Nthurima v Teachers Service Commission & 2 others (Employment and Labour Relations Petition E184 of 2025) [2026] KEELRC 1316 (KLR) (20 May 2026) (Judgment)

Nthurima v Teachers Service Commission & 2 others (Employment and Labour Relations Petition E184 of 2025) [2026] KEELRC 1316 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1316 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E184 of 2025 JK Gakeri, J May 20, 2026 Between Moses Nthurima Petitioner and Teachers Service Commission 1st Respondent Salaries and Remuneration Commission 2nd Respondent The Hon Attorney General 3rd Respondent Judgment 1.The Petitioner, a teacher, who is also an advocate of the High Court of Kenya, is employed by the 1st Respondent. His point of contention is that there exist teachers employed by the 1st Respondent to its secretariat, who are at the same level with teachers not serving in the secretariat, but whose salaries differ. He avers that the disparity is contrary to the legitimate expectation of the teachers in the same grade not serving in the secretariat. He describes the disparity as oppressive, unjust, unwarranted, ill-advised and discriminatory hence unconstitutional. He contends that the discrimination and unfair treatment curtails the affected teachers’ ability to access and enjoy their entitlements and benefits such as full mortgage. He adds that it also amounts to indirectly or directly varying the benefits payable to teachers in violation of Article 249 of the Constitution. He contends that it has further resulted in grave absurdity where some teachers of extremely less experience are earning more than teachers who were appointed much earlier. 2.He outlines the particulars of breach of constitution as breach of the principle of transparency and fairness by prescribing unequal pay; the 2nd Respondent failure to advise the 1st Respondent, acts in breach of Article 230(4) of the Constitution; failure by the 2nd Respondent to recognize productivity and performance, is unreasonable and has a potential of demoralizing teachers leading to poor performance; the 2nd Respondent’s actions have openly encouraged unfair discrimination in violation of Article 47 of the Constitution and is in violation of the principles under Article 10 of the Constitution through wilful failure to uphold human dignity, equality, human rights, non-discrimination, transparency and accountability. 3.Resultantly, the Petitioner seeks the following reliefs:i.A declaration that paying teachers employed by the Teachers Service Commission of equal grade lower salaries than their counterparts employed at the Commission’s offices is a violation of the affected teachers’ right not to be discriminated against as guaranteed by Article 27 of the Constitution and a violation of rights as guaranteed by Article 41(2) of the Constitution.i.A declaration that the appointment of a teacher of equal status/grade is a substation appointment and as such all persons appointed as teachers are entitled to similar salary/remuneration and benefits.ii.A declaration that the 2nd Respondent’s failure to advise the Teachers Service Commission on the remuneration of teachers of equal status/grade is in violation of Article 230(4b) of the Constitution and also discrimination against all persons serving as teachers of equal grade contrary to Article 47 of the Constitution of Kenya.iii.A declaration that the 1st and 2nd Respondents have jointly and severally acted in a manner that is inconsistent and in total violation of the Constitution and in particular have breached Articles 2(4), 10(2) (b & c), 19, 27, 28, 41, 47, 249(2) (a) of the Constitution.iv.A declaration that the 3rd Respondent has failed, refused and/or neglected its constitutional mandate of advising the 1st and 2nd Respondents.v.A declaration compelling the 1st and 2nd Respondents to pay all affected teachers’ salary equal to what the other teachers of similar grade have been earning from the date the disparity in payment commenced plus benefits backdated to their respective dates of appointment and paid promptly.vi.Any other relief that this Court may deem just and expedient in the circumstances. 4.The 3rd Respondent raised the following grounds of opposition against the Petition: that the Petition is misconceived, legally untenable, and discloses no cause of action against the 3rd Respondent; that the Petitioner intends to attribute liability to the 3rd Respondent for the 1st and 2nd Respondents’ alleged administrative, policy and remuneration decisions, yet both entities are independent constitutional commissions established under Articles 237 & 230 of the Constitution, with legal capacity to sue and be sued and be represented by counsels in their legal departments; the Petition fails to demonstrate any act, omission, directive, advice or conduct by the 3rd Respondent that violates the Constitution; that the 3rd Respondent’s mandate does not extend to supervising, directing or controlling independent constitutional commissions, whose independence is protected under Articles 149 (2a & 3) of the Constitution; the allegation of failure by the 3rd Respondent to advice is speculative, unsupported and legally misplaced as independent commissions are not subjected to control by any person including the Attorney General; the Petition fails to meet the threshold under Articles 22 and 258 of the Constitution by failure to show the nexus between the 3rd