employed by the 1st Respondent under P/No. 1990141642 in grade CSG/12/Job Group H at a monthly salary of Kshs. 31,340/-. On 29th January 2020 the petitioner was promoted to a Civil Registration Assistant II, grade CSG II/Job Group J. but his salary was retained at Kshs. 31,340/- per month. The Petitioner states that he complained about the salary underpayment vide letters dated 24th April 2020 and 29th July 2020, and in response thereto, the Public Service Commission, the 2nd Respondent herein, in their letter referenced as Ref No. PSC/GEN/2VIII (69) dated 18th June 2020 which was addressed to the Principal Secretary State Department for Interior and Citizen Services, provided a clear guidance on how the Petitioner’s Salary was to be determined upon his promotion to grade CSG II/Job Group J. They also demanded that the authorized officer in the office of the Principal Secretary State Department for Interior and Citizen Services reports back to them on action taken within 14 days. Following the 2nd Respondent’s intervention, the Petitioner’s salary was adjusted from Kshs. 31,430 to Kshs. 41, 260 per month with effect from January 2021. It is the Petitioner’s case that he was underpaid from January 2020 to December 2021. 2. It is averred that the Petitioner was thereafter promoted twice: to Grade CSG 10/Job Group ‘K’, effective 12th May 2021; and later to Grade CSG 9/Job Group ‘L’, effective 24th July 2024. The Petitioner’s complaint is that despite the Respondents’ guidelines and procedures which provided that an officer’s remuneration should be adjusted accordingly following a promotion, the 1st Respondent willfully failed, refused, and/or neglected to pay him the correct salary and allowances, despite persistent follow-ups, including vide a formal demand letters dated 14th November 2024, 30th December 2024, 2nd January 2025, 4th February 2025, 12th January 2025 and 14th April 2025. He also complains that at one point, he stagnated at one job group for a period of 14 years whereas other officers in the Civil Registry department where he works were being promoted. 3. The Petitioner contended that he raised a complaint to the Commission on Administrative Justice (The Ombudsman) vide a Letter dated 27th March 2023, and the 2nd Respondent submitted a response acknowledging that he was erroneously designated to the grade of Assistant Social Development Officer 11 (CSG 11/Job Group J) instead of Assistant Social Development Officer 1 (CSG 10/Job Group K). Further the 1st Respondent wrote a letter dated 10th March 2025 to the Petitioner’s counsel on record admitting that there have been a lot of glaring, gaps, irregularities and inconsistencies detected on the correct salary entry points and annual increments in the Petitioner’s previous promotions which were caused by errors of omission or commission on their part. They, however, did not exhaustively and conclusively address the issue of the Petitioner’s underpayment of salary and allowances. 4. It is the Petitioner’s case that, while salaries for civil servants are reviewed according to the Salary Review Reports for Civil Servants in the National Government, the 1st Respondent completely disregarded the Salary Review Reports of 2019, 2020, 2023, and 2024 when determining the Petitioner’s salary after his promotions, and failed to make the necessary adjustments. Conversely, all other civil servants were paid in accordance with the public service salary review report and the review salary guide for civil servants in the National Government. The Petitioner highlights that his Pay-Slips for the period from January 2020 to June 2025 clearly indicate payment discrepancies and underpayments, which did not comply with the salary review reports and review scale. He was never paid salaries corresponding with his adjusted Job Groups. The Petitioner asserts that it became necessary to demand the underpaid salaries and allowances, as he was set to retire on 31st August 2025. 5. The Petitioner asserted that he was discriminated against to the extent that his promotions from Job Group H to Job Group J in January 2020, from Job Group J to Job Group K in May 2021, and from Job Group K to Job Group L in July 2024, were not accompanied by corresponding salary changes. He emphasises that he was treated unequally to other officers under the same Job Group as him, who would receive the appropriate treatment, contrary to Article 27 of the Constitution. The Petitioner also argues that the Respondents ignored the principle that compensation must be commensurate with rank, duties, and responsibilities, and deprived the Petitioner of his rightful benefits. The Petitioner coined the phrase economic discrimination in respect to his treatment by the 1st Respondent. It is averred that the conduct of the Respondents resulted in indirect discrimination, since the Petitioner was unfairly singled out through administrative neglect, and denied salary increments that were automatically applied for other similarly promoted officers. 