Beatrice Mathenge v Public Service Commission, Principal Secretary Ministry of Lands Housing and Urban Development (formerly Ministry of Housing) & Attorney General [2017] KEELRC 908 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 983 OF 2013

BEATRICE MATHENGE……………………………………………………………….CLAIMANT

VERSUS

PUBLIC SERVICE COMMISSION………………………………….………………1STRESPONDENT

PRINCIPAL SECRETARY MINISTRY OF LANDS HOUSING AND URBAN DEVELOPMENT

(FORMERLY MINISTRY OF

HOUSING)……………………………………………………………………………..2NDRESPONDENT

ATTORNEY GENERAL………………………………………………….…………….3RDRESPONDENT

JUDGMENT

Introduction

1. Beatrice Mathenge, the Claimant in this case is an Advocate serving as the Deputy Chairperson of the Rent Restriction Tribunal which falls under the Ministry of Lands, Housing and Urban Development (formerly the Ministry of Housing). She brings this claim seeking accrued salary arrears for period between July 2008 and June 2010.

2. The Respondents filed a Reply on 8th August 2013. A preliminary objection on limitation of action, raised by the Respondent was overruled by my brother, Marete J on 27th June 2014. At the main hearing the Claimant testified on her own behalf and the Respondent called Daniel Gitau, a Human Resource Officer based at the State Department of Housing and Urban Development.

The Claimant’s Case

3. The Claimant was employed by the 1st Respondent on 3rd July 2006 and deployed at the 2nd Respondent as Deputy Chairperson of the Rent Restriction Tribunal (Job Group ‘N’). She was promoted severally as follows:

a) On 7th May 2007 she was promoted to Job Group ‘Q’ at an entry salary of Kshs. 77,527 effective 1st July 2007;

b) She was promoted to Job Group ‘R’ at a salary of Kshs. 94,235 effective 11th December 2009;

c) At the time of trial she was at Job Group ‘S’.

4. The Claimant avers that the Government of Kenya, through the Ministry of State for Public Service approved a new salary structure for Legal Officers in the Judiciary and State Law Office effective 1st July 2008. It is her case that she was entitled to benefit from the new salary structure.

5. By letter dated 29th November 2011, the 2nd Respondent informed the Claimant that the new salary structure would take effect from 1st July 2010. The Claimant states that this was contrary to the circular issued by the Ministry of State for Public Service on 1st July 2008.

6. The Claimant’s salary was not adjusted until 1st July 2010. She claims that the adjustment ought to have taken effect from 1st July 2008 when the new salary structure was effected. The Claimant pleads that she was discriminated by the Respondents and now claims salary arrears as follows:

a) July 2008-June 2009:          Kshs. 153,132

b) July 2009-December 2009: Kshs.  84,876

c) January 2010-June 2010:  Kshs.  89,124

The Respondents’ Case

7. In their reply dated 7th August 2013, the Respondents admit that the Claimant was employed as Deputy Chairperson of the Rent Restriction Tribunal entering at Job Group ‘N’ and rising progressively to Job Group ‘R’.

8. The Respondents however aver that the salary structure implemented from 1st July 2008 did not apply to the Chairperson and Deputy Chairperson of the Rent Restriction Tribunal. They add that it was not until 1st July 2010 when the salaries of the two officers were harmonized with those of Legal Officers in the Judiciary and the State Law Office.

Findings and Determination

9. There is only one issue for determination in this case; whether the Claimant is entitled to salary arrears for period between June 2008 and June 2010.

10. The dispute arises from implementation of a circular dated 7th November 2008 issued by the Permanent Secretary, Ministry of State for Public Service communicating approval of revised salaries for Legal Officers in the Judiciary and the State Law Office. The Respondents’ witness, Daniel Gitau told the Court that a request for review of the salaries of the Chairperson and Deputy Chairperson of the Rent Restriction Tribunal in line with the circular was rejected in the first instance. The two officers were however put on a new salary scale from 1st July 2010.

11. The question before the Court is whether the refusal to include the Claimant in the new salary structure for Legal Officers in the Judiciary and the State Law Office was a justifiable action. From the evidence on record, this was not the first time the Claimant had complained about her exclusion from the professional cadre of lawyers serving in the public service. She testified that upon her employment on 3rd July 2006, she was placed under the general Scheme of Service for civil servants.

12. Upon complaint, the Claimant was placed under the Scheme of Service for Legal Officers effective March 2007 and her salary was adjusted accordingly. The latter Scheme titled ‘Scheme of Service for Professional Legal/Judicial

Officers and Law Lecturers’provides as follows:

“Legal Officers in specialized departments or on secondment to other ministries/public bodies may adopt departmental titles for convenience only, otherwise their professional titles, gradings andremuneration will be in accordance with respective appendices inthe Scheme of Service.”

13. The Claimant’s job description is self evident; adjudicating disputes between landlords and tenants in controlled residential premises. This function can only be performed by a qualified Advocate. It seems to me therefore that the above cited provision in the Scheme of Service for Professional Legal/Judicial Officers and Law Lecturers, had offices such as the one occupied by the Claimant in mind. Moreover, having been brought within the ambit of the Scheme of Service for Legal Officers, the Claimant could not lawfully be excluded from a salary review for other Legal officers.

14. At any rate, it would appear that there was a change of mind because on 6th September 2010, the Permanent Secretary, Ministry of State for Public Service wrote to the Permanent Secretary, Ministry of Housing authorising harmonization of the salaries for the Chairperson and Deputy Chairperson of the Rent Restriction Tribunal with those of Legal Officers in the Judiciary and the State Law Office. There was however, no justification for the directive that the new salaries for the two officers would take effect from 1st July 2010 while the other Legal Officers had begun enjoying the new salaries two years before.

15. Overall the Court finds that the Claimant ought to have been placed within the new salary structure for Legal Officers with effect from July 2008. I therefore enter judgment in her favour on account of salary arrears as follows:

a) June 2008-June 2009………………………………………..Kshs. 149,448

b) July 2009-December 2009……………………………………………84,876

c) January 2010-June 2010…………………………………….………..89,124

Total…………………………………………………………………………323,448

16. This amount will attract interest at court rates from the date of judgment until payment in full.

17. The Claimant will have the costs of the case.

18. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBITHIS 21STDAY OF JULY 2017

LINNET NDOLO

JUDGE

Appearance:

Mrs. Mbabu for the Claimant

Miss Chesiyna for the Respondents