Respondent’s mandate and the alleged remuneration of teachers; the 3rd Respondent cannot be compelled to advise independent commissions in a specific manner or interfere with their constitutional mandate as the same would violate the doctrine of separation of powers; the Petition is bad in law in so far as it seeks declarations and orders against the 3rd Respondent for matters exclusively within the remit of independent commissions; that granting the prayers therefore, would undermine the autonomy of constitutional commissions, distort constitutional architecture and impose obligations not grounded in law; the Petition fails to satisfy the threshold set out in Anarita Karimi Njeru and Mumo Matemu for lack of precision and absence of evidence establishing the 3rd Respondent’s violation; that the 3rd Respondent be expunged from the proceedings or the Petition be dismissed with costs. 5.The 1st Respondent responded vide its replying affidavit sworn by Chrisantose Odhiambo Ogony, its Director Human Resource Management and Development, on 20th February 2026. The affiant outlined the 1st Respondents constitutional and legal mandate to be: to register, recruit and employ trained teachers, and assign teachers to service in any public school, promote and transfer teachers, exercise disciplinary control over teachers and terminate the employment of teachers. He deposed that the management of employed teachers is supported by a strong framework designed to meet the specific needs, aligning with the Employment Act, the TSC Act and other relevant laws and policies. He stated that section 18 empowers the 1st Respondent to engage and recruit secretariat staff to support its work and functions. He added that the recruited staff come from diverse professional backgrounds and are not necessarily from teaching background as insinuated by the Petitioner. 6.He deposed that upon recruitment and posting to public educational institutions to teach, the 1st Respondent may from time to time assign, or approve teachers to undertake related roles in the teaching and education sector. He outlined the tasks to be connected to: school-based extracurricular programs, examinations management and administration, and participation in capacity building, sensitisation and training programs. He stated that the framework developed by the 1st Respondent for management of teachers is adaptable, enabling teachers to be contracted or engaged by organizations within the education sector to assist in implementing other related mandates. He added that when the teachers undertake the assignments, they are contracted individually and the 1st Respondent has little or no involvement in the arrangement that often follows. He deposed that the government agencies that contract the teachers have legal persona and therefore possess the ability to contract for the services independently; therefore the 1st Respondent does not have control over the remuneration. 7.He deposed that the 2nd Respondent has provided uniform guidelines for the payment of public servants, the practical realities of budgetary allocations, administrative structures and logistical challenges across the education sector; which affect how allowances are disbursed to teachers by various players in the sectors. He deposed that the 1st Respondent has at no time paid teachers discriminatorily or in an oppressive manner. He stated that when teachers are on official assignments they are paid allowances in line with the rates and guidelines issued by the 2nd Respondent. On the discrepancy in pay, he deposed that the same is due to: the difference in the nature of terms and conditions of service for the secretariat staff to that of teachers; that the terms of service, including payment are regulated by separate laws and policies; the pay and service conditions for teachers are determined by CBAs negotiated by the Unions which are also guided by the 2nd Respondent’s advisories; the remuneration specifically the secretariat staff’s allowances is governed by the existing guidelines issued by the SRC from time to time. 8.He went further to depose that the Petitioner had failed to adduce sufficient and compelling grounds to bring this matter within the realm of Articles 22 and 41 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules or any other constitutional provision, more so since there exists an employer-employee relationship between the Petitioner and 1st Respondent, which makes the case one of personal law as opposed to constitutional or public law; and thus, the arising rights and obligations ought to be managed under statute law. 9.On advice of counsel, the affiant deposed that each employee is employed under specific individual terms and conditions and therefore the terms and conditions of the secretariat staff employed under Article 250 of the Constitution are different in content, nature and scope from those of teachers under Article 237. He deponed that the two categories of employees are inherently different in content and structure, and therefore allegation that it constitutes discrimination is logically incorrect and legally unfounded. He stated that Article1(2) of the Discrimination (Employment Occupation) Convention 1958, states that the distinction, exclusion, or preference related to a specific job, based on its inherent requirements should not be considered discrimination. That the job descriptions, content, scope and importance of roles for secretariat staff, including the Chief Executive Officer and management of the 1st Respondent, and teachers, differs significantly; therefore, they should not be used as a basis for grounds of discrimination. He added that differentiation due to academic and professional qualifications is not a ground for discrimination pursuant to Article 27(4) of the Constitution. He stated that the attempt to introduce the secretariat staff in the Petition lacked legal and factual basis, is irrelevant and in bad faith. He stated that the prayers sought are related to the mandates and directives by other agencies of the national government. 