https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1755

Soi & 5 others v National Crime Research Centre & 2 others (Cause E988 of 2025) [2026] KEELRC 1755 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1755 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E988 of 2025 ON Makau, J June 25, 2026 Between Gladys Chelangat Soi 1st Claimant Chrispinus Adenya Aben 2nd Claimant Sabatian Muthuka Katungati 3rd Claimant Joah Kiprono Rono 4th Claimant John Ngugi Kariuki 5th Claimant Mark Washisino Shiundu 6th Claimant and National Crime Research Centre Respondent and Public Service Commission 1st Interested Party Salaries And Remuneration Commission 2nd Interested Party Judgment 1.The 1st,2nd and 3rd claimants are public officers employed in the State Departments of Probation and Aftercare Services while the 4th,5th and 6th claimants are employed in the State Department of Correctional Services (Kenya Prisons Services- KPS). 2.The respondent is a State Corporation established under section 3 of the National Crime Research Centre Act No4 of 1997 with powers to sue and be sued in its own name. 3.The 1st interested party is a commission established under Article 233 of the Constitution with mandate to oversee human resource in the public service while the 2nd interested party is a commission established under Article 230 of the Constitution with the mandate of recommending payable remuneration to the state and public officers. 4.The respondent is established under the ministry of interior and national security where the claimants are employed on permanent and pensionable terms. In 2016, the respondent wrote to the claimants’ State Departments seeking for deployment of Senior Research Officers to facilitate its operations. The respondent outlined the specific qualifications for the required officers and on 2nd November 2016, the claimants were deployed after being found to posses the requisite qualifications and competency. 5.On arrival at the Respondent, the claimants were issued with letters of allocation of duties and responsibilities as Research Officers under the supervision of a Principal Research Officer. The letters stated that the pursuant to the Public Service Terms and Conditions of Service, their terms would remain the same but they would be eligible to payment of extraneous allowance. 6.Subsequently, the claimants raised grievance about their terms of service and the matter was not resolved despite a decision by the 1st interested party on the matter. In the end the respondent terminated its engagement with the claimants and redeployed them to the ministry citing budgetary constraints. It also advertised the vacancies in the same position which had held by the claimants for seven years. 7.The claimant filed a Statement of Claim dated 8th October 2025, challenging the said decision and action by the respondent and prayed for the following reliefs: -a.An order for specific performance, directing the Respondent to implement the decision of the Public Service Commission conveyed through its letter dated 2nd August 2023;b.A declaration that the Respondent's refusal to engage the Claimants on seconded terms was unfair, wrongful and unlawful;c.A declaration that downgrading of the Claimants' job groups to (8,9,10 &11) instead of job group (5) which is the designated job group for Senior Researchers in the Respondent's institution, was in itself discriminatory, null and void;d.A declaration that the Claimants were entitled to equal remuneration and allowances as those enjoyed by other Senior Researchers in the Respondent's institution;e.A declaration that the Claimants were underpaid by the Respondent throughout their period of engagement and thus entitled to claim underpayment as tabulated in paragraph 28(e) of the Claim;f.An award of general and exemplary damages to each of the Claimants for discrimination and unfair treatment by the Respondent;g.In the alternative to prayer (a) above, an award of one (1) months' salary in lieu of notice to each of the Claimants;h.In the alternative to prayer (a) above, an award of twelve (12) months' salary to each of the Claimants as compensation for unlawful termination;i.In the alternative to prayer (a) above, an order that each of the Claimants be issued with a Certificate of Service by the Respondent;j.Interest at Court rate on the above award from date of filing the suit till payment in full; andk.Costs of the suit. 8.The Respondent filed a Response to Statement of Claim dated 17th November 2025 denying the Claimants' allegations. It further averred that the Claimants were not its employees but officers deployed from the Ministry on temporary assignment to assist in research activities. For the said reason, the Respondent averred that this court lacks jurisdiction to entertain this suit 9.It further averred that the operational policy as at the time of deployment in 2016 was the Human Resource Manual 2009 Revised in 2012, which differentiates between persons on deployment and secondment from employees of the Respondent. The Respondent averred that the Claimants were deployed as Research Officers and not Senior Research Officers and that their equivalence was done using their job groups. 10.The Respondent further averred that Section 3(2)(b) of the Employment Act expressly excludes uniformed officers under the Prisons Service from its application, thus ousting this Court's jurisdiction in respect of the 4th, 5th and 6th Claimants. The Respondent prayed for the Statement of Claim to be struck out for want of jurisdiction, or in the alternative, dismissed with costs. 