6. The Petitioner also urged that in as far as the 1st Respondent failed to immediately effect the Petitioner’s new salaries after promotion and continued to delay salary adjustments following his various promotions, the Respondents deliberately violated his Constitutional right to fair labour practices under Article 41 (1) and (2), which includes the right to fair remuneration, reasonable working conditions, and equal opportunity for advancement. He states that the delay and lack of transparency, despite formal follow-ups and even after clear instructions from the Public Service Commission, further exacerbates the violation of the constitutional right to fair labour practices under Article 41(1) and 41(2) of the Constitution. He further states that his career progression and pension rights have been undermined. **1st Respondent’s case in brief** 1. The Respondents admitted that the Petitioner is an employee of the 1st Respondent having been appointed into the service as a Clerical Officer, Job Group 'D' with effect from 8th October 1990, and rising the clerical cadre to the grade of Senior Clerical Officer, Job Group H/CSG 12 with effect from 1st January 2007. They confirm that following a MHRMAC meeting of 17th March 2016, the Petitioner was re-designated to the grade of Civil Registration Assistant III, Job Group 'H'/CSG 12. Subsequently, vide a MHRMAC meeting held on 29th January 2020 the Petitioner was promoted to the grade of Civil Registration Assistant II CSG 11 Job group 'J' earning a salary of Kshs. 31,430/- per month. 2. It is further admitted that the Public Service Commission (PSC) re-designated the Petitioner to the grade of Assistant Social Development Officer II CSG 11 Job Group "J" with effect from 12th May 2021 and this re-designation was communicated to the Petitioner vide a letter dated 13th July 2021. The Petitioner was again promoted to the grade of Civil Registration Assistant I CSG 10/Job Group 'K' with effect from 12th May 2021 by the Public Service Commission, and the promotion communicated to him vide a letter dated 4th November 2024. It is confirmed that the same PSC letter promoted the officer to his current grade of Senior Assistant Social Development Officer CSG 9/Job Group 'L' with effect from 24th July 2024, and the same was further communicated to him vide a letter dated 22nd January 2025. 3. The 1st Respondent admits that after the Petitioner’s 2020 promotion, he filed a complaint with the Public Service Commission claiming that his salary progression was not properly effected following the letter dated 24th April 2020. The PSC, under a letter Ref No. PSC/GEN/GEN/2NIII (69) dated 18th June 2020, asked the State Department to review the complaint and determine the officer's salary and incremental date. In response, the State Department sent a letter Ref. No. 1990141642/163 dated 7th July 2020, confirming that the salary progression was correctly processed, noting the Petitioner’s entry point was Kshs. 31,430/- per month and his incremental date was 1st July 2020. 4. The 1st Respondent confirmed that the Petitioner was informed vide a letter Ref.1990141642/192 dated 5th March 2025 that the salary was progressed and computed using the Human Resources instruments starting with his promotion to Job Group 'F' /CSG 14 with effect from 29th July 2020. Specifically, he was informed that his salary on promotion to Job Group J/CSG II with effect from 29th January,2020 was Kshs. 31,430p.m; and it increased to Kshs. 38,270/- per month upon his promotion to Job Group K/CSG 10 with effect from 12th May 2021. He was notified that the alleged salary of Kshs. 41,260/- per month which was reflected on the pay slip as at 15th January 2021 was erroneous and had been corrected. 