10.The affiant deponed that it will be undesirable for the court to issue a blanket order as sought by the Petitioner. He stated that the treatment of employees is premised on the terms of service stipulated in the individual contracts. He added that the prayer for equal treatment of teachers serving on diverse, distinct and separate terms of service, eg directors, deputy directors, principals, head teachers, is not rational and lacks legal and factual basis. In response to the other prayers, he reiterated that the 1st Respondent has not violated any terms of service as it has upheld the constitutional principles of fair labour practices as provided for under Article 4 of the Constitution. He termed the Petition as an abuse of court process, devoid of merit, bad in law, misconceived and ought to be struck out. He stated that the Petition lacks specificity and particularity thus does not meet the test established in Anarita Karimi Njeru vs Republic (1979) 1KLR 15, and Mumo Matemu vs Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 [2013] eKLR. He added that the Petition has not raised any cause of action anchored in the Constitution and the grievance falls within the ambit of the Employment Act. He urged that if the prayers are granted, it will set an unsustainable precedent that will unsettle the macro-economic situation in the country. 11.The 2nd Respondent in response to the Petition raised grounds of opposition that is a Constitutional Commission established under Article 230 of the Constitution, operationalized by the Salaries and Remuneration Commission Act and whose mandate is to, inter alia set and regularly review the remuneration and benefits of all State officers, and advise the national and county governments on the remuneration and benefits of all other public officers; the Petitioner has omitted to frame its case with precision as required under the High Court’s pronouncement in the case of Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272, thus fails the requirement as it does not state the alleged constitutional provisions violated by the 2nd Respondent and the acts or omissions complained of with reasonable precision; it is trite law that he who avers must prove, yet the Petitioner has not discharged the evidentiary burden of proving that the 2nd Respondent has acted in breach of the Constitution or any other law; the Petition discloses no reasonable cause of action against the 2nd Respondent; the Petition is scandalous, frivolous, and vexatious and abuse of the Court’s process; and the petition has no merit and should therefore be dismissed with costs. 12.By a Replying Affidavit sworn by CHRP Ali, Abdullahi Surraw, the Commission Secretary of the 2nd Respondent on 24th February 2026, the affiant the deposed that the Commission’s core mandate is set out under Article 230(4) of the Constitution as follows: to set and regularly review the remuneration and benefits of all the state officers and to advise the national and county governments on the remuneration and benefits of all other public officers. That section 11 (d) of the SRC Act mandated the Commission to conduct comparative surveys on the labour markets and trends in remuneration to determine the monetary worth of the jobs of public offices. That in exercise of its powers and functions, Article 230(5) and section 12 of the SRC Act requires it to observe the following principles: the need to ensure that the total public compensation bill is fiscally sustainable; the need to ensure the public services are able to attract and retain the skills required to execute their functions; the need to recognise productivity and performance; transparency and fairness; and equal pay to persons of equal value. 13.The affiant deponed that from the constitutional and statutory provisions, the commission’s mandate is neither discretionary nor arbitrary, but is strictly exercised within the constitutional framework. He added that the Commission is constitutionally obligated to balance the principles of equity, fairness, fiscal sustainability, labour market competitiveness, productivity and responsible public finance management. He deponed that the commission’s role with respect to public officers is advisory in nature and once such advise is lawfully issued, the implementation thereof is undertaken administratively by the respective employing institutions within their statutory mandate. He added that the Commission does not execute payroll functions, effect payment or administer terms of services for employees of public bodies. 