11.The Claimants filed a Reply to the Statement of Response dated 20th November 2025 reiterating the averments in their Statement of Claim and denied the Respondent's allegations. They further averred that the Respondent's Human Resource Manual (2009) is the only instrument approve by State Corporation Advisory Committee (SCAC) while the alleged 2012 edition was never approved by the SCAC and thus devoid of legal validity. 12.They averred that under the respondent’s HR Manual (2009), all the employees deployed to the institution were deemed to be on secondment. They further averred that there was employment relationship between them and the respondent because it issued the with appointment letters, gave them reporting lines, issued them with staff cards and even approved their leave applications. 13.They maintained that they were deployed to the respondent as Senior Research Officers in line with the request by the respondent and averred that they were entitled to the same compensation as the respondent’s employees who were on permanent terms. They further averred that they were discriminated against and disadvantaged by the respondent when it downgrading them to Job Grade 8,9,10 and 11 which essentially placed them in the same level as Drivers, Telephone Operators, Support Staff and Administrative Officers. 14.They also averred that there service to the respondent fell under the ambit of the Employment Act and therefore their claim for underpayment are justified as they were entitled to the same remuneration as the other Senior Research Officers employed permanently by the respondent. 15.The 1st Interested Party filed a Response to the Statement of Claim dated 3rd November 2025 admitting that it directed the Respondent to second the Claimants vide letters dated 20th July 2023 and 2nd August 2023 but the Respondent declined to implement the directives. It averred that it made the said directive in exercise of its constitutional and statutory mandate. Evidence 16.The 2nd Claimant, Chrispinus Adenya Aben, testified as CW1 and adopted a Joint Witness Statement dated 27th November 2025, as his evidence in chief. He also produced 19 documents marked as Exhibits. His evidence covered all the other claimants in the suit. 17.In brief, he testified that he is an Assistant Director of Probation and Aftercare Services and together with the other Claimants were deployed to the respondent as senior researchers in November 2016 upon request by the respondent. soon after settling they were allocated duties as Research Officers, a designation that never existed in the respondent’s HR Manual of 2009. They also learned that the other senior research officers permanently employed by the respondent were receiving higher allowances and remuneration than the claimants despite doing the same job. 18.He contended that the respondent’s HR Manual in place when they were deployed to the centre was the 2009 edition which provided that deployment to the centre meant secondment. He contended that the said HR Manual was the only one approved by the SCAC and posted on the respondent’s official website, www.crimeresearch.go.ke. He contended that the 2012 revised edition of the HR Manual, cited by the respondent is not valid because it was never approved by the SCAC and posted on the respondent’s website. 19.He maintained that all the claimants were on secondment to the respondent and they are entitled to the dues computed in the schedule to the statement of claim. He described the respondent’s action as unfair labour practices and despite the intervention by the 1st interested party vide a decision dated 20th July 2023 and 2nd August 2023, he respondent has declined to remedy and discharged the claimants with immediate effect. There were also not issued with any certificate of service by the respondent. therefore he prayed for judgment against the respondent in terms of the reliefs set out in the statement of claim. 20.On cross-examination by Ms. Akuno for the Respondent, CW1 admitted that the tabulations in the statement of claim and witness statement are different. He also admitted that he had not filed payslips to support the claim. He also admitted that from November 2016 to August 2023, they were deployed to the National Crime Research Centre as researchers. Their salary and their promotion also came from by the Ministry, while the respondent paid their allowances. He confirmed he was under a pension scheme but contended that the 2009 Human Resource Manual entitled him to gratuity. 21.He admitted that he was an employee of the Ministry deployed to the Respondent and that the basis of his claim is the 2009 HR Manual. He denied being aware that the 2009 HR Manual was revised in 2012. He admitted that after the Public Service Commission recommended conversion of their engagement from deployment to secondment, the Attorney General gave an opinion that conversion was not possible due to lack of funds. He confirmed that the Attorney General is the Chairperson of the Crime Research Centre. 22.On cross-examination by Ms. Muthoni for the 2nd Interested Party, CW1 confirmed that the HR Manual of 2009 was applicable to their service between November 2016 and August 2023 while working for the Respondent. 23.In re-examination, CW1 stated that he was being paid allowances by the Respondent, and that they were never issued with any payslips by the Respondent. From November 2016 to June 2019, payment was by cash and signing of vouchers or schedules. From July 2019 to August 2023, payment was through the bank. He stated that all copies of the payment vouchers were retained and they are in the custody of the Respondent. He contended that the law obligates the Respondent to issue payslips or evidence of payment. 