[2024] KEELRC 1008 (KLR)

Oigoro v Turkana County Public Service Board & another (Cause 11 of 2022) [2024] KEELRC 1008 (KLR) (12 April 2024) (Judgment)

Neutral citation: [2024] KEELRC 1008 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kitale

Cause 11 of 2022

MA Onyango, J

April 12, 2024

Between

Lawrence Obino Oigoro

Claimant

and

Turkana County Public Service Board

1st Respondent

Turkana County Government

2nd Respondent

Judgment

1. The Claimant herein was an employee of Turkana County Public Service Board, the 1st Respondent but has since retired from service. The 2nd Respondent is the County Government of Turkana.

2. In his Amended Statement of Claim dated 10th January 2023, the Claimant alleges that the Respondents discriminated against him under section 65(2) of the County Government Act, Article 27(4) and 232(1)(g), (h) and (f) of the Constitution, by promoting almost all Directors who were absorbed in the devolved government departments of the County, Public Service to Join Group “R”, the consideration being their ethnicity while the Claimant who is considered a “foreigner” due to the fact that he is from Kisii Community, was discriminated.

3. According to the Claimant, in February 2014, the County Human Resource Advisory Committee of the 2nd Respondent recommended the Claimant’s promotion, which recommendation was followed up by the Chief Officer, Water Services Irrigation and Agriculture by a letter dated 26th September 2016 addressed to the County Secretary of the 2nd Respondent but all in vain.

4. The Claimant avers that he lodged an appeal to the Public Service Commission pursuant to section 77 of the County Government Act which appeal was not contested by the Respondent and thus the Commission elevated him to Job Group “R” and give him the salary and allowances with effect from 1st February 2015 till 16th December 2020 when he retired.

5. The Claimant contends that he was denied rightful salary and allowances commensurate with his Job Group “R” and underpaid to a tune of Kshs 5,889,808. 00 plus Kshs 1,203,705 (being arrears on account of acting allowance), Kshs 2,000,000 (DSA Local & Foreign travel allowances) totalling to Kshs 9,003,513 exclusive of interest at the rate of 14% per annum giving a figure of Kshs 10,263,176. 48. That his total claim is thus Kshs 19,356,689. 48.

6. The Claimant seeks the following orders against the Respondents:a.A declaration of this Honourable Court that the Claimant is entitled to be in Job Group “R” with effect from 1st February 2015 as directed by the Public Service Commission.b.Kshs.19,356,689. 48 and any further accrued underpayment till judgment and until payment in fullc.General damages for discriminationd.Interest at the rate of 14% per annum from the date when the money became due till judgment and until payment in fulle.Costs

7. In their response dated 13th December 2018, the Respondents denied the Claimant’s claim and in particular, that the Claimant was permanently appointed as the County Director of Agriculture or that they were obligated by law to upgrade the Claimant to Job Group “R” at all.

8. The Respondents argued that the Claimant was treated fairly and equally with all other staff of the 1st Respondent’s County Public Service. The Respondents further denied that the Claimant was underpaid or that he is owed any accrued salaries, allowances and/or benefits at all.

9. The Respondents urged the court to dismiss the Claimant’s case for lacking merit.

The Evidence 10. The Claimant testified on 29th May 2023 as CW1. He adopted his witness statements recorded on 3rd October 2018 and 1st February 2022 as part of his evidence in chief. He also relied on his bundle of documents filed in support of his case.

11. The Claimant in his testimony told the court that when the devolved governments were established, he was appointed as the County Director of the 2nd Respondent in 2013 by the then Ministry of Agriculture.

12. According to the Claimant, he was not confirmed when the other staff were confirmed on grounds that he was not from Turkana County. He stated that he was discriminated upon and he prayed to be compensated for underpayment and non-payment of allowances that were due to him.

13. On cross examination by Ms. Onchangwa, counsel for the Respondents, the Claimant maintained that although he was appointed as the County Director on 28th February 2013, he was discriminated upon and therefore not promoted. He admitted that he was promoted to Job Group “Q”.

14. On being re-examined, he stated that he was entitled to be promoted to Job Group “R” and not Job Group “Q”.

15. On 26th September 2023, the Respondents witness, Joseph Ng’atotin testified as RW1. He introduced himself as the Assistant Director, Human Resource of the 1st Respondent. RW1 adopted his witness statement recorded on 22nd September 2023 as his evidence in chief. He also adopted and relied on the Respondents bundle of documents filed in court.

16. On being cross examined by Mr. Samba, counsel for the Claimant, RW1 told the court that the Claimant was working in an acting capacity until the post was advertised. RW1 maintained that the Claimant was paid the full acting allowances for the period he served in acting capacity.

