https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1315

Universities Academic Staff Union v Karatina University (Cause E030 of 2025) [2026] KEELRC 1315 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1315 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Cause E030 of 2025 SC Rutto, J May 15, 2026 Between Universities Academic Staff Union Claimant and Karatina University Respondent Judgment 1.The Claimant union moved this Court through a Memorandum of Claim dated 3rd September 2025, in which it avers that the Respondent, through its internal audit department, initiated an audit concerning the payment of car allowance to staff members it (Claimant) represents. 2.According to the Claimant, the audit exercise was communicated through a memo dated 30th July 2025, which indicated that the verification exercise would be conducted between 5th and 7th August 2025. That further, the said memo required the Claimant’s members to physically present their motor vehicles for inspection by the Respondent University’s audit office and to produce original duplicate insurance certificates, current driving licences, and verification of current ownership from the National Transport and Safety Authority (NTSA). 3.The Claimant contends that the requirement for physical verification of motor vehicles fell outside the Respondent’s established policy framework. It is further contended by the Claimant that its members were subjected to inspection by officers from the audit office who, without any warrant/traffic police officer/ Directorate of Criminal Investigations (DCI), were granted unfettered access to inspect the vehicles, scrutinize chassis details, and require members to log into their NTSA portals for inspection. 4.The Claimant further avers that members who used motor vehicles registered in the names of their spouses were compelled to obtain their spouses’ NTSA login credentials to enable the audit team to access ownership details. It is the Claimant’s contention that members who declined to provide such login access, despite producing original logbooks, marriage certificates, duplicate insurance certificates, and driving licences, were deemed to have failed the verification process. 5.The Claimant further asserts that through an internal memo dated 9th July 2025, the Respondent imposed unlawful requirements compelling its members to attach copies of marriage certificates and obtain login credentials from their spouses, as well as log into their spouses’ NTSA portals, as a condition for continued payment of car allowance. The Claimant contends that these demands contravened Article 31 of the Constitution of Kenya, 2010, as well as Sections 38 and 40 of the Data Protection Act, 2019. 6.It is the Claimant’s further contention that the memo dated 30th July 2025 introduced additional verification requirements for payment of car allowance without any lawful basis and in a manner inconsistent with the Respondent’s own Terms and Conditions of Service applicable to academic staff. 7.The Claimant further avers that one of its members, Dr. James Gichuki, was directed through an email dated 21st August 2025 to present his motor vehicle for verification by close of business on 22nd August 2025, with a warning that failure to comply would result in him being deemed not to own a vehicle and to have been irregularly drawing car allowance. 8.According to the Claimant, Dr. Gichuki presented the vehicle for inspection on 8th August 2025 and furnished all the required documentation. However, the Claimant alleges that the Respondent declined to cross-check the documents with the chassis number and thereafter proceeded to compute alleged discrepancies between car allowance and commuter allowance dating back to the last verification exercise, to Dr. Gichuki’s detriment. 9.The Claimant further avers that, through a memo dated 25th August 2025, the Respondent threatened to withhold Dr. Gichuki’s salary for the month of August 2025 and to recover various sums allegedly overpaid, without any lawful basis. 10.According to the Claimant, it formally raised grievances concerning alleged violations of data protection rights, unlawful demands, and unfair labour practices, but the Respondent failed and/or neglected to address the said concerns. 11.The Claimant further asserts that the Respondent’s demands unlawfully interfered with the privacy rights of its members and exposed sensitive personal data, including information relating to spouses’ accounts, contrary to Sections 25, 38, and 40 of the Data Protection Act, while also risking disclosure of unrelated third-party data. 12.The Claimant further contends that the Respondent’s actions amounted to a unilateral amendment of the existing car allowance policy. 13.It is the Claimant’s position that the Respondent’s conduct constituted a unilateral variation of employment terms, unlawful demands for personal data, and a violation of fair labour practices. 