Mungai v Embu County Government & 3 others (Employment and Labour Relations Cause E059, E056, E057, E058 & E060 of 2024 (Consolidated)) [2025] KEELRC 2391 (KLR)
The bottom line
#Kenya's Employment Court ruled that allowances paid contrary to SRC advice can be lawfully recovered from county officials' salaries.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the payment of the monthly commuter allowance to the claimants was erroneous and recoverable.
- 2.Whether the respondents violated the claimants' Constitutional rights and fundamental freedoms through the recovery of the commuter allowance from October 2024.
Key legal issues
#Whether the commuter allowance paid to the claimants was erroneous and recoverable
The payment was erroneous because the SRC circular of 8th December 2017 excluded full-time CPSB members from commuter allowance and discontinued the earlier 2013 circulars, making continued payment a double payment recoverable under section 19(1)(e) of the Employment Act.
The 2017 circular expressly ended the 2013 and 2014 circulars and excluded full-time members from commuter allowance. The 2016 SRC advice that the allowance continue until pool cars were procured was based on the discontinued 2013 circular. The claimants' 2022 request for continuation was declined, SRC clarifying the gross pay was inclusive of commuter allowance. Recovery is lawful under section 19(1)(e), subject to the 2/3 cap and tax adjustments.
Whether the respondents violated the claimants' constitutional rights and fair labour/administrative action rights
No violation was established; discrimination was not proved and correspondence between the parties preceded the recovery.
The court found documentary evidence of correspondence between the County Secretary, the CPSB secretary and the SRC up to 8th September 2022 clarifying that the allowance was interim and that the 2017 gross package was inclusive of commuter allowance. The alleged discrimination was therefore unproved, and the recovery was not commenced without consultation.
Binding nature of SRC advice on county governments
SRC advice on remuneration under Article 230(4)(b) binds both national and county governments, as held by the Court of Appeal in TSC v KNUT.
The court relied on the Court of Appeal decision in Teachers Service Commission v Kenya Union of Teachers to affirm that county governments must act on SRC advice and that any function exercised without it is invalid. The claimants' terms of service were expressly set by SRC.
Legal principles established
#- Advice by the Salaries and Remuneration Commission on remuneration and benefits of public officers under Article 230(4)(b) is binding on both national and county governments.
- An employer may recover amounts paid to an employee in error, subject to the two-thirds cap on deductions and taking into account tax already deducted.
- Total deductions from wages at any one time must not exceed two-thirds of the wages.
Court orders
#- 1.The suits are dismissed with costs.
- 2.The money recoverable must take into account any tax deducted before payment and the 2/3 rule under section 19(3) of the Employment Act.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution of Kenya; Employment and Labour Relations Court jurisdiction over employment and labour relations disputes
- Consolidated with
- separate suits filed vide Statements of Claim dated 19th December 2024, consolidated and heard together
Relief refused
#Declaration that the 2nd Respondent's letter/circular dated 8th September 2022 was unlawful, null and void
The court found the payment was contrary to SRC advice and the recovery was justified
Declarations that the claimants' employment and constitutional rights under Articles 41 and 47 were violated
Discrimination not proved and there was evidence of correspondence/consultation before recovery
Refund of the Kshs.94,000 deducted from October and November 2024 salaries and stoppage of future deductions
The allowance was erroneously paid and is recoverable under section 19(1)(e) of the Employment Act, subject to tax and the 2/3 rule
General damages and costs of the suit
Claim failed on a balance of probability; costs awarded against the claimants
Costs
The suits were dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the transport/ commuter allowance paid to the claimants was erroneous and is recoverable because it amounted to double payment of commuter allowance
I find that the claimants have failed to prove their case on a balance of probability. Consequently, I dismiss the suits with costs.
For avoidance of doubt the money recoverable must take into account any tax deducted before payment and the 2/3 rule under section 19(3) of the Employment Act.
the advice of the SRC under Article 230(4) (b) on remuneration and benefits determined for public oficers is binding on the national and county governments
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungai v Embu County Government & 3 others (Employment and Labour Relations Cause E059, E056, E057, E058 & E060 of 2024 (Consolidated)) [2025] KEELRC 2391 (KLR)", Case Analysis (2025). Consolidated suits, Statements of Claim dated 19th December 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2391/eng@2025-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.