iv. Whether the respondents were subjected to discrimination and unfair labour practices by the appellant;
41.We have already given the PwC Report a clean bill of health as we have found that it was adopted by the Board therefore forming part of the appellant’s policy documents. As already stated, recommendations could only become binding once adopted by the Board. It is during the Board meetings that a decision is made to adopt the recommendations contained in a report either wholly or partially; and while doing so, the Board also prescribe the manner of the implementation of such recommendations, including the provision of the necessary funds.
42.As far as the Board Paper is concerned, both parties agree that the Board resolved to conduct a fresh job evaluation and grading exercise in a bid to cure the salary disparities occasioned by the implementation of the PwC Report in 2011. Unfortunately, for the PwC Report which forms the basis of the dispute herein, there is no evidence as to how the NSSF Board resolved to implement it. Snippets from exhibits that were produced at the trial, and which form part of the record, point to the fact that the PwC recommendations were implemented in full but the outcome of the implementation was not as expected. For instance, at pages 239 and 240 of the record, the Human Resource Manager after observing that there were disparities in percentages awarded during conversion of salaries in November, 2011 concluded in her Board Paper that:
43.The respondents challenged the manner in which the recommendations were implemented. However, we must point out at this juncture that in our jurisdiction, the courts’ power to interfere with internal affairs of a body corporate are limited for the basic reason that such body corporates are legal persons that are operated using their constitutive documents, in this case, being the NSSF Act, as well as other relevant legal instruments. The PwC Report being a Board resolution meant to regulate the internal affairs of the appellant, the courts could only interfere if it was proved that it was ultra vires, fraudulent, unconstitutional or breached the express provisions of the mother law or any other statutory provisions. The procedural aspect of adopting these resolutions has not been called into question. Instead, it is the content and the implementation of the resolutions that gave rise to the dispute herein. Indeed, Part 7.3.3 of the PwC Report provided an implementation formula as follows:
44.We have elsewhere in this judgment addressed the meaning of the word “recommend”. We wish not to repeat that analysis here but to restate that, a recommendation in its literal term connotes an advice and not a directive. The recipient retains the liberty to choose whether and how to implement it. As per the last paragraph of Part 7.3.3 of the PwC Report, implementation was left to the discretion of the Board. However, the same cannot be said of the second last paragraph of Part 7.3.3 of the PwC Report. Even so, the use of the word “may consider” in that paragraph still left unfettered the Board’s discretion to consider other suitable alternatives.
45.In this case, the respondents alleged that the appellant discriminated against them and thus subjected them to unfair labour practices. As we have already stated earlier in this judgment, the onus was on the respondents to discharge the overriding obligation by laying a basis before the trial court establishing that their treatment at the hands of the appellant was discriminatory. It is only upon transcending this threshold that the burden would then shift to the appellant to prove the contrary.
46.According to the respondents, their case on discrimination was hinged on the fact that when the appellant was implementing the PwC Report, other staff had their salaries moved to the next notch under the same job group while in their case, all they were accorded was a 10% salary increase. As a result, they argued that their salaries were left to hang in- between different notches contrary to PwC recommendations. It was their case that such selective application of the PwC Report was discriminatory against them and subjected them to unfair labour practices. They further contended that the move by the appellant disadvantaged them in the subsequent salary increases. On the other hand, the appellant explained that during the implementation, the respondents were not supposed to receive any increment because their salaries were found to be above the benchmark salaries as revealed in the salary survey. It is the appellant’s case that the Board however opted to award the respondents a 10% salary increment to cover inflation since the staff had not been cushioned against inflation for over five years.
47.In the record, there is a letter by one Alex Kazongo, the NSSF Managing Trustee dated 11th October, 2011 and referenced SF/EST/1/25 Vol.V(99) where in the last paragraph he states as follows:
48.The Bwondara Committee Report at part 5.4 (page 266 of the record of appeal) concludes that the disparities in percentages awarded in the 2011 salary conversions was a creation of the PwC Report which is inconsistent with salary administration and best practices. It is therefore apparent that the disparities were as a result of the implementation of the PwC Report. However, the main question would be whether the same was intentionally skewed with an intention to disadvantage the respondents. From the record, the respondents did not adduce evidence to show how other employees in similar positions benefited from the implementation and if indeed there was a differential treatment of similar situations by the appellant. Even from the evidence adduced, we note that the respondents despite having their salaries fall between notches still received salaries within their respective job groups or grades and which were indeed beyond the benchmark.
