WHEN INTERNAL POLICIES COLLIDE WITH THE LAW: LESSONS FROM OGILA V DAWA LIFE SCIENCES LIMITED

INTRODUCTION

This Article analyses the decision in Ogila v Dawa Life Sciences Limited [2025] KEELRC 1144 (KLR), with a particular focus on two key issues being the principle of equal pay for work of equal value and the legality of forfeiting accrued leave.

Equal pay for equal work

Article 27 of the Constitution guarantees equality and freedom from discrimination, while Section 5(5) of the Employment Act requires equal remuneration for work of equal value.

In Ogila v Dawa Life Sciences Limited [2025] KEELRC 1144 (KLR), the Claimant cited discrimination, arguing that he was the lowest-paid senior manager despite performing equivalent duties to his colleagues. The Respondent’s defence was that he had accepted his contractual terms. The Court rejected this defence, holding that contractual acceptance cannot override constitutional and statutory obligations.  That compliance with Section 5 of the Employment Act and Article 27 of the Constitution cannot be contracted away. The court held that the unjustified pay disparity was unlawful and that the Claimant’s right to equal remuneration had been violated.

The legal threshold for establishing discrimination was discussed in Mwangi v Mpala Research Centre [2024] KEELRC 845 (KLR) where the court outlined the criteria that the Claimant must satisfy, including demonstrating comparable qualifications, experience and work responsibilities with real, not hypothetical comparators.

Kenyan courts have been keen on protecting employees from discrimination and violation of their right to equal remuneration. It is insignificant that an employee may have voluntarily accepted contractual terms providing for lower wages than other employees doing similar work or work of comparable value. Employers should therefore be keen to ensure that employees performing work of equal or comparable value receive equal remuneration.

Employees’ entitlement to accrued leave days

The Claimant, in the Ogila Case, also sought compensation for 48.9 leave days, claiming that 24.9 days were unlawfully reduced from his accrued leave days following an internal memo that allowed only 7 days of the accrued and unutilised leave to be carried forward.

The court agreed with the Claimant, citing Section 28(4) of the Employment Act, which allows employees to take accrued leave within 18 months of the leave-earning period. The Court held that this provision could not be substituted with an internal memo.

The key takeaway is that employees are entitled to statutory annual leave, and this entitlement cannot be taken away through internal memos or policies, as they cannot override clear provisions of the law.

CONCLUSION

Unjustified pay disparity for employees doing work of equal or comparable value is discriminatory. Similarly, internal arrangements cannot be used to negate the employees’ statutory entitlements.

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