24.The Respondent called its Principal Human Resource Officer and the Head of HR, Mr. Ronald Tsuma Ruwa, who testified as RW1. He adopted his witness statement dated 17th November 2025 as his evidence in chief. He produced a bundle of 18 documents marked as Exhibits. 25.In brief, he testified that the Claimants were deployed to the Respondent and not seconded. He explained that deployment is a temporary arrangement where staff are borrowed from a parent institution, and the parent institution pays their salaries and allowances. He further explained that secondment is also a temporary arrangement but the receiving institution pays salaries and allowances. 26.He testified that the Human Resource Manual applicable to the Claimants was the 2009 Human Resource Manual revised in 2012. He stated that the Claimants were not entitled to research allowances because it did not appear in the Public Service Commission guidelines and the Salaries and Remuneration Commission did not approve the same. 27.On cross-examination by Mr. Oningo for the Claimants, RW1 admitted that at some point the Respondent's Board approved payment of the allowance to the Claimants, but the Salaries and Remuneration Commission did not approve the same. He confirmed that the Claimants were paid extraneous allowances and research allowance, but that did not make them employees of the Respondent. 28.He admitted that that the HR Policy Manual of the respondent is published in its website. He further admitted that there is a procedure for revising a HR Policy Manual and the respondent’s Board did so. He admitted that he did not filed the minutes of the Board that approved the revision of the 2009 Human Resource Manual. 29.He contended that the claimants were deployed to serve as Senior Research Assistants. He admitted that they served for seven years and contended that deployment does not have time frame. He confirmed that the Respondent never issued the Claimants with payslips. 30.He confirmed that the Public Service Commission directed the Respondent to convert the Claimants' terms and subsequently it dismissed the Respondent's request for rescinding of the directive for absorption of the Claimants. He contended that the respondent wrote through the parent Ministry seeking funds for secondment but no allocation was made. 31.He admitted that the commission has constitutional mandate to advise on public service, but since there was were funds, the respondent sought advisory opinion from the Attorney General, who is the principal legal advisor. 32.He confirmed that the respondent advertised for recruitment because the funds availed were for recruitment and not secondment. 33.On cross-examination by Ms. Muthoni for the 2nd Interested Party, RW1 stated that the applicable Human Resource Policy is that of the Public Service Commission, not the Respondent's. He stated that the Respondent's Human Resource Manual provides for deployment to the institution, and that in deployment, the parent department pays the staff salary and allowances. He stated that the Claimants earned pension from their parent departments for the period of deployment and cannot earn gratuity for the same period from the Respondent. 34.In reexamination, he contended that the claimants never requested for prove of the procedure followed in the approval of revised the Manual. He contended that the claimants also did not prove that there were funds for secondment. 1st Interested Party's Case 35.The 1st Interested Party called its the Director of Human Resource Management and Development, John Kimani Njorio as the IPW2. He adopted his witness statement dated 21st November 2025 as his evidence in chief and produced 5 documents marked as Exhibits. 36.RW1 testified that the mandate of the Public Service Commission is provided for under the Public Service Commission Act, 2017, the Public Service Commission Regulations, 2020, and the Public Service Commission Policies and Procedure Manual, 2016. He stated that there is no 2012 manual in existence. 37.He explained that, deployment is a temporary measure to assist an institution, while secondment is an appointment in another institution. He clarified that in case a new institution created from an institution, the mother institution deploys staff to the newly created entity, and the staff so deployed are deemed to be on secondment until they are appointment permanently, or they revert to the mother institution. He cited Regulation 37(12) of the Public Service Commission Regulations, 2020 to support his contention. 38.He testified that the Respondent was created as a new and autonomous body under the Ministry of Interior and the Claimants were deployed from the same Ministry. He contended that the respondent declined secondment of the claimants under Regulation 37(12) until it had established a pension scheme. 39.He stated that from 2016, State Departments requested for secondment apportion of Claimants, but the Respondent refused and the Department sought the Public Service Commission's advice. The Public Service Commission, pursuant to its mandate, recommended for secondment on 28th July 2023, but the Respondent declined citing lack of funds. The Public Service Commission considered the reason and found it unreasonable because by the 2022/2023 budget, the Respondent could have funded the secondment. 40.He contended that the since the claimants were already in the respondent’s service, it would have been easy to get funds allocated. He contended that allocation for existing staff is easier than for fresh recruitment. 