14.He deposed that the commission in discharge of its powers and functions undertakes job evaluation in the public service. That the commission uses analytical and point factor-based job evaluation systems to assess the relative worth of jobs in the public service. He stated that after job evaluation, the commission advises the national and county governments on remuneration structures that are fair and equitable based on the actual worth of the role, not merely historical job group nomenclature. 15.On distinction between the secretariat staff and teachers, he stated that the two are different cadres, engaged in fundamentally different roles, functions and responsibilities and therefore, not comparable for purposes of job evaluation and compensation. He clarified that the teachers deployed to learning institutions are engaged in the instructional and pedagogical functions including curriculum delivery, classroom teaching, learner assessment, mentorship and day to day facilitation of learning, whereas those in secretariat undertake regulatory, policy formulation, administrative supervisory, financial management, human resource, legal compliance and strategic oversight functions. 16.He added that the qualifications, technical competence and professional specializations required for various secretariat positions differ from those prescribed for classroom teaching roles. He stated that the secretariat positions require expertise from fields such as law, finance, audit, human resource management, policy analysis, economics, procurement and information technology. He stated that the remuneration for secretariat staff is be calibrated in a manner that enables the 1st Respondent attract, recruit and retain competent professionals in a competitive public sector policy and regulatory environment. He added that in the case of teachers, the 1st Respondent primarily competes with private schools and other educational institutions for qualified teaching personnel. 17.The affiant deposed that the supply dynamics, demand pressures, professional mobility considerations and market benchmarks applicable to secretariat staff differs materially from those applicable to classroom teachers. He urged that any comparison based solely on the broad institutional affiliation without due regard to the substantive content of the roles, would be legally and administratively unsound and contrary to established principles of public sector human resource management. He therefore urged that the differentiation does not constitute discrimination within the meaning of Article 27 of the Constitution. He added that the benefits of teachers are determined through structured collective bargaining processes conducted with duly recognized trade unions in accordance with Article 41(5) of the Constitution, the Labour Relations Act and the Employment Act. 18.He stated that he was aware that the 1st Respondent had entered into collective bargaining with the relevant unions, including KUPPET and KNUT, culminating in duly negotiated and registered CBAs governing terms and conditions of service, upon receipt of the commission’s advice. He deposed that once a CBA is negotiated and is duly registered in Court, it acquires legal force and binds parties thereto. He added that the Petition fails to consider that the duly negotiated and registered CBAs remain binding and valid instruments that cannot be impugned, varied or invalidated without a direct and proper legal challenge of those agreements. He urged that any order with effect of unsettling or overriding the CBAs would undermine the constitutional right to collective bargaining and disrupt the established statutory framework governing labour relations. He stated that the Petition lacked merit and ought to be dismissed with costs to the 2nd Respondent. 19.In rejoinder, the Petitioner, by a further affidavit deposed that the engagement of teachers by other bodies was not the focus of the Petition. That the petition does not impugn the contractual activities of teachers. He stated that the focus is the discrimination between teachers, where those in same job group are paid disparately. He emphasized that the 1st Respondent discriminates against teachers not in the secretariat by underpaying them. He added that 2nd Respondent’s refusal, neglect to advise the 1st Respondent violated its mandate under Article 10(2), 230(4) and 230(5b) relating to fairness. He argued that the petition passes the test of particularity as it neatly addresses issues relating to teachers’ labour rights. He deposed that the reliefs by this Court would operate as a remedy to continuing violations against thousands of teachers; and thus, the petition cannot be said to be personal. 20.In response to the 2nd Respondent, the Petitioner stated that the commission has failed to produce any evidence before the Court in support of the claim that the alleged differences in the roles and core functions lead to a difference in value of work. He stated that whereas the roles may not be exact, they are of equal value as the goal of both is to produce competent and competitive citizens. He urged that pedagogy requires education, intelligence, creativity, emotional intelligence, strength of character, tact, foresight and various other attributes necessary to guide learners; the very same skills used by an administrator. He contended that the work of teachers outside the secretariat matches and even overshadows the bureaucratic functions of the teachers within the secretariat. He noted that the commission admitted to being in charge of job evaluation adding that logic directs evaluation produces a job class, the