17. According to RW1, the Claimant was promoted to Deputy Director on 15th March 2017 in Job Group “Q” and was paid salary for Job Group “Q” as per the Salaries and Remuneration Commission rates.

18. He stated that an Assistant Director position is lower than that of a Director and that an Assistant Director is placed at Job Group “Q” and not Job Group “R”. RW1 reiterated that the Claimant was earning as an Assistant Director under Job Group “Q”.

19. RW1 stated that the Respondents never received any communication of the Claimant’s complaint from the Public Service Commission and that the Respondents did not appeal against the decision of the Public Service Communication.

20. At the close of the Respondents case, the parties filed written submissions. The Claimant’s submissions were filed on 24th November 2023 while the Respondents’ submissions were filed on 23rd January 2024.

Analysis and Determination 21. Having considered the pleadings, the evidence tendered in court as well as the written submissions of the parties, the issues for determination are:i.Whether the Claimant was discriminated by the Respondentsii.What reliefs should then issue

Whether the Claimant was discriminated by the Respondents 22. The Claimant has in his pleadings and testimony contended that he was discriminated by the Respondent on grounds of his ethnicity and as such was not promoted as and when the other officers in the same Job Group with him were promoted.

23. The Respondents in a rebuttal have denied that the Claimant was ever discriminated upon. According to the Respondents, the Claimant was promoted from Job Group “N” to Job Group “Q”.

24. Section 5 of the Employment Act protects employee agianst discrimination in employment. It provides as follows:“(1)(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.”

25. The Claimant avers that he was promoted by Turkana County Government as a County Director of Agriculture on 28th February 2013 while serving in Job Group N and was entitled to be elevated to Job Group “R” as he served as the County Director of Agriculture but the Respondents unlawfully kept him in Job Group “N” until 10th February 2017 when they purported to elevate him to Job Group “Q” a position meant for a County Deputy Director of Agriculture under the scheme of 2007.

26. The Claimant stated that his 2 deputies had been promoted to “Job Q” in 2015 leaving him in Job Group “N” and was later promoted to a job group lower than his entitlement.

27. I have looked at the Deployment letter by the Ministry of Agriculture relating to the Claimant herein dated 28th February 2013 and annexed to the Respondents’ witness statement as Annexure 1 and there is no doubt the Claimant was appointed as a County Director of Agriculture.

28. From Annexure 3 in the Respondents’ witness statement, the Claimant vide a letter dated 24th August 2015 and addressed to the County Secretary of the Respondents wrote:The County Secretary,Turkana County,Box 11 - 30500. LODWARThru'The Chief' Officer,Water, Irrigation and Agriculture.Box M -30300. LOOWARRE: REQUEST TO BE CONFIRMED AS DIRECTOR OF AGRICULTURE.1 wish to request that l be confirmed as the Director of Agriculture, Turkana County and be placed in Job group R. My two deputies are in Job Group Q and I am finding it unease to givedirections to them and the other staff.I was appointed to the position of Director on 28* February 2013 by the then Permanent Secretary Ministry of Agriculture as per the attached letter. I have been in the acting position since then and my two deputies were appointed in February 2015 at Job Group Q from Job Group K.I hold a Masters degree in Agricultural and Rural Development, a Bachelor of Science degree in Agriculture plus several other qualifications as per the attached copies of certificates and Curriculum Vitae.I hope my request will meet your favourable consideration.SignedLAWRENCE OBINO OIGORO1986076291

29. From a scrutiny of the above letter, it is clear that the Claimant was discriminated upon when his two deputies were purportedly promoted to Job Group “Q” while the Claimant remained in Job Group “N”.