5. The 1st Respondent confirmed that there were some arrears due to the Petitioner amounting to Kshs. 119,814/- but states that they were paid together with the salary of the month of March 2025. The 1st Respondent tabulates the arrears as follows: A. Basic Salary Overpayment 15th January 2021-30th April 2021 Paid 41,260/= Due 33,950/= Total 7,310 x 4 months =Kshs. 29,240/= May 2021-April 2022 Paid 41,260/= Due 38, 270/= Total 2,990 x 12 months =Kshs. 35,880/= May 2022 -April 2023 Paid 41,260/= Due 39,740/= Total 1,520 x 12 months=Kshs. 18,240/= Total overpayment Kshs. 83,360/= May 2023 Paid/due Kshs.41,260/= B. Underpayment July 2023-April 2024 Paid 41,260/= Due 42,690/= Total 1, 430 x 10 months=Kshs.14,300/= May 2024-June 2024 Paid 41,260/= Due 44,400/= Total 3,140 x 2 months=Kshs. 6,280/= 1st July 2024- August 2024 Paid 42,690/= Due 46, 120/= Total 3,430/= x 2 months=Kshs. 6,860/= September 2024-December 2024 Paid 44,410/= Due 48,048/= Total 3,630 x 4 months=Kshs. 14,520/= Total Underpayment Kshs. 41, 960/= January 2025 Paid/due 48,040/= C. Commuter Allowance Underpayment 12th May 2021-24th July 2024 Paid 4, 000/= Due 5, 000/= Total 1,000 x37 months=Kshs. 38,419/= 25th July 2024-December 2024 Paid 4,000/= Due 6,000/= Total 2,000 x 37 months= Kshs. 10,452 Commuter Allowance Underpayment= Kshs. 48,870/= D. House Allowance Underpayment 12th May 2021-24th July 2024 Paid 5,800/= Due 7,500/= Total 1,700 x 37 months= 62,900 20/31 x 1, 700= 1,096 24/31 x 1,700= 1,316 Kshs. 65,312 25th July 2024- December 2024 Paid 7,500 Due 16,500 Total 9,000 x 5months = 45,000 7/31 x 9,000 =+2.032 Kshs. 47,032 House Allowance Total Underpayment= Kshs. 112,344 Summary of Payment Basic Salary Overpayment 83,360 Basic Salary underpayment 41,960 Commuter Allowance Underpayment 48,870 House Allowance Underpayment 112,344 Total Underpayment -Kshs. 119,814.00 Difference:- 203,174 - 83,360 = 119,814.00 Payment Due: Kshs. 119,814.00 1. On the issue of the Petitioner’s retirement, the 1st Respondent avers that the Petitioner provided all the requisite documents for processing of his retirement benefits as he was due to exit the service effective 31st August 2025. His claim was duly prepared and submitted to the Pension Department of the National Treasury on 15th October 2025 and the Petitioner has been making follow ups. The 1st Respondent is emphatic that the allegations raised by the Petitioner are untrue as evidenced by the promotion letters, pay slips, Salary Reviews from the Ministry of Public Service, Performance and Delivery Management State Department for Public Service, and the Human Resource Policies and Procedures Manual (May 2016), all produced by the 1st Respondent. **2nd Respondent’s case in brief** 1. The 2nd Respondent’s case is that it approved organization structure and establishment for the Civil Registration Department on 12th May 2021 resulting in promotions and re- designations of staff at the department. At the time the promotions were effected, the Petitioner was serving as Civil Registration Assistant II, CSG 11 with effect from 29th January 2020 and was expected to transit to Civil Registration Assistant I, CSG 10 and thereafter be re-designated to Assistant Social Development Officer, CSG 10. 2. It is averred that the Commission was erroneously sent information by the Civil Registration Department indicating that the Petitioner was serving as a Civil Registration Assistant III, CSG 12. This affected the transition and subsequent promotion. 3. The 2nd Respondent admits that the Petitioner appealed against his wrongful promotion/re-designation, and the Commission reviewed its decision and resolved that: the Petitioner be deemed to have been promoted to the grade of Civil Registration Assistant 1, CSG 10 with effect from 12th May 2021; the Petitioner’s earlier re-designation to Assistant Social Development Officer I, CSG 10 instead of Assistant Social Development Officer I, CSG 11, be varied with effect from 12th May 2021; the Petitioner be promoted to the grade of Senior Assistant Social Development Officer, CSG 9 with effect from 24th July 2024. 4. On the Petitioner’s claim for payment of underpaid salaries and allowances amounting to Kshs 574,650.00, the 2nd Respondent states that the quantum of salaries paid to public officers is guided by salary review reports issued by government from time to time. They acknowledge that the Petition has produced and relied on the following salary reports: The Implementation of the Job Evaluation Report : Phase III Salary Review For Civil Servants in the National Government dated 1st July 2019, issued by The Ministry of Public Service; The Implementation of Phase II Remuneration and Benefits for Civil Service in the National Government for the Third Remuneration Review Cycle 2021/2022-2024/2025 dated 1st July 2024, issued by the Ministry of Public Service; and The Implementation of the Job Evaluation Report: Phase IV Salary Review for Civil Servants in the National Government dated 1st July 2019, issued by the Ministry of Public Service. The 2nd Respondent confirms that the produced reports set out the entry salary for each grade/job group and the progression, with each report applying from the date it is issued, not retrospectively. 5. Applying the reports to the Petitioner’s case, the 2nd Respondent confirms that the decision to vary the Petitioner's promotion was made in July 2024 but the effective date was deemed to be 2021. The three reports were therefore applicable from 2021-2024. 