https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1970

Ocharo v Anti-Female Genital Mutilation Board & 10 others (Petition E013 of 2021) [2026] KEELRC 1970 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1970 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E013 of 2021 CN Baari, J July 9, 2026 Between Memba Ocharo Petitioner and Anti-Female Genital Mutilation Board 1st Respondent State Corporations Advisory Committee 2nd Respondent and Salaries and Remuneration Commission 1st Interested Party Paul Kilonzo 2nd Interested Party Zuweina Salim 3rd Interested Party Sammy Selian 4th Interested Party Titus Chemursoi 5th Interested Party Milton Omondi 6th Interested Party Florence Chemutai 7th Interested Party Jared Kingoina 8th Interested Party Osman Ibrahim 9th Interested Party Ruling 1.Before Court is the Claimant’s motion application dated 20th March, 2023, brought pursuant to Articles 41 & 159 (2) of the Constitution of Kenya 2010, Sections lA, 1 B, 3A of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules. The Claimant seeks the following orders: -i.Spentii.That the Honourable Court be pleased to adopt the tabulation of payments owed to the 2nd to 9th Interested Parties at the value of Kshs25,351,750.00 as salary arrears and as shared with Respondents vide a letter dated 10/2/2023 pursuant to Paragraph (c) of the Judgment of the Honourable Court delivered on 27 /5/2022 by Hon Justice James Rika (J).iii.That the Honourable Court be pleased to adopt and incorporate the order for payment of Kshs 300,000/= to each Interested Parties from 2nd to 9th Interested Parties pursuant to paragraph (d) of the Judgment of the Honourable Court delivered on 27/5/2022 by Hon Justice James Rika (J) in the final decree.iv.Cost of this application be provided for. 2.The application is supported by grounds on the face of the motion and the affidavit of Memba Ocharo, sworn on 20th March, 2023. 3.The crux of the motion is that on 27th May 2022, this Court, presided over by Justice James Rika, entered judgment where it adopted as its own, the findings of the Commission on Administrative Justice contained in Inquiry File FGM/012/423/2018, and declared that the 1st Respondent had violated the 2nd to 9th Interested Parties' constitutional and statutory rights under Articles 27, 41 and 236 of the Constitution, Section 4 of the Fair Administrative Action Act, and Section 5 of the Employment Act. 4.They aver that pursuant thereto, the 1st Respondent was ordered to pay the 2nd to 9th Interested Parties the salary arrears representing the difference between the salaries paid under the 1st Respondent's advisory and the salaries that ought to have been paid under the salary structure approved by the 1st Interested Party for the period of their deployment. They state that the Court further awarded each of the 2nd to 9th Interested Parties general damages of Kshs.300,000 for the violation of their constitutional and statutory rights, costs of the suit, and interest at court rate from the date of the judgment until payment in full. 5.The Claimants/Applicants contend that despite repeated reminders and the filing of Judicial Review No. 121 of 2022 to compel compliance, the Respondents have failed and/or refused to implement the Court's judgment by computing and paying the sums due to the Interested Parties. 6.They state that, owing to the Respondents' failure to prepare the required computations, the Interested Parties undertook their own calculations, but the Respondents have neither accepted those computations nor provided alternative or counter-computations to facilitate settlement. 7.The Applicants further argue that, in the Respondents' continued default, the Court is the only body with jurisdiction to determine or adopt the appropriate computations so that they may be incorporated into the final decree. 8.The Claimant/Applicants further emphasize that approximately 10 months have elapsed since the judgment of 27th May 2022, yet the Respondents have shown no willingness to comply with the Court's orders. 9.They therefore urge the Court to grant the orders sought to ensure implementation of the judgment and to prevent the continued financial hardship occasioned by the unlawful withholding of the Interested Parties' entitlements. 10.The 1st Respondent filed two Replying affidavits in opposition to the motion, one dated 16th February, 2026, and another dated 25th March, 2026, both sworn by Bernadette Loloju. The 1st Respondents contend that the Applicants have not produced sufficient evidence to support their computations, particularly for having failed to provide documents showing the basic salary earned by each of the 2nd to 22nd Interested Parties before the approval of the 1st Respondent's salary structure in August 2015. 11.It further states that the 2nd to 22nd Interested Parties were public officers deployed from various government ministries to the 1st Respondent, and that the Salaries and Remuneration Commission approved the 1st Respondent's salary structure through a letter dated 6th August 2015. 12.The 1st Respondent maintains that the 2nd to 22nd Interested Parties had already received payments equivalent to 15% of their basic salaries from the date of deployment until May 2018, which were paid by cheque. According to the Respondents, these amounts were acknowledged by the recipients and must be deducted from any sums ultimately found payable to each Interested Party. 