14.Against this background, the Claimant seeks the following reliefs: -a.That a declaration do issue that the Respondent’s demand for the Claimant (sic) to physically avail their cars for inspection by audit employes, log into the NTSA portal and produce the original duplicate entrance certificate, current driver’s license as verification of current ownership is unlawful, unconstitutional and in violation of the Claimant’s (sic) right to privacy and protection of personal data under Article 31 of the Constitution of Kenya 2010 and sections 38 and 40 of the Data Protection Act 2019.b.That a declaration do issue that the Respondent’s threat to withhold and recover from the Claimant’s members’ salary on account of car allowance constitutes an unlawful deduction in contravention of Section 19 of the Employment Act, 2007.c.That an order do issue prohibiting the implementation of the memo dated 30th July 2025, reference number KarU/IA/AN/2025/446.d.That an order of permanent injunction do issue restraining the Respondents from withholding the car allowance of the members of the Claimant who are eligible.e.That an order of permanent injunction do issue restraining the Respondents from demanding that the Claimant members and/or their legal spouses log into the NTSA portal or produce a marriage certificate as a condition for payment of car allowance.f.That costs of this suit be provided for. 15.The Respondent opposed the Claim through a Replying Affidavit sworn on 7th October 2025 by its Acting Registrar, Richard Ruhiu. 16.Mr. Ruhiu deposes that under the Terms and Conditions of Service applicable to employees of the Respondent in Grades 5–15, members of staff who utilize their personal motor vehicles for commuting between home and the workplace are entitled to a car allowance, irrespective of whether they are academic or non-academic staff. 17.He further avers that eligibility for the said car allowance is conditional upon an employee furnishing proof of ownership of the motor vehicle, a valid driving licence, and an active insurance policy. In addition, the employee must demonstrate actual use of the vehicle. 18.Mr. Ruhiu states that in August 2025, the Respondent’s Internal Audit Department undertook a vehicle verification exercise as part of its assurance mandate, with the objective of verifying the correctness, legitimacy, and accountability of expenditure incurred by the University in payment of car allowance. 19.According to Mr. Ruhiu, the said assurance activities fall squarely within the statutory mandate of the Internal Audit Department as provided under the Public Finance Management Act. 20.He further avers that members of staff were required to provide particulars relating to vehicle ownership and the status of their driving licences, and were given the option of logging into their personal E-Citizen portals for purposes of verification. He states that adequate notice of the requirement was communicated to employees in advance. Mr. Ruhiu further explains that the requirement to access the E-Citizen/NTSA portal was intended to verify the expiry status of driving licences as well as the registration details of the motor vehicles presented, including the registration and chassis numbers. 21.Mr. Ruhiu further deposes that the use of the E-Citizen/NTSA portal was intended solely to corroborate the information contained in documents already submitted to the Human Resource Department, namely the motor vehicle registration certificates (logbooks) and copies of driving licences. 22.He further avers that individual staff members voluntarily logged into their own E-Citizen portals and permitted the auditors to record the relevant particulars. Mr. Ruhiu states that the physical inspection of the motor vehicles was conducted for purposes of confirming actual use of the vehicles and verifying that the vehicles presented belonged to the respective employees. 23.It is Mr. Ruhiu’s position that the Internal Audit Department was justified in requiring verification through the E-Citizen/NTSA portal on several grounds, namely: that employees had already given implied consent by continuing to enjoy the benefit of car allowance; that the Terms and Conditions of Service place the burden upon employees to demonstrate eligibility for the allowance; that corroborative verification through the E-Citizen portal was necessary because a person may still retain possession of an original logbook even after transferring ownership of a vehicle; that the Respondent, as a data processor, was lawfully permitted to access data necessary for purposes of discharging its obligations relating to continued payment of car allowance; and that the information sought by the Internal Audit Department was information ordinarily accessible through NTSA digitized services upon application. 24.Mr. Ruhiu further contends that the Claimant has neither demonstrated nor particularized any breach of the data protection principles set out under Section 25 of the Data Protection Act. 25.Regarding the deductions effected against employees who failed to provide the required verification documents, Mr. Ruhiu avers that the deductions were lawful under Section 19(1)(e) of the Employment Act, as they were intended to recover the excess sum of Kshs. 4,400 per month allegedly paid to employees who were not eligible for car allowance. He further states that the affected employees were accorded an opportunity to make representations, and that cases in which representations were made were reviewed, with refunds issued where found to be merited. 26.On the basis of the foregoing, Mr. Ruhiu maintains that the Claim lacks merit and has urged the Court to dismiss it with costs. 27.On 24th February 2026, both parties herein consented to have the matter determined by way of documentary evidence pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 28.Subsequently, the Court directed the parties to file and exchange written submissions within specified timelines. Submissions 29.On its part, the Claimant has submitted that the Respondent acted unlawfully by introducing the impugned requirements, which, according to the Claimant, amounted to a unilateral variation of the existing Terms and Conditions of Service without any legal basis, consultation, or agreement with it (Claimant). 