a) Introduction

Remuneration remains a contentious issue at the workplace, with discussions surrounding whether employees who perform the same work should be paid the same salary, some have argued that salary is a matter of negotiation and discussion with one’s employer. This would mean that the employee who negotiates the best will definitely be paid more than his fellow colleagues who are performing the same work. On the other hand, some have argued that employees who perform the same work deserve the same pay regardless of any negotiation discussions between employees and employers. They have termed the differential pay between employees performing the same tasks as discriminatory.

b) The Judgment and its implications.

In a recent landmark Judgement in Ogila v Dawa Life Sciences Limited (Cause E598 of 2022) [2025] KEELRC 1144 (KLR) the Nairobi Employment and Labour Relations Court affirmed that employees who perform the same work should be paid equal salaries. In this case, it was the finding of the Court that the Claimant was being paid significantly less than other employees who held managerial positions. Justice Stella Rutto stated that as per Section 5(2) of the Employment Act, an employer is duty-bound to promote equal opportunity in employment and should strive to eliminate discrimination in any employment policy or practice.

In this case, the Claimant claimed discrimination on the basis that he was paid significantly lower than most of his counterparts who held the same position. In proving his claim, he adduced a pay slip from his predecessor who was earning significantly higher than him. The Court noted that their positions were significantly different. His predecessor held the position of Senior Production Manager, and he held the position of Production Manager, and the Court held that this was not sufficient to prove discrimination.

However, what caught the Court’s attention was that, prior to September 2020, the Claimant was the lowest paid senior manager in the team under which he was serving. This position was confirmed by the Claimant’s supervisor who confirmed that he was the lowest earning Manager in his team. The Supervisor noted that the average salary for Managers was sitting at KES.350,000. It was only at the point of the supervisor raising this concern when his salary was increased to KES.350,000. Therefore, in as much as the Claimant may have accepted contractual terms that were less favourable compared to his counterparts, there was a statutory duty on the part of the Respondent to ensure fairness across the board and to strive to eliminate any discriminatory policy or practice in the workplace.

The Court having found that the Claimant was discriminated against, proceeded to award damages of KES.2,000,000.

This Judgement sends a strong signal to employers to eliminate any procedures and policies in relation to the remuneration of their employees. Such discriminative practices can be extinguished by developing robust policies in relation to remuneration to ensure equal pay for employees performing the same work. Employers should be cognizant of the fact that, even though an employee accepts contractual terms with a remuneration that is lower than his fellow employees who are performing the same work, the employer has a statutory obligation to ensure that discriminative practices at the workplace are eliminated. The duty to ensure equal pay does not lie with the employee but with the employer.

c) Looking Beyond the Boarders

The decision also opens up questions about the extent to which employers can justify differentiated pay. In jurisdictions like South Africa, the Employment Equity Regulations, 2025 permit certain justifications for differential treatment—such as seniority, length of service, or qualifications. It remains to be seen whether Kenyan courts will adopt a similarly nuanced approach or continue to apply a stricter standard against pay disparities.

The United Kingdom has taken protection of employees against pay discrimination a notch higher through the enactment of the Equality Act 2010, which makes pay secrecy clauses illegal. Pay secrecy clauses are often used to suppress discussions around salary and, indirectly, to perpetuate pay discrimination, particularly along gender lines. By making such clauses unenforceable, the UK has empowered employees to discuss their pay without fear, which is a vital step toward greater transparency and equality in the workplace. It remains to be seen whether Kenya Could benefit from a similar legal model

Conclusion

The ball is now on the Employer’s Court to ensure that discriminative practices in relation to remuneration are abolished, so as to avoid litigation claims against them on the basis of violation of the Right to equality and freedom from discrimination.

If you have any queries relating to the above or any aspect of this Article, please do not hesitate to contact James Wairoto and Joan Gakure. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.