13.The 1st Respondent further states that the 20th, 21st, and 22nd Interested Parties have already been paid their dues, while the 4th Interested Party was never formally deployed to the 1st Respondent and is therefore not entitled to the claimed benefits. 14.The 1st Respondent states that it has prepared and filed a schedule setting out the amounts payable to the Interested Parties and intends to file additional supporting documents before the next court date. 15.They rely on a tabulation of the amounts payable to contend that any sums due are subject to statutory deductions, and note that all the Interested Parties were eventually released back to the civil service after the 1st Respondent recruited its own staff. 16.They urge the Court to adopt their computations and dismiss the Applicants' claims to the extent they are unsupported. 17.In their further affidavit sworn on 26th March, 2026, by Memba Ocharo, the Claimants/Applicants contend that the judgments delivered on 27th May 2022 and 4th October 2024 remain valid and binding, having neither been appealed, stayed, reviewed, nor set aside, and contend further that the Respondent's continued non-compliance undermines the rule of law. 18.The Applicants further state that the dispute arose from discriminatory payroll practices, whereby a few employees were paid the full salary differentials approved by the Salaries and Remuneration Commission, while the remaining employees received only 15% of their entitlement. They assert that the Respondent's tabulations are erroneous because they fail to apply the SRC approved salary structure and remuneration package, rendering the computations unlawful and misleading. 19.The Applicant contends that the Respondent's computations remain unlawful because they omit the SRC-approved house and commuter allowances, which are integral components of the approved remuneration package. The Applicant further asserts that the Respondent is in continued violation of the Court's judgments of 27th May 2022 and 4th October 2024, which declared that the Interested Parties' rights had been violated and directed payment in accordance with the salary structure approved by the Salaries and Remuneration Commission, rather than the 15% salary advisory. 20.The Applicants also state that the Respondent engaged in discriminatory implementation of the SRC salary structure by selectively applying it to certain senior officers while unlawfully excluding the approved allowances. 21.The Applicants dispute the 1st Respondent's tabulations as inaccurate and self-serving, asserting that they were independently audited and do not reflect the Court's judgment. The Applicants state that the accurate computations prepared by an independent auditor and shared with the Respondents on 10th February 2023 should instead be adopted by the Court. The proposed computations, they aver, place the total amount payable to the 2nd to 9th Interested Parties at Kshs.25,352,750.00. 22.The Applicants further state that the total amount claimed by the 2nd to 22nd Interested Parties in Petition E189 of 2024 is Kshs.43,168,553.00, representing salary arrears allegedly arising from the unlawful variation and withholding of their salaries since 2015. 23.It is their further assertion that the Kshs.300,000 general damages awarded to each Interested Party remain unpaid, reflecting the Respondent's continued disregard of the Court's judgments. The Applicant disputes the Respondent's denial of the status of George Mogusu, Lucy, and Beatrice, maintaining that they were part of the team deployed to operationalize the Board. 24.They aver that Lucy and Beatrice have not pursued monetary claims because they suffered no financial loss, while George Mogusu remains entitled to remuneration for his service. The Applicant further contends that the lawful remuneration framework was the salary structure approved by the Salaries and Remuneration Commission on 6th August 2015, and that the Board unlawfully substituted it with a lower 15% basic salary proposal from the State Corporations Advisory Committee, contrary to the Constitution and employees' right to fair remuneration. 25.It is their position that the Respondent's purported compliance is incomplete because it excludes SRC approved allowances, including house, extraneous, entertainment, and domestic allowances, and that the Board discriminated by selectively applying the SRC salary scale to certain senior officers while denying similar benefits to other staff. 26.Finally, the Applicant relies on internal Board documents and correspondence with the National Treasury as evidence that the Respondent acknowledged the outstanding salary obligations and sought funding to settle them. 27.Parties urged the application through written submissions, which have been duly considered. Analysis and Determination 28.The application before Court is not one seeking a review or variation of the Judgment delivered on 27th May 2022. It instead seeks the implementation of that Judgment through the adoption of the monetary tabulations, which the Claimants/Applicants contend represent the salary arrears due to the 2nd to 9th Interested Parties, as well as the incorporation of the award of general damages of Kshs.300,000 to each Interested Party in the final decree. 29.The issue for determination is therefore whether this Court should adopt the Applicants' tabulations as constituting the decretal sums payable pursuant to the Judgment of 27th May 2022. 