41.On cross-examination by Mr. Oningo for the Claimants, RW1 stated that the Respondent never provided any proof that they sought budget allocation but were denied. He stated that failure by the Respondent to comply with the recommendation of the Public Service Commission constitutes an offence under Regulation 9(1) and 9(3) of the Public Service Commission Regulations. He stated that the applicable Human Resource Manual of the Respondent must adopt the principles in the law and the Public Service Commission Manual, and in the event of conflict, the Public Service Commission takes precedence. 42.On cross-examination by Ms. Akuno for the Respondent, RW1 admitted that the Public Service Commission never received the Attorney General's opinion and as such it did not appeal against the opinion. He stated that if the Court finds that the Claimants were on secondment, the payment will be the difference between what was paid and what ought to have been paid. 43.On cross-examination by Ms. Muthoni for the 2nd Interested Party, RW1 stated that the Respondent advertised for fresh recruitment in contravention of the decision of the Public Service Commission and that the recruitment is irregular. 44.The 2nd Interested Party did not file any witness statements and therefore it closed its case without calling any witness. 45.After the close of the hearing, the claimant, the respondent and the 1st Interested Party filed written submissions urging the court to find in their favour. Having considered the pleadings, evidence and submissions, I have no doubt that the 1st, 2nd and 3rd Claimants Claimants were employees of the Probation and Aftercare Services while the 4th, 5th and 6th Claimants were employees of the Kenya Prisons Service. I am also clear that all the claimants were deployed to the respondent in November 2016 upon its request. 46.The following issues fell for determination: -a.Whether the deployment of Claimants to the Respondent amounted to a secondment.b.Whether the Respondent's failure to engage the Claimants on secondment terms was unlawful, discriminatory, and an unfair labour practices.c.Whether the directive by the Public Service Commission for appointment of the claimants on secondment terms was binding on the Respondent.d.Whether the Advisory by the Attorney General could override the Directive by the Public Service Commission.e.Whether the Claimants are entitled to the reliefs sought. Analysis a. Whether the Claimants’ the deployment to the respondent amounted secondment. 47.The Claimants contended that under the Respondent's 2009 Human Resource Manual, all employees deployed to the Centre were deemed to be on secondment for a period of three years. However, the Respondent contended that the operational policy as at 2016 when the claimants were deployed was the Human Resource Manual 2009 Revised in 2012, which differentiates between deployment, secondment, and appointment. 48.The Claimants produced extracts from the Respondent's 2009 Human Resource Manual as Exhibit 8. Clause 5.5.3 of the said manual provided that: -“All employees deployed to the Centre shall be deemed to be on secondment for a period of three (3) years from the date of deployment. During the period of secondment, the employees will draw emoluments from the Centre..." 49.The Respondent produced extracts from the 2012 Revised Human Resource Manual Exhibit D.7. Clause 5.5.3 of the said manual provided:“Employees shall be on secondment to the Centre for a period of three (3) years. During the period of secondment, the employees will draw emoluments from the Centre..." 50.The Claimants contested the validity of the 2012 Revised manual on the ground that it was never approved by the State Corporations Advisory Committee (SCAC). The Claimants also produced print out of the Respondent's official website as Exhibit 10, to prove that the 2009 HR Manual is only one published. 51.RW1 did not adduce any evidence to prove the validity of the 2012 revised edition despite the same having been challenged by the claimants in their Reply to the Defence and also their Joint Witness Statement. Her only evidence was that the claimants did not request for that proof. He also admitted during cross-examination that he had not filed the minutes of the respondent’s Board vide which the revised HR Manual was approved. 52.The IPW1 (John Kimani Njorio), testified that there is no 2012 HR Manual in existence and stated that the applicable framework is the Public Service Commission Regulations, 2020 and the Human Resource Policies and Procedures Manual for the Public Service, 2016. He contended that Regulation 37(12) of the Public Service Commission Regulations, 2020 provides for the movement of public officers between public service organizations. 53.The witness explained that deployment is a temporary administrative measure to cushion an organization against staffing shortages, while secondment is a structured temporary transfer where the receiving institution pays salaries and allowances. 54.CW1 admitted that his salary was paid by his parent ministry, while the Respondent paid them allowances. However, IPW1 clarified that were a new entity is created from another, the mother entity deploys employees to the new entity and the employees are deemed to be on secondment until they are formally appointed or discharged. 55.There is no doubt that the respondent was created under the Ministry of Interior and National Security and it requested the parent Ministry for deployment of Senior Research Officers to mitigate the shortage of Researchers in the Centre. At the time of the deployment the respondent’s HR Manual provided that the officers deployed to the Centre were deemed to on secondment. 