The Employment and Labour Relations Court has faulted the office of the vice-chancellor of the Technical University of Kenya (TUK) for unlawfully ordering deductions of alleged salary overpayments to a senior lecturer, totalling Sh4.1 million, without an explanation or a hearing.
While reinforcing protections for workers against unexplained and unilateral payroll actions, the court ruled that recovery of alleged overpayments must follow due process, including giving the employee notice and a hearing before deductions are effected.
The court held that the Vice Chancellor's directive violated constitutional and statutory safeguards when the recovery order of the amount was made in regards to Professor Lawrence Otweyo Migire Gumbe’s salary without following due process.
TUK is presently headed by Vice Chancellor Benedict M. Mutua.
The court stated that the decision to recover the money was reached unilaterally and communicated abruptly through a letter dated January 5, 2024, issued by the vice chancellor.
The letter did not explain how the figure was arrived at or how the deductions would be implemented, prompting Prof Gumbe to seek the Labour Court’s intervention.
“The respondent had already taken the decision to recover the said money without giving the petitioner any opportunity to be heard,” the judge ruled, underscoring that recovery efforts must be transparent, justified, and preceded by a fair hearing.
Prof Gumbe, who had served the university for 15 years, said the threatened deductions breached his rights to fair labour practices and fair administrative action.
The university defended its action, arguing it was seeking to recover public funds allegedly paid to the professor for periods when he did not render teaching services. It maintained that the recovery notice was lawful and based on internal records.
After the letter was issued, Prof Gumbe moved to court. In April 2024, the court issued interim orders barring TUK from making any deductions.
The institution complied and later argued that the dispute had become moot since no money was ultimately recovered.
However, the court rejected this defense and found that the university’s later compliance did not erase the initial infringement of the lecturer's rights.
It held that legal compliance after litigation did not cure the initial breach. By the time the petition was filed, no fairness had been accorded, the court ruled.
“From the outset, the respondent acted unlawfully by not granting the petitioner a hearing. The decision was only revoked upon the petitioner filing this petition,” the court said, terming the university’s move as unconstitutional and procedurally unfair.
The judge held that Prof Gumbe’s rights under Articles 41 and 47 of the Constitution had been breached, noting that fairness must precede administrative decisions affecting an employee’s livelihood.
“It is apparent in these circumstances that the rights of the petitioner were breached,” the court ruled, adding that the recovery decision was only halted after litigation had commenced.
While the university argued that no actual loss had occurred because deductions were never made, the court stated that Constitutional violations can still attract remedies even where harm is prevented through judicial intervention.
It awarded Prof Gumbe Sh500,000 in damages for violation of his rights, along with the costs of the petition.
The court emphasised that employers cannot retroactively justify flawed decisions by later compliance. “The decision was only revoked upon the petitioner filing this petition,” the judgment noted.