30.It is common ground that judgment was entered on 27th May 2022 in favour of the Interested Parties as against the 1st Respondent. That judgment declared that the Respondent had violated the constitutional rights of the Interested Parties and ordered payment of the difference between salaries actually paid and the salaries payable under the salary structure approved by the Salaries and Remuneration Commission (SRC), together with general damages of Kshs.300,000 to each Interested Party, costs, and interest. 31.There is also no dispute that the judgment has neither been appealed against, reviewed, nor set aside, and it therefore remains valid, binding, and enforceable. For this reason, the Respondent cannot reopen issues that were conclusively determined by the judgment through execution proceedings. 32.Having said that, the question before Court is not whether the Respondent is bound by the judgment, but whether the Court should adopt the Applicants' unilateral computations as the decretal amount. 33.The Applicants contend that they prepared independent computations after the Respondent failed to undertake the exercise as directed by the Court, and urge the Court to adopt those figures because the Respondent neither accepted them nor provided proper counter computations. 34.The 1st Respondent, on the other hand, disputes both the methodology and the figures computed. It further argues that the Applicants have not provided the pre-August 2015 salary data necessary to verify the computations, that some Interested Parties have already received partial payments amounting to 15% of their basic salaries, that certain Interested Parties’ claims have already been fully settled, that one Claimant was never formally deployed to the 1st Respondent, that statutory deductions remain applicable, and finally that its own tabulations should instead be adopted. 35.From the material before Court, it is evident that there exists a genuine dispute regarding the computation of the decretal amount. The Applicants' tabulations, which are the subject of the motion herein, are disputed, and so are the 1st Respondent's belated tabulations. 36.The Court is therefore confronted with competing computations supported by conflicting factual assertions. 37.This Court undoubtedly possesses jurisdiction to supervise the execution of its judgments. That jurisdiction must, however, be exercised on verified evidence, not by simply adopting one party's figures where the same remain seriously contested. 38.The Court of Appeal in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 403 (KLR), observed that where computation of monetary entitlements depends upon contested employment records, the court must evaluate the evidentiary basis before making a final determination. 39.The Applicants invite the Court to adopt computations prepared by an independent auditor. While such computations may be persuasive, they do not automatically become decretal sums merely because they have been prepared by an auditor. They must correspond with the judgment and be verifiable against the employment records, the SRC salary structure, the deployment letters, payroll records, and any payments already made. 40.It is also my view that the Respondent cannot simply resist implementation of the judgment by producing incomplete tabulations or promising to produce further documents several years after the judgment. Litigation must come to an end. 41.In the circumstances of this case, the Court is unable to adopt the Applicants' tabulations as the final decretal amount for reason that the figures remain substantially disputed and require reconciliation against the approved SRC salary structure, evidence of payments already made, and all applicable allowances contemplated by the judgment. 42.On prayer number (iii) in the motion, the judgment expressly awarded each of the Interested Parties general damages of Kshs. 300,000, which requires no further computation. Its incorporation into the decree is purely administrative and merely reflects what the Court already determined. 43.The Respondent has not demonstrated that this aspect of the judgment has been satisfied, and I conclude that there is no legal impediment to incorporating that award into the formal decree. 44.In the upshot, I make the following orders to facilitate compliance with the judgment of 27th May, 2022: -a.That the prayer seeking adoption of the Applicants' tabulations in the sum of Kshs.25,351,750 as the decretal salary arrears is declined.b.That the award of Kshs. 300,000 on account of general damages to each of the 2nd to 9th Interested Parties shall be incorporated into the final decree together with the costs and interest awarded in the judgment.c.That the Respondent shall, within 30 days of this order, file a comprehensive verified computation of the salary arrears due to each Interested Party, setting out:i.The approved SRC salary applicableii.The salary actually paid to each Interested Partyiii.The salary differentialiv.All SRC approved allowances forming part of the remuneration packagev.The net balance payable to each Claimant.d.The Applicants/Claimants shall be at liberty to file any response to the Respondent's computations within 14 days of service.e.The costs of the present application shall abide the outcome of the computation proceedings. 45.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 9TH DAY OF JULY, 2026.C. N. BAARIJUDGEAppearance:Mr. Paul Macharia present for the PetitionerMs. Martina & Mr. Omari present for the PetitionersMs. Mochoge present for the 1st Respondent/ApplicantMs. Esther S – C/A