56.Having carefully evaluated the evidence on record, I find merits in the evidence by the CW1 and the IPW1 that the deployment of claimants to the respondent amounted to secondment. They were temporarily released from the Ministry to the respondent, which is a distinct entity with separate legal personality, to offer critical skills as Senior Research Officers. This conclusion is fortified by the definition of deployment and secondment in the Public Service Regulations. Deployment is defined as: -“the distribution of public officers within a public body and without charge of grade.” 57.On the other hand, secondment is defined as follows: -“the temporary release of a pensionable employee from an organization within the public service to another organization, to provide critical skills or to acquire new skills while preserving the pension rights of the employee.” 58.As admitted by the respondent, the respondent had not received budget allocation for secondment, and that explains why the parent Ministry continued to pay the claimants their salaries and the respondent paid them allowances only. The failure to pay the salaries to the claimant did not change the fact that they were temporarily released by their substantive employer in the public service to serve another entity in the public service. 59.Having concluded that the claimants’ deployment amounted to secondment, I also find that the respondent was obliged to treat them as its employees during the period they served it, and it ought to have paid them the proper salaries, house allowance, commuter allowance and pension. b. Was the failure to accord the Claimants secondment status unlawful, discriminatory, and unfair labour practice? 60.The Claimants alleged that they were discriminated against because they were downgraded to job groups 8,9,10 & 11 instead of job group 5, which is the designated job group for Senior Researchers in the Respondent's institution. As a result, they were paid lower allowances than permanent Senior Researchers. 61.The Respondent submitted that the Claimants were deployed as Research Officers and not Senior Research Officers, and that the Respondent relied on the equivalence of their job groups with the Respondent's Grading Structure. The Respondent produced a table showing the equivalence:i.Gladys Chelangat Soi - Job Group L equivalent to NCRC 8ii.Chrispinus Adenya Aben - Job Group L equivalent to NCRC 8iii.Sabastian Muthuka Katungati - Job Group K equivalent to NCRC 9iv.Joash Kiprotich Rono - PG 5/Job Group J equivalent to NCRC 10v.John Ngugi Kariuki - PG 5/Job Group J equivalent to NCRC 10vi.Mark Washisino Shiundu - PG 3/Job Group H equivalent to NCRC 11 62.RW1 explained that in the public service, a public officer earns a Job Group from their respective employer, not a job title. She contended that, despite the Respondent having requested Senior Research Officers, the Respondent could not equate the Claimants to NCRC 5, (equivalent to Job Group P), as this would have been inconsistent with their substantive job groups from their parent institutions. 63.The Claimants alleged that they were discriminated against but the Respondent submitted that the Claimants had failed to establish a prima facie case of discrimination. Section 5(2) and (3) of the Employment Act, 2007 gives effect to Article 27 of the Constitution and cautions employers against discrimination in the following terms:-“(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.” 64.On the hand, Article 1 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) has also defined discrimination. It states as follows:“1.For the purpose of this Convention the term discrimination includes—(a)any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;(b)such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative of employers' and workers' organizations, where such exist, and with other appropriate bodies.” 65.The Supreme Court also defined discrimination in the case of Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) as follows:“… where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex, disability etc or due to unfair practice and without any objective and reasonable justification.” 66.In Kenyatta University v Thomas & 25 Others[2024] KECA 843 (KLR), the Court of Appeal held that differential treatment does not amount to discrimination where employees perform different roles or are in distinct categories of employment. Also, in Kimathi v Ericsson Kenya limited [2023] KECA 106(KLR) the Court of Appeal reiterated that employers must promote equality in employment but distinction based on legitimate operational or job- related reasons do not amount to discrimination. 67.The legal principle emerging from the foregoing is that discrimination occurs where a person is excluded or treated differently from others in similar circumstances without objective justification. 68.Section 5(7) of the Employment Act, 2007 provides that once discrimination is alleged, the employer bears the burden of disproving it. However, in Samson Gwer & 5 Others v Kenya Medical Research Institute & 3 Others [2013]KEELRC 379 (KLR), the court held that the initial evidential burden lies on the claimant to first establish a prima facie case that a discrimination has occurred, before the burden shifts to the employer to disprove the same. 69.In this case, the Claimants produced letters of allocation of duties which designated them as Research Officers yet they were deployed as Senior Research Officers having met the qualifications and competency requested by the respondent. 