Kabugi v Teacher Service Commission (Cause 132 of 2017) [2022] KEELRC 1274 (KLR)
The bottom line
#A Kenyan teacher who received a special allowance he wasn't qualified for must repay it, because employers can legally recover money paid by mistake.
What this practically means
#Executive summary
#Key legal issues
#Eligibility for special school allowance
The Claimant was not entitled to the special school allowance after the 2006 policy change and 2005 CORT because he lacked a Diploma or Certificate in Special Education
Circular 13/1997 initially paid the allowance to teachers deployed to special schools, but Circular No. 21 of 27th July 2006 and Regulation 94 of the 2005 CORT pegged the allowance on possession of special education qualifications. The Claimant's guidance and counselling certificate and certificates of merit (awards for school performance) did not constitute special needs training. No evidence proved he met the minimum requirements.
Lawfulness of deductions/recovery of erroneously paid allowance
The Respondent rightfully deducted the allowance as monies erroneously paid, authorised by Section 19(1)(e) of the Employment Act
Having found the Claimant was never entitled to the allowance post-2006, the amounts paid were overpayments. Section 19(1) of the Employment Act permits deduction of amounts paid in error as wages in excess of amounts due. The Respondent conducted a payroll audit after a 2016 letter from the school principal and notified the Claimant before recovery.
Counter claim
The counter claim for Kshs.382,880.45 succeeded in full
The Respondent proved that the sum represented public funds erroneously drawn by the Claimant between 1st July 2006 and 1st July 2016. Judgment was entered for the Respondent for the balance of Kshs.382,880.45 to be recovered from the Claimant, with no orders as to costs on the counter claim.
Legal principles established
#- An employer may lawfully deduct from wages any amount paid to an employee in error as wages in excess of wages due under Section 19(1) of the Employment Act, 2007
- Special school allowance under Regulation 94 of the Code of Regulations for Teachers is payable only to a teacher possessing skills in special education and assigned to a special school or special unit
Court orders
#- 1.The claim herein is dismissed with no orders as to costs.
- 2.Judgment be and is hereby entered in favour of the Respondent for the sum of Kshs.382,880.45 to be recovered from the Claimant being the balance of public funds erroneously drawn by the Claimant for the period 1st July 2006 to 1st July 2016.
- 3.There shall be no orders for costs on the counter claim.
- 4.The orders restraining the recovery is hereby lifted. The Respondent is at liberty to recover the balance thereof.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute under Employment Act, 2007 (Sections 10 and 19(1)); judgment delivered virtually per Article 159(2)(d) and Article 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabugi v Teacher Service Commission (Cause 132 of 2017) [2022] KEELRC 1274 (KLR)", Case Analysis (2022). ELRC Cause (statement of claim filed 25th January 2017) — as per judgment; no cause number printed. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1274/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.