An Employment and Labour Relations Court in Nyeri has dismissed an application by a senior lecturer that sought to stop the Ethics and Anti-corruption Commission from recovering over Sh7.8 million in salaries and allowances she earned for four and a half years while working as a part-time board member of Kirinyaga County Assembly.
The lecturer was employed on December 14, 2017, and started earning a monthly salary of Sh145,000 minus allowances from January 2018 to June 2022.
In his ruling delivered virtually on December 20, 2023, Justice Onesmus Makau agreed with the EACC findings that the lecturer was unlawfully earning two salaries since she was already working at the Jomo Kenyatta University of Agriculture and Technology.
“I have found that the claimant was not eligible for appointment as a part-time member of Kirinyaga County Assembly Service Board since she was a full-time public officer serving as a senior lecturer at JKUAT,” Justice Makau said.
As such, the judge held that the complainant was not eligible for remuneration for sitting on the board and dismissed her application which sought to bar the EACC from recovering the monies paid to her by the county assembly.
“Finally, I have found that she was not entitled to the reliefs sought in the memorandum of claim dated August 2, 2022,” the judge added but dismissed the suit without costs saying it was not her fault alone that she was hired to sit on the board.
The ruling is likely to affect other state and public officers who may be holding two jobs concurrently.
Both the Constitution and the Leadership and Integrity Act bars full-time state officers from participating in any gainful employment.
The senior lecturer had sued the Ethics and Ant-Corruption Authority and the County Assembly of Kirinyaga and its clerk and listed the Salaries and Remuneration Commission as an interested party.
In her memorandum of claim, she prayed for the court to rule that she was entitled to her full salary and benefits for serving as a part-time external board member of the assembly since she had not breached any law or regulation.
This was after the EACC on July 27, 2022, wrote to the county assembly clerk directing him to stop her salary and gratuity benefits on grounds that her employment on the board was irregular and unlawful and payments made to her amounted to double compensation.
EACC asked the court to dismiss the lecturer’s application and order her to refund all salaries and benefits she had been paid by Kirinyaga County Assembly between January 2018 and July 2022.
Gist of the story
County Assembly Service Boards consist of the Speaker, a vice-chairperson elected by the board, two members of the county assembly and one man and a woman who are not members of the county assembly but are experienced in public affairs.
The Kirinyaga County Assembly advertised for the two external member board slots on September 16, 2017, and the lecturer applied and was recruited through a competitive process and issued with an appointment letter dated December 14, 2017.
“Since her appointment was on a part-time basis, she was not entitled to any salary or retainer but sitting allowances for meetings held and attended, accommodation allowances, airtime and transport allowance,” EACC told the court.
However, the commission said that SRC in a circular dated December 8, 2017, informed County Assemblies and their clerks that it had reviewed terms for external part-time board members and introduced a monthly salary of Sh145,000 among other terms.
The clerk informed the lecturer about the new development on January 8, 2018, but made it clear that she remained a part-time Board member.
Fast forward to July 18, 2022, EACC notified the clerk of the assembly that it had instituted investigations into alleged corruption and misconduct by the complainant and sought all relevant documents to assist in the probe.
On July 27, 2022, EACC informed the clerk to stop the lecturer’s salary and benefits citing contravention of Article 77(i) of the Constitution and Section 27 of the Leadership and Integrity Act.
The law states that a full-time state officer shall not participate in any gainful employment.
Feeling aggrieved, the lecturer moved to court arguing that first, she was condemned unheard.
She also said that the cited law did not apply to her since she was not a state officer but a public officer with every right to serve as a part-time board member.
She further argued that SRC formulated her terms of employment in the exercise of its lawful mandate.
SRC, however, submitted that Article 77(i) is part of the Constitution and it applies to all public officers by dint of Section 52 of the Leadership and Integrity Act.
The Act states: “Pursuant to Article 80(c) of the Constitution, the Provisions of Chapter Six of the Constitution and Part II of this Act, except Section 18, shall apply to all public officers as if they were state officers.”
The court agreed with the submissions and dismissed the claimant’s suit.
EACC Spokesperson Eric Ngumbi says that following the court ruling, the Commission has now initiated recovery of all the salaries, allowances, gratuity and other benefits earned by the lecturer from the Kirinyaga County Assembly for the entire period of five years that she worked in the Kirinyaga County Assembly from 2017-2022.
The EACC Spokesperson revealed that there are numerous cases in the public service, especially county governments, where full-time public officers take up additional full-time or part-time jobs.
"This, according to the Commission, amounts to fraudulent acquisition of public property which is liable for forfeiture back to the Government," Ngumbi said.
"In some cases, public officers are part of the ghost workers fraudulently included in the payrolls of county governments to draw salaries which they share with their masters, often senior county officials."