70.They also produced payment schedules showing that they were paid less allowances than their counterparts who were permanently employed by the respondent, and placed in job group 5 yet they performed the same duties under similar circumstances. 71.In the circumstances, I find that the claimants have demonstrated a prima facie case that the alleged differential treatment was true. Even though the Claimants were deployed officers, I have already made a finding of fact that they were indeed on secondment. 72.The Respondent contended that Section 3(2)(b) of the Employment Act, 2007 expressly excludes uniformed officers under the Prisons Service from application the Act, thus this Court has no jurisdiction in respect of the 4th, 5th and 6th Claimants’ case. Impliedly, the respondent’s submission is that the 4th ,5th and 6th claimants were excluded from the terms of employment enjoyed by the respondent’s permanent employees because they were uniformed officers. 73.I find no merits in that explanation because, once the officers were deployed to the respondent, they were allocated duties as Researches for the respondent and not for the substantive employers. Under the secondment, they were under fresh mandate with new tasks different from their substantive employment. They were also deployed there to offer specialized skills and competences which may not have been used in their parent Ministry. They were therefore entitled to freedom from discrimination, right to equality, right to fair labour practices and right to be treated with dignity. 74.The right to fair labour practices is wide and it includes the right to fair remuneration. The right to fair remuneration then includes the right to receive equal pay for performing work of equal value. All employees regardless of their gender, ethnicity, or background must paid equally for performing tasks that require the same level of skills, responsibilities and effort. 75.The claimants herein were not paid equally with the other researchers who were permanently employed, yet they performed the same tasks, using the same skills and competencies, as demonstrated by evidence and submissions presented by both sides. Instead the claimants were placed at lower job grades designated for Drivers and Office Assistants 76.On the basis of the observations and finding made above, I hold that, the failure by the respondent to accord the claimants the status of secondment from November 2016 to the August or September 2023 was unlawful, discriminatory and unfair labour practice. c. Whether the directive by the Public Service Commission is binding on the Respondent 77.The Public Service Commission, through letters dated 20th July 2023 and 2nd August 2023 (Exhibits 12), directed the Respondent to second the Claimants for an initial period of three years with effect from 1st July 2023. The Respondent declined to implement the directive, citing lack of budgetary allocation. The Respondent appealed to the Public Service Commission to rescind its decision, but the Commission declined through letters dated 24th July 2024 and 12th March 2025 (Exhibits 17). 78.The 1st Interested Party submitted that it is a constitutional commission established under Article 233 of the Constitution, with functions and powers enshrined in Article 234. Article 234(2) provides that the Commission shall, inter alia:“(d)investigate, monitor, and evaluate the organisation, administration, and personnel practices of the public service;(e)ensure that the public service is efficient and effective;(f)develop human resources in the public service.” 79.The 1st Interested Party further relied on Regulation 37 of the Public Service Commission Regulations, 2020 and Clause B.33 of the Human Resource Policies and Procedures Manual (2016), which define secondment as the temporary transfer of an officer from one public service organization to another without loss of remuneration or benefits, with the receiving institution obligated to maintain the officer's substantive terms or provide equivalent terms. 80.The 1st Interested Party submitted that deployment is an administrative stopgap mechanism addressing short-term staffing needs and is not designed for extended engagement. The Claimants had been on deployment for seven years, which is inconsistent with regulatory intent. The Commission's decision to regularize the Claimants' status through secondment was therefore grounded in the governing legal and policy framework. 81.The 1st Interested Party cited the case of Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR, where the High Court held that a statutory body is bound to operate strictly within its statutory limits and in accordance with the Constitution. 82.The Respondent, on the other hand, submitted that it could not be compelled to implement the directive due to lack of budgetary provision. The Respondent relied on Section 42(4)(d) of the Public Service Act, Cap 185, which provides that the Commission shall not approve secondment if it would bring the public service or the public officer into disrepute. The Respondent also relied on Article 201 of the Constitution on responsible management of public funds, Article 226(5) on personal liability of public officials and Section 197(h) of the Public Finance Management Act, 2012 on unlawful expenditure. 83.The Respondent further relied on the advisory opinion from the Office of the Attorney General, which advised that the Public Service Commission's directive could not compel secondment without budgetary approval. 