30.Relying on the decision in Gatuma v Kenya Breweries Ltd & 3 others (2024) KESC 52 (KLR), the Claimant has argued that it was not open to the Respondent to impose additional requirements outside the framework established under the Terms and Conditions of Service. In the same vein, it has been submitted that the Respondent has failed to demonstrate that any consultations had been undertaken with the Claimant prior to the introduction of the impugned verification measures. 31.The Claimant has further contended that the Respondent’s conduct amounted to a violation of Article 41(1) of the Constitution, which guarantees the right to fair labour practices. 32.The Claimant further submits that whereas an audit process may properly be utilized to verify compliance with an existing policy, it cannot lawfully be employed as a mechanism for introducing new requirements not contemplated under the policy itself. 33.It is the Claimant’s further submission that employees who had complied with the existing requirements had a legitimate expectation that their continued eligibility for car allowance would be determined strictly within the framework of the existing Terms and Conditions of Service. 34.The Claimant has further submitted that the requirement for employees to log into the NTSA portal entailed the collection and processing of highly personal data, which, under Section 44 of the Data Protection Act, may only be processed where the principles set out under Section 25 are complied with and only where one of the specific grounds enumerated under Section 45 exists. On that basis, the Claimant has argued that the Respondent’s conduct not only offends the statutory requirements governing lawful data processing but also violates the constitutional right to privacy and the legal safeguards relating to personal data protection. 35.The Claimant further submits that the Respondent’s threatened recovery and/or deduction of car allowance from the salaries of its members was unlawful and contrary to Section 19(1) of the Employment Act. In the same vein, the Claimant has argued that the intended recoveries do not fall within any of the statutory grounds permitting deductions from an employee’s wages. 36.On the other hand, the Respondent has submitted that the Terms and Conditions of Service were open to allow it to verify the key documents required for eligibility to car allowance, namely the logbook, insurance cover, and driving licence. According to the Respondent, there were no additional requirements that had been introduced other than as guided in the Terms and Conditions of Service 37.The Respondent maintains that the means it chooses to verify compliance with Clause 12 of the Terms and Conditions of Service, which is to verify whether a staff member is eligible for payment of car allowance, fell within its managerial prerogative and was therefore not subject to consultation with the union. It is the Respondent’s position that no permission from, or consultation with, the Claimant was required, provided that the chosen means of verification remained within the confines of the law. 38.The Respondent additionally submits that it relied on records held by the NTSA solely for purposes of corroboration, and that the information being verified had already been supplied by members of staff. According to the Respondent, no additional private information was sought beyond the information already provided. 39.To this end, the Respondent has maintained that it did not vary or alter the applicable Terms and Conditions of Service as alleged. 40.The Respondent has further submitted that members of staff who permitted auditors to view their digital records on the E-Citizen portal did so voluntarily by actively logging into their own portals using personal passwords and one-time passcodes (OTP) generated by the system and transmitted to their respective email addresses or mobile phones. 41.The Respondent has further contended that members of staff took the additional affirmative step of allowing auditors to view the displayed information on their individual devices. It is the Respondent’s position that the Claimant has failed to demonstrate any coercion on its part in obtaining access to the digital records. 42.The Respondent has further argued that employees had the alternative option of producing motor vehicle search records upon payment of a fee. 43.The Respondent further argues that, as a data processor, it was lawfully entitled to access and process the subject data in so far as such processing was necessary for purposes of discharging its obligation of paying car allowance to members of staff. 44.The Respondent has further contended that the Claimant has failed to identify the specific additional personal data allegedly accessed through the NTSA E-Citizen digital records. The Respondent argues that the only information accessed was the name of the registered owner, which was expected to correspond with the details appearing on the logbook already provided by the employee. 45.According to the Respondent, the remaining details relating to the description and particulars of the motor vehicle, including the year of manufacture, colour, and chassis number, did not constitute personal data within the meaning of the Data Protection Act. 46.The Respondent has further submitted that any irregularly paid car allowance, being part of the monthly emoluments payable to employees, was recoverable pursuant to Section 19(1)(e) of the Employment Act. 47.The Respondent maintains that the intended recoveries related to excess car allowance allegedly paid to employees who were not entitled to receive the same. It further states that employees who were unable to demonstrate actual use of their motor vehicles were accorded an opportunity to respond in writing before any recoveries were undertaken. 