The Employment and Labour Relations Court at Nairobi has declined to determine a petition by a civil servant claiming more than Sh 574,000 in salary arrears.
Instead, Justice Jemimah Keli referred the matter to the Public Service Commission for resolution.
Justice Keli ruled that the dispute between James Eledi and the Department for Immigration and Citizen Services should first be handled by the constitutional body mandated to oversee personnel practices in the public service.
The petitioner, who was due to retire on August 31, 2025, had alleged systematic underpayment following three promotions between 2020 and 2024.
Eledi joined as a clerical officer in job group D and was promoted to civil registration assistant II in job group J in January 2020, civil registration assistant I in job group K in May 2021 and senior assistant social development officer in job group L in July 2024, all of which were allegedly not accompanied by corresponding salary adjustments.
"It is the petitioner’s case that, while salaries for civil servants are reviewed according to the salary review reports for civil servants in the national government, the first respondent completely disregarded the salary review reports of 2019, 2020, 2023 and 2024 when determining the petitioner’s salary after his promotions and failed to make the necessary adjustments,” the court heard.
Conversely, all other civil servants were paid in accordance with the public service salary review report and the review salary guide for civil servants in the national government.
The petitioner said his payslips for the period from January 2020 to June 2025 clearly indicate payment discrepancies and underpayments, which did not comply with the salary review reports and review scale. He was never paid salaries corresponding with his adjusted job groups.
It was the petitioner's case that he was discriminated against and treated unequally compared to other officers in the same job groups who received appropriate remuneration, terming it economic discrimination.
Eledi averred that the conduct resulted in indirect discrimination, since he was unfairly singled out through administrative neglect and denied salary increments automatically applied for other similarly promoted officers.
The department admitted there were some arrears due to the petitioner but stated these had been calculated and paid.
They tabulated a total underpayment of Sh119,814 after offsetting an overpayment of Sh83,360. The first respondent confirmed that the alleged salary of Sh41,260 per month which was reflected on the pay slip in January 2021 was erroneous and had been corrected.
The Public Service Commission acknowledged that the civil registration department had sent erroneous information affecting the petitioner's transition and subsequent promotion.
"The instant dispute on payable salary can be resolved by the 2nd respondent under its mandate," the judge ruled.
She cited the Supreme Court decision which relied on the principle of constitutional avoidance.
"Where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed."
Justice Keli invoked Rule 56 of the ELRC Rules and referred the dispute for resolution by the Public Service Commission, directing the 2nd respondent to file its decision within 45 days.
The court will make final orders on constitutional violations and remedies after a mention on September 21.