84.The 1st Interested Party countered that budget cycles are annual and adjustable, and that public institutions have the ability to seek allocations in subsequent financial years. The 1st Interested Party submitted that administrative inconvenience does not override constitutional compliance, and that the absence of immediate budgetary allocation does not extinguish a lawful staffing decision made pursuant to Article 234. 85.Having considered the submissions, I find that the Public Service Commission acted within its constitutional mandate under Article 234 of the Constitution in directing the secondment of the Claimants. The Commission is constitutionally mandated to ensure efficiency and effectiveness in the public service, to investigate personnel practices, and to develop human resources. The decision to regularize the Claimants' status after seven years of deployment was a lawful exercise of that mandate and it was binding on the respondent. d. Whether the Advisory by the Attorney General could override the Directive by the Public Service Commission 86.The Respondent sought an advisory opinion from the Office of the Attorney General, about the directive given by the Public Service Commission on the secondment of the claimants and the response received was that, the Public Service Commission's directive could not compel secondment without budgetary approval. 87.The Respondent submitted that as a public institution, it was obligated to adhere to the advisory under Article 156(4)(a) of the Constitution, which provides that the Attorney General is the legal adviser to the Government. However, the Claimants submitted that an advisory opinion from the Attorney General cannot override a directive issued by a constitutionally mandated commission exercising its constitutional and statutory powers. 88.The Supreme Court’s Advisory Opinion in the Matter of the Interim Independent Electoral Commission [2011] eKLR, held that commissions exercise of their mandates independently and that no other State organ can issue a directive that overrides the decisions of a constitutionally established independent body,while operating within its own constitutional lane. The Court observed that:“Commissions and Independent offices, in carrying out their functions are not to take orders or instructions from organs or persons outside their ambit. These Commissions or Independent offices must, however, operate within the terms of the Constitution and the law.” 89.In the case of Independent Electoral and Boundaries Commission v. Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal held that Constitutional Commissions are insulated from interference by other State organs and that their decisions within their mandate are binding unless lawfully set aside by a Court of competent jurisdiction. 90.In Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal held that legal opinions rendered by the Attorney General, while entitled to professional respect, are advisory in nature and do not have the force of binding legal authority. They cannot override decisions made by bodies exercising statutory or constitutional power. 91.Having sought guidance considered from the cited precedents, I find that an advisory opinion from the Attorney General cannot override a directive issued by the Public Service Commission in exercise of its constitutional and statutory mandate. The Attorney General's office and the Public Service Commission occupy different constitutional spaces. Neither has authority over the other in matters falling within their respective mandates. In any event the no evidence was adduced to show that the directive given by the Commission was not made within its lane of its constitutional mandate. e. Whether the Claimants are entitled to the reliefs sought 92.The Claimants sought a number of reliefs and I now proceed to address each category of relief. i. Specific performance for secondment 93.The primary prayer was for an order of specific performance directing the Respondent to implement the Public Service Commission's decision to second the Claimants with effect from 1st July 2023. The Claimants were released back to their parent institutions on 31st August 2023 and 7th September 2023, and the employment relationship between the Claimants and the Respondent ended. 94.It follows that prayer for an order for specific performance of a secondment is overtaken by events as neither the claimants nor the 1st Interested Party has demonstrated that the said relief is practicable. Therefore, I decline to grant the prayer for specific performance. ii. Declarations on secondment and downgrading 95.The Claimants sought declarations that the Respondent's refusal to engage them on seconded terms was unfair, wrongful and unlawful and that downgrading their job groups was discriminatory. I have already affirmed the above contention and therefore I the find that the claimants are entitled to the declaration sought. iii. Underpayment claim (Field Study, Salary Differential, Gratuity) 96.The Claimants claimed Kshs. 86,294,023.60 for field study underpayment, salary differential from December 2016 to August 2023, and 31% gratuity. The Respondent submitted that these claims are unsubstantiated, speculative, and unsupported by evidence. 97.Section 107 and 109 of the Evidence Act provide that the burden of proof lies with the person who asserts the existence of a fact. It is also trite law that monetary claims in employment disputes must be particularized and supported by evidence. The evidence should ordinarily be documentary evidence such as employment contracts, payslips, payroll records, or official correspondence showing entitlement, or where necessary, by oral evidence from fellow employees . 