48.In the Respondent’s view, the minimum requirements for effecting deductions from employees’ salaries had been satisfied. According to the Respondent, it was the onus of the employees to disclose cessation of use of their motor vehicles in the same manner in which they had initially applied for payment of the allowance upon becoming eligible. 49.In support of its position, the Respondent has sought to rely on the decisions in Kamwega v Wananchi Group Kenya Limited (Employment and Labour Relations Cause 1420 of 2017) [2024] KEELRC 546 (KLR) (8 March 2024) (Judgment) and Tibbs Vincent Robert v SGS Kenya Limited [2022] KEELRC 665 (KLR). 50.The Respondent has further contended that the Claimant has failed to demonstrate the existence of any unfair labour practice on its part. 51.In further submission, the Respondent has stated that the Constitution of Kenya does not confer absolute rights of privacy and that the same is also subject to limitation and allowable instances as set out in the Data Protection Act. Analysis and Determination 52.Flowing from the pleadings, the evidence on record, and the rival submissions, the Court has isolated the following issues for determination: -a.Whether the verification requirements stipulated in the Respondent’s internal memoranda of 9th and 30th July 2025 were lawful and consistent with the existing Terms and Conditions of Service;b.Whether the Respondent infringed upon the Claimant’s members’ right to privacy by requiring them and their spouses to access the NTSA portal and provide additional information for purposes of verification; andc.Whether the Respondent’s intended recovery of sums already paid to the Claimant’s members as car allowance was lawful. Whether the verification requirements stipulated in the Respondent’s internal memoranda of 9th and 30th July 2025 were lawful and consistent with the existing Terms and Conditions of Service 53.The Claimant contends that the verification exercise undertaken by the Respondent pursuant to the internal memoranda dated 9th and 30th July 2025 fell outside the scope of the existing policy framework and, in effect, introduced new verification requirements for payment of car allowance without any lawful basis and contrary to the applicable Terms and Conditions of Service governing academic staff. 54.According to the Claimant, the impugned requirements amounted to a unilateral variation of the prevailing Terms and Conditions of Service without legal justification, consultation, or agreement with the Claimant. To this end, the Claimant maintains that the Respondent’s conduct was inconsistent with Article 41 of the Constitution and Section 10(5) of the Employment Act. 55.Disputing the Claimant’s assertions, the Respondent maintains that it did not introduce any additional requirements outside those stipulated in the Terms and Conditions of Service. It further contends that its Audit Department was justified in requiring verification through the E-Citizen/NTSA portal, which was merely a corroborative mechanism to confirm the information previously submitted by staff members. 56.According to the Respondent, an individual may still retain possession of an original logbook notwithstanding transfer of ownership and possession of the vehicle. The Respondent further avers that certain members of staff who had submitted the requisite details during an earlier verification exercise were subsequently unable to physically present the vehicles for inspection, thereby raising doubts as to whether the vehicles were still in use. 57.Both parties produced before the Court a copy of an internal memo dated 9th July 2025, authored by the Acting Registrar, Mr. Richard Ruhiu, and addressed to all staff members. In the said memo, staff were required to submit valid copies of their logbooks, or those of their legal spouses, together with copies of marriage certificates, valid driving licences, and duplicate insurance certificates. 58.The parties further produced a copy of an internal memo dated 30th July 2025 issued by the Respondent’s Senior Internal Auditor, Ms. Cecily Mukami, addressed to all staff members, requiring them to avail their motor vehicles for verification between 5th and 7th August 2025. The memo further required staff to produce original duplicate insurance certificates, current driving licences, and verification of current ownership obtained through the NTSA online portal. The memo further stated that only those whose vehicles would be successfully verified would continue to qualify for payment of vehicle allowance with effect from August 2025 onwards. 59.Clause 12.10.2 of the Terms and Conditions of Service, which was produced by both parties, provides as follows: -“Members of staff who use their cars to work will be paid car allowance at the rate shown in Schedule II after providing evidence of membership and proof of use. Evidence of ownership and use will be verified upon submission of log book (or of legal spouse), valid driving licenses and current insurance cover.” Underlined for emphasis 60.As is evident from the final limb of the foregoing clause, the specific manner and methods by which proof of ownership and use of a motor vehicle is to be established are expressly set out. 61.Equally, it is noteworthy that the said clause makes no reference to verification through the physical production of a motor vehicle or through the NTSA online portal. 62.Indeed, had the Respondent intended to incorporate such a requirement within Clause 12.10.2 of its Terms and Conditions and Service, nothing would have been easier than to expressly provide for it or, at the very least, to frame the provision in a manner that allows for verification through alternative means. 