30. The Claimant appealed against his discrimination. I have perused the letter dated 9th December 2021 from the Public Service Commission addressed to the Secretary of the 1st Respondent which I reproduced hereunder:Ref: No. PSC/CAP/01/1/(11)9th December, 2021The Secretary,County Public Service BoardCounty Government of TurkanaBox 05-30500LODWARAPPEAL REGARDING CONFIRMATION IN APPOINTMENT TO THE POSITION OF DIRECTOR AGRICULTURE SUBMITTED BY MR. LAWRENCE OBINO OIGORO. SENIOR ASSISTANT DIRECTOR (AGRICULTURE) IK COUNTY PUBLIC SERVICE OF TURKANARef. Letter dated 27. 4.2021This is to inform you that the Public Service Commission has:a.Noted that:(i)The Permanent Secretary, Ministry of Agriculture appointed Mr. Oigoro as the County Director of Agriculture Turkana County with immediate effect vide letter Ref: MOA/HRM/4/4 dated 28th February, 2013:(ii)He requested vide letter dated 24th August 2015 to be placed at Job/Group ‘R’ as his two deputies had been promoted in February, 2015 from Job Group ‘K’ to Job Group ‘Q’. His promotion vide letter dated 10th February, 2017 was to the grade of Deputy Director(Agriculture), Job Group ‘Q’ with effect from 1st July, 2016 and he requested vide letter dated 4th September 2018 for the decision to be reviewed as the post of Deputy Director (Agriculture) was at Job Group ‘R’ as per the Scheme of Service;(iii)The Chief Officer, Water, irrigation and Agriculture confirmed vide letter Ref; TCG/MW1A/EST 1986076291 dated 26th September, 2016 that Mr. Oigoro had been acting as the County Director of Agriculture since 28th February, 2013 and recommended his confirmation to the post;(iv)The County Secretary raised the concern in a letter Ref; 1986076291/12 dated 26th November, 2016 that Mr. Oigoro's colleagues from Turkana County who were inherited by the County Government in advent of devolved services had been confirmed by the County Public Service Board as directors in their respective Ministries;(v)He worked on acting capacity up to the date he attained retirement age of Sixty (60) years on 16th December, 2020:(vi)A request to the CPSB, Turkana for comments on the issues raised in the appeal was not responded to hence the Board did not rebut the appellant’s claim; andb)in view of (a) above decided that:(i)The appeal be allowed:(ii)Mr. Oigoro be deemed to have been appointed at the grade of County Director of Agriculture. Job Group 'R' with effect from 1st February, 2015 (being the date his two deputies were placed at Job Group ‘Q‘ from Job Group ‘K’), to the date of his retirement;(iii)He be paid arrears, being salary and allowances for the period in (ii) above: and(iv)Instructed that Pensions Department be notified to factor in the Commission’s decision while processing Mr. Oigoro’s pension.Take the necessary action accordingly.SignedDr. Simon K. Rotich, CBSSECRETARY/CEOPUBLIC SERVICE COMMISSION

31. Although, the Respondents’ witness in his testimony maintained that the Respondents were not aware of such a letter and that the Respondents never appealed against the recommendations made in the aforesaid letter, it is clear from the contents of the said letter that the Claimant was entitled to be confirmed and remunerated under Job Group “R”.

32. The Recommendations of the Public Service Commission were binding on the Respondents and the allegation that they were not aware of the Public Service Commission’s decision of the Commission.

DIVISION -- What reliefs should then issue? 33. In his Amended statement of Claim, the Claimant sought for the following orders:A declaration of this Honourable Court that the Claimant is entitled to be in Job Group “R” with effect from 1st February 2015 as directed by the Public Service Commission.This prayer is granted as the decision of the Public Service Commission is binding on the Respondents. Among the recommendations as can be seen from the letter dated 9th December 2021 was that the Claimant be deemed to be appointed at the grade of County Director of Agriculture, Job Group “R” with effect from 1st February 2015. Kshs.19,356,689. 48 and any further accrued underpayment till judgment and until payment in full

34. From the document titled Implementation of Job Evaluation Results Phase 1 salary Review for Civil Servants effective 1st July 2017 annexed to the Claimant’s bundle of documents, which was applicable to employees in Civil Service on or after 1st July 2017, the Claimant’s salary being at Job Group “R” was in the scale of Kshs. 115,290 *5570-121,060x6050-127,110x6240-133,350x6420-139,770x6610-146,380x6790-153,170x7430 p.m. In his amended statement of Claim, the Claimant prayed for Kshs. 5,889,808. 00 plus Kshs. 1,203,705 being arrears on account of acting allowance. The Respondents did not rebut this evidence.

35. The prayer for Kshs. 2,000,000 on account of DSA Local & Foreign travel allowances was not proved. Indeed, in his written submissions the Claimant states that the figure is an “estimate”. This being special damages, the Claimant must strictly prove the same. Having not been proved, the claim is declined.

36. I therefore grant the Claimant Kshs 9,003,513 being arrears of salary and allowances.General damages for discriminationThe Claimant was indeed discriminated upon by the Respondents by their actions of promoting his deputies and declining to promote the Claimant. I therefore award the Claimant Kshs 500,000 as compensation for discrimination

37. Consequently, I enter judgment for the Claimant in the following terms;i.A declaration be and is hereby made that the Claimant is entitled to be in Job Group “R” with effect from 1st February 2015. ii.The Claimant is entitled to payment of arrears, being salary and allowances from 1stFebruary, 2015 under Job Group “R” totalling to Kshs 7,003,513. 00. iii.The Claimant is awarded Kshs 500,000 as damages for discrimination.iv.The Claimant is awarded interest on (ii) above at court rates from date of filing suit and on (iii) above from date of Judgment.v.Claimant is awarded costs of the suit.

38. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY ON****THIS 12TH DAY OF APRIL 2024****MAUREEN ONYANGOJUDGE7KTL ELRC NO. 11 OF 2022 JUDGMENT