6. The above being said, the 2nd Respondent criticizes the Petitioner’s failure to provide a breakdown of underpayments for the applicable period. The 2nd Respondent’s provides its own analysis and states that from the documents submitted by the Petitioner, the entry salary for grade CSG 10, job group K for which he was deemed to have been promoted in May 2021 was Kshs. 38,270/- and he would be entitled to annual increments. Upon promotion to CSG 9 Job Group L in July 2024, the entry salary would be Kshs. 44,400/- as contained in the Review of July 2023. It is averred that the Commission has the authority to ensure that the Petitioner is paid the salaries and allowances due to him on promotion in the interest of fairness, but he has failed to provide sufficient documentary material to warrant such an order. 7. However, they clarified that vide a letter reference PSC/GEN/7/III/(72) dated 10th July 2025, they directed the State Department to organise a meeting with the Petitioner for purposes of reconciliation of the figures, and are optimistic that this dispute is capable of resolution after such reconciliation of figures. DETERMINATION 1. Following directions by the court that parties should file written submissions, the parties complied. Issues for determination 1. In his submissions dated 7th March 2026, the Petitioner identified the following issues for determination: - * 1. Whether the Respondents violated the Petitioner’s right to equality and freedom from discrimination under Article 27 of the Constitution. * + 1. Whether the Respondents violated the Petitioner’s right to fair labour practices under Article 41 of the Constitution. * + 1. Whether the Petitioner is entitled to the salary and allowances arrears claimed. * + 1. Whether the Petitioner is entitled to damages and the reliefs sought in the Petition. 2. What Orders should be made as to costs 1. On their part, the 1st Respondents identified the following issues for determination in their submissions dated 30th March 2026, namely: * 1. Whether the Petitioner has proved that any salary or allowance arrears remain due and owing from the 1st Respondent. 2. Whether the Petitioner has proved that the 1st Respondent violated his rights under Articles 27, 41 and 47 of the Constitution. 3. Whether the Petitioner is entitled to the declarations, damages and monetary reliefs sought in the Petition 2. The 2nd Respondent submitted generally on the Petition in their submission dated 14th May 2026. 3. The court discerned the issue to be whether the petition had merit. However the court further found that the dispute ought to be first determined by the Public Service Commission which has Constitutional mandate to determine the grievance by the petitioner. Preliminary Decision 1. The court found the claimant was a public servant, being an employee of the 1st respondent. He is dissatisfied with the employer's payment of his salaries alleging underpayment post-promotion. The court finds that the 2nd respondent has constitutional power under article 234 (2)d) of the Constitution to resolve the dispute — ‘d) investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;’ 2. Section 60 of the Public Service Commission Act states- ‘The Commission may, upon a complaint or on its own motion, investigate the organisation, administration and personnel practices of the public service.’ Personnel practices include remuneration and conditions of service. I find the claim for underpayment falls under the section 60. 3. IT was held in **Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Petition No. 14, 14A, B & C of 2014,**the Supreme Court delivered itself thus on the issue:- **“[256] The appellants in this case are seeking to invoke the** “principle of avoidance”,**also known as**“constitutional avoidance”**. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided**on another basis**. In South Africa, in** S v. Mhlungu, 1995 (3) SA 867 (CC) **the Constitutional Court, Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:** “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” The instant dispute on payable salary can be resolved by the 2nd respondent under its mandate. 1. The court invokes Rule 56 of the ELRC Rules (2024) and refers the dispute for resolution by the Public Service Commission. The 2nd respondent to file its decision in court within 45 days. Mention on the 21st September, 2026. final orders of the court, including on the issue of whether there was a violation of constitutional rights and remedies. 2. It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner – Njagi 2nd Respondent: -Ms Iseme