49.As we have already stated in this judgment, the appellant had the discretion to decide on how to implement the recommendations contained in the PwC Report. It was therefore incumbent upon the respondents to adduce evidence at the trial to establish how other employees who fell in the same scenario as them were treated differently. This was not an uphill task as the paragraph quoted above from the letter dated 11th October, 2011 and referenced SF/EST/1/25 Vol. V (99) reveals that all the affected employees were issued with letters. In Gichuru vs. Package Insurance Brokers Ltd  KESC 12 [KLR], the Supreme Court when discussing the issue of discrimination at the work place observed that:
50.In Transport & General Workers Union & Another v Bayete Security Holding  ZALC 147, the South African Labour Court when dealing with the concept of discrimination at the work place noted as follows:
51.The fact that employees on other levels and scales may have received greater increases percentagewise cannot be equated to discrimination considering that PwC had in the implementation matrix, which is already reproduced elsewhere in this judgment, appreciated that there were employees whose “current pay lies below the recommended scale minimum”, others “whose current pay lies within the recommended salary scale” and a third category “whose current pay lies above the recommended scale maximum.” The respondents did not disclose in which category they fell so that it could be said that they were treated differently from those who fell into that category. Indeed, at no point in the entire trial did the respondents point to any section in the PwC Report as the one that was not implemented hence leading to their being discriminated against. A party who moves a court or tribunal for orders is under a duty to lay a basis for the grant of the orders sought. It is not sufficient to allege discriminatory treatment by the employer without clearly stating why the action of the employer amounts to discrimination.
52.Indeed, PwC at Part 126.96.36.199.7 of its report appreciated that the implementation of some of its recommendations needed the goodwill of external stakeholders. Hence the statement that:
53.It is therefore our view that without evidence of differential treatment on the part of the appellant, the respondents’ claims of discrimination and unfair labour practices were unfounded. At least, the respondents ought to have established the comparators or alternatively disproved the explanations tendered by the appellant as to why it implemented the 10% salary increment instead of moving the respondents’ salaries to the next notch. Alternatively, evidence ought to have been adduced to impute malice or ill motive specifically targeted at the respondents by the appellant. Consequently, we also find that the claims of discrimination and unfair labour practices in respect to the subsequent salary increases in 2012 and 2014 were similarly not proved.
vi. Who should bear the cost of this appeal?
55.The next issue is who should bear the costs of this appeal. Under Rule 33 of the Court of Appeal Rules, 2022 this Court is empowered to make orders as to costs. In Supermarine Handling Services Ltd v Kenya Revenue Authority  eKLR, this Court stated that:
56.The Supreme Court in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others  eKLR stated as follows with regard to award of costs:
57.In the trial court, each party was ordered to bear their own costs. We do not wish to interfere with that exercise of discretion. With regard to costs incidental to this appeal, this Court has authority to make its own orders as to costs. We have considered the actions of the parties during the trial and hearing of this appeal. We have also considered the issues raised and canvassed in this appeal and the outcome. Additionally, we take cognizance that the appellant and some of the respondents might still be in an employer-employee relationship while other respondents are former employees of the appellant. In the circumstances, it is our view that these are sufficient reasons to make us depart from the norm that costs follow the event by ordering the parties to bear their own costs of the appeal.
58.The final orders of this Court are as follows:i.The appeal is hereby allowed and the entire judgment dated 24th August 2020 issued in Nakuru ELRC Cause No. 212 of 2017 is set aside in its entirety and substituted with an order dismissing the respondents’ further amended Memorandum of Claim dated 21st June 2019; andii.The parties to bear their own costs.1.It is so ordered.