98.In this case the claimants have computed the monetary claim in schedules appearing in page 40 to 70 of the claimants’ bundle of exhibits, and paragraph 28 (e) in the Statement of Claim. I have already made a finding of fact that the claimants were on secondment to the respondent from November 2016 to August/September 2023 and therefore they were entitled to the same job grades, salaries and allowances with the other Senior Research Officers employed by the respondent on permanent basis. 99.The IPW1 testified that if the court finds that the claimants were on secondment to the respondent, then they should be awarded the difference between the salaries and allowances they received and what they ought to have been paid during the period under review. I agree with that view save to add that the sum computed by the claimants need verification. Due to the volume of documents, length of period and the amounts involved, I direct the respondent’s CEO to compute the total amount that ought to have been paid between November 2016 and August/September 2023, what was paid, and indicate the outstanding balance that is due to them from the respondent. 100.As regard the prayer for gratuity, Clause 5.5.3 of the respondent’s HR Manual 2009 did not entitled the claimants to that benefit. Under Clause 5.5.2 of the Manual, gratuity was only reserved for the employees appointed on contract terms. Consequently, the prayer for gratuity is declined. The court makes a reasonable presumption that since the claimant’s continued receiving their salaries from the Ministry, their pension was taken care of by the Ministry during the entire period under review. iv. General and exemplary damages 101.The Claimants prayed for general and exemplary damages for discrimination and unfair treatment. I have already made a finding of fact that the claimants were discriminated against in terms of their job grading and remuneration by the respondent. The respondent did not give any justifiable reason since, as acknowledged by the Public service commission, it was not a difficult task for it to seek budget allocation to fund the claimants’ secondment. 102.The respondent also never showed any remorse for its actions even before this court and the Public Service Commission. In the circumstances, I find that treating public officers differently from other public officers in the same institution, for seven years, while performing the same tasks and holding the same qualifications amounts to a serious violation of their fundamental rights and freedom under the Bill of Rights. Therefore, I award each claimant Kshs. 2000,000 for discrimination, unfair treatment and breach of their right unfair labour practices. I have sought guidance on the quantum of damages from Ol Pajeta Ranching Ltd v Muhoro,supra, where the Court of Appeal awarded Kshs.7,500,000 for discrimination at the workplace. v. Salary in lieu of notice pay, compensation, and certificate of service 103.The Claimants prayed for one month's salary in lieu of notice, twelve months' compensation for unlawful termination, and a certificate of service. These reliefs are predicated on the existence of an employer-employee relationship under the Employment Act, 2007 and are meant to cushion an employee after losing employment. In this case the claimants did not lose their employment but were discharged to go back to their substantive employers. Therefore, I find that they are not entitled to the salary in lieu of notice and compensation for unlawful termination. 104.As regards certificates of service, the claimants were in an employer-employee relationship with the respondent from November 2016 to August/September 2023 when they were discharged. Under section 51 of the Employment Act they are entitled to certificate of service from the respondent for the said period. Such certificates do not cost the employer any money, and order the respondent to issue them within 30 days of this judgment. Conclusion 105.I have found that the deployment of the Claimants to the Respondent amounted to secondment and as such the failure by the respondent to accord them secondment status and the attendant benefits was unlawful, discriminatory and unfair labour practices. I have further found that the claimants are entitled some of the reliefs sought in the Claim. Consequently, I enter judgment as follows:a.A declaration be and hereby made that the Respondent's refusal to engage the Claimants on seconded terms was unfair, wrongful and unlawful;b.A declaration be and hereby made that downgrading of the Claimants' job groups to (8,9,10 &11) instead of job group (5) which is the designated job group for Senior Researchers in the Respondent's institution, was in itself discriminatory, null and void;c.A declaration be and hereby made that the Claimants were entitled to equal remuneration and allowances as those enjoyed by other Senior Researchers in the Respondent's institution;d.A declaration be and hereby made that the Claimants were underpaid by the Respondent throughout their period of engagement and thus entitled to claim for underpayment as tabulated in paragraph 28(e) of the Claim, subject to verification/computation as directed above;e.The verification report shall be filed within thirty (30) days of this judgment.f.Each claimant is awarded Kshs. 2000,000 as general damages for discrimination and unfair treatment by the Respondent;g.The respondent is ordered to issue each Claimants with a Certificate of Service for the period of their service to it;h.The claimants are awarded costs and interest at Court rate from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Oningo Advocate for ClaimantN/A for RespondentN/A for the 1st Interested PartyMunthomi Advocate for the 2nd Interested party.