Court orders ex-county official to refund Sh10m earned irregularly

Former county official found to have drawn salaries from two public institutions without rendering services to one.

The Ethics and Anti-Corruption Commission has secured court orders for the recovery of nearly Sh11 million in salaries irregularly earned by a former official in Homa Bay government.

In a judgment delivered on March 3, Justice BM Musyoki ordered the former county official to refund Sh10,991,712 paid to him by Homa Bay county between June 2016 and August 2021.

Investigations established that, during the same period, he was in full-time employment as a lecturer at a government medical campus in Kisumu.

"The plaintiff averred that the defendant never relinquished his earlier appointments and he received from the government a total of Sh10,991,712 designated as salaries between June 2016 and August 2021 without offering any services," the judge said.

On June 12, 2024, the EACC moved to court seeking recovery of the salaries.

In his written defence dated July 17, 2024, the official denied irregularly earning the salary, although he admitted that he was served with a demand letter by the EACC, to which he responded and entered into a mutual agreement.

"He claims in the alternative that any salaries paid to him were legitimately and lawfully earned.... and that he was surprised by the turn of events," the judge said while delivering his judgment.

The EACC called three witnesses, while the defendant neither testified nor called any witness.

Among the witnesses whose evidence was relied upon was a then human resource officer, who testified that the official was appointed on March 30, 2016 on permanent and pensionable terms.

At the time of the testimony, he was under disciplinary proceedings for absconding duty, and his salary had been stopped in July 2023.

The witness produced the defendant’s appointment letter, a letter of confirmation dated December 4, 2017 and his payslips from the government, showing he earned a monthly salary of Sh287,230 between June 2016 and August 2021.

Investigations further revealed that he had been posted to the medical college on June 4, 2013 and confirmed on permanent and pensionable terms as a deputy head of department until May 5, 2022, when he was dismissed from service.

The court also heard that the official held another job as a part-time lecturer at a private university in Kisumu from February 2015.

Upon completion of investigations, the defendant was invited to the EACC offices for statement recording but did not have an explanation for the payment of the salaries and instead requested to be allowed to refund the money he had received from the government.

The court noted that the defendant did not appear for the hearing of the case and neither provided any evidence nor filed submissions despite having filed a defence.

"It is indisputable that the defendant was, at the time he sought employment with the government, a permanent and pensionable employee of the college which is a public body. There is no proof that he resigned from this position after the appointment by the government," the court ruled.

The court said it was illegal and unethical for the defendant to secure employment with the government while on permanent and pensionable terms at a government college without resigning from either position.

It further held that it was unlawful and unethical for a public servant to receive payment from two government institutions and unlawful, unprofessional and unethical to receive payment for services not rendered.

"Once the plaintiff produced documents to show that the defendant was paid by the two institutions during the period under investigations, the defendant had a burden to adduce evidence to the contrary or show that he provided services to the government which he failed to discharge," Justice Musyoki said.

The EACC told the court that this conduct was contrary to Section 26 of the Leadership and Integrity Act, which was in force at the time but has since been replaced by the Conflict of Interest Act No 11 of 2025.

In its judgment, the Anti-Corruption Court held that it was unlawful and unethical for a public officer to receive salaries from two government institutions in a manner that undermines efficient service delivery.

"It is my opinion that any funds which are found to have been illegally or unlawfully obtained from a government or public institution are liable to forfeiture to the government.

"Further, it is my holding that any process or acts which breach the law specifically in this case, Leadership and Integrity Act, cannot give rise or produce legitimate source of income and any payments made from such processes are illegal and unlawful," the judge said.

The court directed that the amount be refunded with interest within 90 days, failing which the commission is at liberty to execute the decree.

The case is among several others the commission is pursuing against professionals earning from public institutions while simultaneously engaged in full-time employment elsewhere.