inference is that the members of the said job class produce work of equal value. He stated that the Respondents had failed to adduce any comparators to prove the disparate roles, qualifications, responsibilities and environments justifying higher pay, and failed to rebut his evidence adduced in support of the discriminatory pay. 21.On the CBA, the Petitioner stated that CBAs are attempts of unions to improve the teachers’ salaries which goal would be met if the Court granted the orders sought. He stated that the granting of the orders would not undermine the rights under Article 41(5) of the Constitution as harmonizing the salaries to match those of the teachers within the secretariat would exceed the amounts agreed in the CBAs. He deponed that granting the orders would be a constitutional and efficient means of over-achieving the goals of the CBAs. He contended that the Respondents having failed to adduce any evidence, failed to discharge them burden of proof. Petitioner’s Submissions 22.The Petitioner identified the following issues: whether the teachers employed at the secretariat and those outside the secretariat performed work of equal value and whether the Petitioner’s case had been proven to the required standard. 23.On the first issue, reliance was placed on section 5(5) of the Employment Act and the cases of Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR and Nganga v Christ the King Parish & another [2023] KECA 1100 (KLR) on equal pay for work of equal value. On the second issue, reliance was placed on the definition of discrimination in Rose Wangui Mambo & 2 others vs Limuru Country Club & 15 others [2014] eKLR. Further reliance was placed on the Supreme court decision in Gichuru vs Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) among other submit that the difference in pay was arbitrary, unexplained, unconstitutional and deserving of correction. It was submitted that teachers of the secretariat received salary increment from 2020, but the same was not applied to other teachers. It was contended that the 2021 CBA provided for the expected salary of a teacher in job group C3, TSC scale 8 to be minimum of Kshs. 43,154 and a maximum of Kshs. 53,943. That the 2020 circular addressing the secretariat teachers read that the minimum salary for someone in the same job group to be Kshs. 59,405 and a maximum of Kshs. 108,330. 24.The Court’s attention was directed to the decision in Evans Muriuki Muthuri & 4 others v National Police Service Commission & 2 others [2019] KEELRC 1665 (KLR). It was submitted that since the 1st Respondent established the job groups, it was surmisable that all employees of the same job group within the same entity are necessarily performing the same work. It was further submitted that the Petitioner having established his claim, the burden of proof shifted to the Respondents. That there being no evidence adduced before the court, the inference was that the roles were not different; qualifications or responsibilities that differentiate teachers in the secretariat from those outside it. The Court was urged to find that the Petitioner had made an uncontroverted case find merit in the Petition and allow it as is. Analysis 25.It is not in dispute that there are negotiated and registered CBAs, and that there is a discrepancy in salaries as alleged. What is in dispute is whether the disparity amounts to discrimination or fair differentiation. The issues that arise for determination are:a.Whether the Petition meets the threshold for constitutional petitions; b.Whether the Petitioner has laid basis for a claim of discrimination; and (c)Whether the Petition is merited. Whether the Petition meets the threshold for constitutional petitions. 26.The Respondents contented that the Petition did not conform with the requirements of constitutional petitions established in the Anarita Karimi Njeru case, that it lacked in precision and particularity. The Petitioner rebutted the assertion stating that the petition passes the test of particularity as it neatly addresses issues relating to teachers’ labour rights. 27.Rules 4 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, (hereinafter the Mutunga Rules) provide for locus standi and the form a Constitutional Petitions should take.Rule 4 of the Mutunga Rules provides as follows:4.Contravention of rights or fundamental freedoms(1)Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.(2)In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by—(i)a person acting on behalf of another person who cannot act in their own name;(ii)a person acting as a member of, or in the interest of, a group or class of persons;(iii)a person acting in the public interest; or(iv)an association acting in the interest of one or more of its members.Rule 10 states thus:10.Form of petition(1)An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.(2)The petition shall disclose the following—(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provision violated;(d)the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner.(3)Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court. 