By OPCS Press Team
The former head of the Kenya Film Classification Board, Mr Ezekiel Mutua, has been asked to return the Sh27 million paid to him as an irregular salary increase during his second term of office.
In a ruling by the State Corporations Appeal Tribunal, Mr Mutua was surcharged the amount after the KFCB board increased his salary from Sh348,840 to Sh1,115,850 when he was given a second term, and drew the illegal increase for three years.
Mr Mutua had been surcharged by the Inspectorate of State Corporations (ISC) Sh27,612,360 on 8th October 2024 for the irregular salary increase under Section 19 of the State Corporations Act, terming the increase as a loss of public funds.
The Inspectorate of State Corporations had claimed that the term of service for Mr Mutua was irregularly and unlawfully renewed without input from the Salaries and Remuneration Commission (SRC), State Corporations Advisory Council (SCAC), and approval of the Cabinet Secretary.
“Inspectorate of State Corporations noted that the board’s decision to increase the CEO’s salary … on a ‘personal to self’ basis was unlawful and irregular and that Mr Mutua ought to be surcharged as a consequence, having sat in the Board and benefited directly.”
The Inspectorate of State Corporations further argued that to promote uniformity, the government usually issues circulars regularly to guide the implementation of the SRC Act within the public sector.
But after the surcharge, Mr Mutua challenged the matter at the State Corporations Appeal Tribunal.
And in its ruling late last month, the tribunal upheld the James Warui-led Inspectorate of State Corporations’ surcharge, and instructed Mr Mutua to pay back to the government Sh27 million for the irregular salary increase by almost three times his previous pay.
According to the ruling, Mr Mutua served his first term from 26th October 2015 up to 21st October 2018, and nearing the expiry of his first term, he requested a renewal. The board chair wrote a letter dated 14th May 2018 to the Cabinet Secretary for Sports and Heritage for the CEO’s contract renewal.
In his response, the Sports Cabinet Secretary replied in a letter dated 29th May 2018 that he did not intend to have the contract renewed.
“However, and contrary to the Cabinet Secretary’s response, the board, through a letter of 7th June 2018, went ahead to renew the contract of Mr Mutua as the CEO for a further 3 years with effect from 26th October 2018,” read part of the ruling.
Following the renewal of his term, the KFCB board directed the Human Resource and Administration Committee to review and provide guidelines on the salary increment of Mr Mutua, based on his past performance.
In a meeting on 31st January 2019, the ruling noted that though the Human Resource Subcommittee had divergent opinions on the salary increase, the majority of the board approved the salary increment.
On the same day, the ruling noted, “in order to actualise the increment, the Board wrote to the Cabinet Secretary for his approval to effect the Board’s decision.”
However, the Cabinet Secretary wrote back in a letter dated 30th April 2019, declining to approve the salary increase.
“The Cabinet Secretary also directed the Board to recover any amounts that may have been paid in respect of the proposed salary increment in case the Board had implemented it,” said the ruling.
It added, “From the facts of the matter, it appears that the Board never implemented the directions of the Cabinet Secretary to stop the increment and recover the amounts that may have been paid, which then gave rise to the instant matter.”
In his defence, Mr Mutua said that he was given the second term by the board, which also went ahead to award him a salary increase, and therefore, he was personally not at fault.
Mr Mutua argued that he continued “to work and earn a salary without any objections, reservations and/or queries from the Cabinet Secretary, and it made him believe that he was discharging his duties legitimately and he had been properly appointed by the board.”
Also surcharged alongside Mr Mutua was Mr Nehemiah Kipkoech, a board member of the KFCB, for the irregular approval of the former CEO’s salary increment.
“Based on the documents filed before the Tribunal, it is also not in dispute that the board of the KFCB, for which Mr Kipkoech decided to increase Mr Mutua’s salary.”
The tribunal’s ruling further said that failure to comply with the law and procedure rendered the increment unprocedural, null, and void.