28.Evident the Respondents responded to the Petition effectively as drafted, indicating a proper understanding of the same. In finding that the Petition meets a reasonable standard of precision required of constitutional petitions, the court takes cognizance of the holding of the Court of Appeal in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) where the court observed that:45.We must point out that Anarita Karimi Njeru was decided under the old Constitution. The decision in that case must now be reconciled and be brought into consonance with the New Constitution. In our view, the present position with regard to the admissibility of petitions seeking to enforce the Constitution must begin with the provisions of article 159 on the exercise of judicial authority. Among other things, this article stipulates that:(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.46.We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.47.While the present petition might not be the epitome of precise, comprehensive, or elegant drafting, our view is that the complaints raised by the petitioner are concrete enough to warrant substantive consideration by the court: The petitioner complains against the appointment of the Interested Party to the Commission; and thinks that the appointment, at a minimum, violates article 73 of the Constitution as far as integrity and suitability of the interested party for the appointment to the position is concerned. That much seems not to be in doubt. Indeed, both the respondents and the interested party have proceeded from this understanding. They have sought to explain at length the contours of article 73 and chapter six of the Constitution in response to the petitioner’s allegations. If one needed evidence that these parties understood the claim facing them, it is to be found in their various papers filed in court and the oral submissions made in court. This being a constitutional issue of immense public importance and interest, we refuse to worship at the altar of formal fetishism on this issue and hold that the controversy at issue has been defined with reasonable precision to warrant a proper judicial determination on merits. Whether the Petitioner has laid a basis for a claim of discrimination. 29.The foundation of a claim for discrimination is Article 27 of the Constitution and section 5 of the Employment Act provide as hereunder:Article 27 provides as follows:27.Equality and freedom from discrimination.(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).Section 5 of the Employment Act states thus:5.Discrimination in employment(1)It shall be the duty of the Minister, labour officers and the Industrial Court—(a)to promote equality of opportunity in employment in order to eliminate discrimination in employment; and(b)to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya.(2)An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.(3)No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee—(a)on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;(b)in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.(4)It is not discrimination to—(a)take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;(b)distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;(c)employ a citizen in accordance with the national employment policy; or(d)restrict access to limited categories of employment where it is necessary in the interest of State security.(5)An employer shall pay his employees equal remuneration for work of equal value.(6)An employer who contravenes the provision of the section commits an offence.(7)In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specified in this section. emphasis supplied. 30.The Petitioner contended is that the 1st Respondent was guilty of discrimination against teachers in terms of payment. That their counterparts serving at the 1st Respondent’s secretariat were paid higher yet their qualifications matched. Section 18 of the Teachers Service Commission Act (TSC Act) provides for the secretariat and its staff as follows:18.Secretariat and staff of the Commission(1)There shall be a secretariat of the Commission which shall be headed by the Secretary.(2)In addition to the professional, technical and administrative staff appointed by the Commission under Article 252(1)(c) of the Constitution, the Government may, upon the request by the Commission, second to the Commission such number of public officers as may be necessary for the purposes of the Commission.(3)Further to subsection (2), the Commission may second its staff to other national government institutions at the request of those institutions.(4)A public officer seconded to the Commission shall, during the period of secondment be deemed to be an officer of the Commission and shall be subject only to the direction and control of the Commission.(5)The staff of the Commission may be appointed subject to its approved establishment.(6)The Commission shall ensure that, in the appointment of members of its staff, not more than two thirds of the staff of the Commission shall be of the same gender taking into account of—(a)persons with disabilities; and(b)regional and ethnic diversity of the people of Kenya. 31.Simple reading of the TSC Act and the above section of the law, leaves no doubt that there is a distinction between teachers in public institutions and secretariat staff, in that a teacher is a registered member offering teaching services, whereas a staff of secretariat is a person hired to support the commission in the performance of its functions. It is also clear that secretariat staff are not necessarily teachers by profession. 32.From the evidence provided by the Petitioner, there is nothing to show that the alleged positions at the secretariat there held solely by registered teachers, who possessed similar qualifications. Furthermore, the contested Circular is dated 15th July 2020. Significantly, there is evidence of there being a CBA entered between the KUPPET and the TSC and registered in this Court on 26th October 2023. There is no evidence of the issue at hand being discussed or raised at the point of negotiations. There is also no proof of coercion or undue influence in arriving at the CBA. Furthermore, the provisions of section 5 of the Employment Act are unambiguous. 33.It is trite law that where differentiation is not based on any reason, principle or purpose, or has no justification, it amounts to discrimination on arbitrary grounds. In such proceedings, a Petitioner is required to show that the actions or conduct complained of was irrational, and that the same amounted to unfair discrimination and that the discrimination was unfair. 34.The Petitioner must demonstrate a prima facie case of discrimination for the burden of proof to shift to the Respondents under section 5(7) of the Employment Act. 35.Applying the above test to the instant case it is apparent that the same does not fit as there exists proper and satisfactory reasons tendered before this Court to explain the discrepancy. Without proper proof that the positions are solely held by teachers, who perform work of equal value as the Petitioner the claim of discrimination is not proven to the required standard for the Respondents to their defence. The Petitioner’s contention that the Petition is merited on the disprove ground that the Respondents did not provide evidence is, in the court’s new unsustainable. 36.On who bears the burden of proving discrimination, the court is guided by holding of the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR follows:(51)In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.” 37.In Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] KECA 329 (KLR) the count at Appeal down the guiding principles as follows:Further, fairness requires that people doing similar work should receive equal pay. The principle has however extended to an analogous situation requiring that work of equal value should also receive equal pay as is claimed in the present appeal. The principle of equal pay for equal work, or work of equal value was succinctly explained in by the South African Labour Court in Louw v Golden Arrow Bus Services (Pty) Ltd [1999] ZALC 166 as follows;'………….it is not an unfair labour practice to pay different wages for equal work or for work of equal value. It is however an unfair labour practice to pay different wages for equal work or work of equal value if the reason or motive, being the cause for so doing, is direct or indirect discrimination on arbitrary grounds or the listed grounds e.g. race or ethnic origin.’ 38.In claims of this nature, where the claimant invokes the principle of equal pay for equal work the claimant must establish that the unequal pay is caused by the employer discriminating on unlawful grounds. It was observed in Louw v Golden Arrow Bus Services (Pty) Ltd (supra) that discrimination on a particular 'ground' means that the ground is the reason for the unequal treatment complained of by the claimant. As discussed by the writer, Adolph A. Landman in his article The Anatomy of Disputes about Equal Pay for Equal Work,“The mere existence of disparate treatment of people of, for example, different races is not discrimination on the ground of race, unless the difference in race is the reason for the disparate treatment. Put differently, it must be shown that the difference in salaries is because of sex, gender, race, and so on.”… 39.In claims of equal pay for equal work or work of substantially equal value, there is always need on the part of the claimant to establish comparators for purposes of showing unequal pay in comparison to the comparators. The appellant has faulted the respondent for not laying basis for identifying the two comparators in the instant appeal. The appellant was also of the view that the trial Judge failed to make an in-depth analysis of the comparators’ jobs which resulted in an error. The respondent identified Mr. Prettejohn and Ms. Olivercronna as his comparators. In the article titled, The Anatomy of Disputes about Equal Pay for Equal Work (supra) the author analyses some of the rules or guidelines that would be applicable in settling for a suitable comparator for a claimant which include that;(a)the comparator must actually exist - a comparison with a hypothetical employee is not permissible;(b)normally the comparator would be a person doing the same job or a job of equal value at the same time although the European Court of Justice has permitted a comparison with a former employee;(c)usually, the comparator must be employed by the same employer, although some legal systems take into account a comparator at an associated employer. There is some support for the view that the comparator need only be in the same service. A complainant has also been allowed to use a comparator in another organization that is funded from the same public funds.” 40.Even though it was shown that teachers held positions at the secretariat there was no evidence that they engaged in work of equal value. It is obvious that no teaching is conducted at the 1st Respondent’s and secretariat. 41.Additionally, no proof was provided to show that the structure ranking at the secretariat was similar to that of teachers which would show that they were similarly circumstanced. There is therefore no comparator provided by the Petitioner in making his case. That said, the principle of fair discrimination, is applicable in situations where there is distinction based on characteristics that an employer deems fit for the role and in the court’s view that is the case in this matter, and as such, I find that from the foregoing, the court finds that there is no discrimination against the Petitioner and his colleagues. 42.See in this regard Reuben Wamukota Sikulu v Director of Human Resource Management, Ministry of Devolution & Planning & 2 others; Public Service Commission (Interested Party) [2020] KECA 876 (KLR) where the Court observed as follows:(12)What the employee is required to do is establish a prima facie case, through direct evidence or statistical proof, that he or she was discriminated against on any of the grounds set out in Article 27(4) of the constitution, which include; race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. To establish a prima facie case, the appellant had a duty to demonstrate he qualified for the position he was denied; show that he suffered an adverse employment action as a result of the discrimination; must provide prima facie proof that other explanations by the employer are not contrived or without basis; that the real reason for denial of promotion was discriminatory and the reasons must bear unreasonableness or other types of malpractices which must be linked to the suffering endured by the employee. Once the employee establishes a prima facie case, the burden shifts to the employer, to show a legitimate explanation for refusing to grant the promotion. Where the employee has demonstrated a prima facie case, a presumption that the employer discriminated against the employee is raised. The employer must then articulate clear, specific, and non-discriminatory reason for denying the promotion. 43.From Code 68 of the Teachers Service Commission Code of Regulations for Teachers it is deducible that deployment of a teacher to secretariat is equivalent to a promotion to enable the secretariat achieve its mandate including administration and it is illogical expect the teacher to earn similar pay for a teacher and a person exercising administrative power over the same teacher. Code 68 states as follows:68.Deployment of teachers(1)The Commission may, for purposes of providing competent administrators for all educational institutions, deploy a teacher to any administrative position or in any other capacity through a transparent process.(2)The Commission may deploy a teacher by—(a)appointment to an administrative position;(b)appointment to a higher administrative position;(c)appointment to the Commission's secretariat;(d)appointment to perform administrative duties;(e)posting from a primary to a post primary institution: or(f)withdrawal of administrative duties. 44.The court is in agreement with the arguments made by the 2nd Respondent on the essence of job evaluation in coming up with the market value of services. In Teachers Service Commission (TSC) & 2 others v Kenya Union of Teachers (KNUT) & 8 others [2015] KECA 239 (KLR). The Court of Appeal held thus:146.Productivity is the relationship between inputs and output; it focuses on overall capabilities, it is units of outputs divided by units of inputs. Productivity and performance cannot be determined without measurement and evaluation. Productivity measurement requires development of an index that identifies the input contribution of each factor of production to the final output. Measurement and evaluation require data collection and analysis and this is an exercise in evaluation. SRC cannot execute its mandate to recognize productivity and performance in public service without measurement and evaluation. SRC cannot perform its constitutional function to attract and retain skills required in the public service without undertaking a skills gap evaluation analysis and a comparative analysis of equal pay for work of equal value. 45.In Law Society of Kenya v Attorney General & another; Warsame & another (Interested Parties) (Petition 307 of 2018) [2019] KEHC 10881 (KLR) (Constitutional and Human Rights) (18 January 2019) (Judgment) the High Court established the need for justification of constitutional functions as follows:49.This country has a unique constitution that requires justification of every governmental or public action, taken or not taken. In that regard, Etienne Mureinik opines in his article “A Bridge to where? Introducing the interim Bill of rights” (supra) at page 32, that;“if the new constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to, it must lead to a culture of justification, a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion”. (emphasis)50.On that note, therefore, actions of any state officer or public officer in our Republic, including that of the President, must meet the constitutional test of justification as an incidence of the rule of law and a founding value in our constitution. 46.For the foregoing reasons the court is satisfied that the Petitioner has failed to prove his case on a balance of probabilities. The petition lacks merit and it is accordingly dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF MAY, 2026.DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF MAY, 2026.DR. JACOB GAKERIJUDGE