63.In the circumstances, the Court finds the canon of interpretation expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) to be applicable to the present case. This rule is defined in Black’s Law Dictionary (10th edition, p. 701) as follows: “A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” 64.In essence, where a law, contract, or instrument expressly specifies certain persons or things, it may be inferred that all others not mentioned are intended to be excluded from its scope of operation. 65.Applying this rule of interpretation to the present case, the Court finds that since Clause 12.10.2 of the Respondent’s Terms and Conditions of Service expressly sets out the modes of verifying proof of ownership and use of a motor vehicle namely the logbook (or that of a legal spouse), a valid driving licence, and current insurance cover, any mode not so provided is, by implication, excluded. 66.It therefore follows that by introducing an additional mode of verification not contemplated under Clause 12.10.2 through the internal memo dated 30th July 2025, the Respondent effectively altered the Terms and Conditions of Service. 67.Indeed, if the Respondent was of the view that the existing verification framework under Clause 12.10.2 was inadequate, the proper course would have been to amend the Terms and Conditions of Service to incorporate any additional verification mechanisms, rather than purporting to vary them through an internal memorandum. 68.In the premises, the Court finds that the introduction of verification requirements outside those stipulated under Clause 12.10.2 of the Respondent’s Terms and Conditions of Service was unlawful. Whether the Respondent infringed upon the Claimant’s members’ right to privacy by requiring them and their spouses to access the NTSA portal and provide additional information for purposes of verification 69.The Claimant has further contended that the Respondent infringed on its members’ right to privacy by requiring them and/or their spouses to furnish additional personal documentation. 70.A review of the internal memo dated 30th July 2025 shows that staff members were required, inter alia, to provide “verification of current ownership from NTSA (via online portal)” alongside other specified documents. 71.It is evident from the wording of the said requirement that, beyond the obligation to provide verification of current ownership through the NTSA online portal, the memo does not specify the manner in which access to the portal was to be undertaken. In particular, there is no indication that the Respondent’s audit team was to directly access employees’ NTSA accounts. On its face, therefore, the directive is open as to the method by which such verification was to be effected. 72.Notably, there is no evidence on record demonstrating that the Respondent’s audit team obtained unfettered access to the Claimant’s members’ NTSA portals without their consent. 73.In the circumstances, the Court is unable to find that the mere requirement for verification of motor vehicle ownership through the NTSA portal, in itself, amounts to a violation of the Claimant’s members’ right to privacy. Whether the Respondent’s intended recovery of sums already paid to the Claimant’s members as car allowance was lawful 74.The Claimant has further averred that the Respondent issued a clear warning to one of its members, Dr. Gichuki, to the effect that failure to comply with the verification requirements would result in him being deemed not to possess a vehicle and to have drawn the car allowance irregularly. 75.In support of this assertion, the Claimant produced an email dated 21st August 2025 in which Dr. Gichuki was informed that his vehicle had not been verified in accordance with the memo dated 30th July 2025. He was accordingly directed to present his vehicle for verification by close of business on 22nd August 2025, failing which it would be presumed that he did not own a vehicle and had been drawing the allowance irregularly. Dr. Gichuki was further notified that the allowance would be stopped and that the amounts already paid for the relevant period would be recovered. 76.From the contents of the said email, it is apparent that both the cessation of Dr. Gichuki’s car allowance and the recovery of sums previously paid to him were predicated on compliance with the internal memo dated 30th July 2025. 77.This Court has already found elsewhere in this judgment that the introduction of verification requirements outside those stipulated under Clause 12.10.2 of the Respondent’s Terms and Conditions of Service was unlawful. 78.It therefore follows that the intended withdrawal of the car allowance and the recovery of sums previously paid to Dr. Gichuki, to the extent that they were premised on non-compliance with requirements not contemplated under Clause 12.10.2, were likewise unlawful. 79.Conversely, it would not be unlawful for the Respondent to suspend payment of the car allowance or recover amounts already paid where there is non-compliance with the requirements prescribed under Clause 12.10.2 of the Terms and Conditions of Service. 80.Accordingly, the Court finds that the intended recovery of sums already paid to the Claimant’s members as car allowance is unlawful to the extent that it was anchored on non-compliance with requirements outside those prescribed under Clause 12.10.2 of the Respondent’s Terms and Conditions of Service. Disposition 81.In the final analysis, the Court finds in favour of the Claimant and accordingly allows the Memorandum of Claim dated 3rd September 2025, and makes the following orders: -a.A declaration is hereby issued that the Respondent’s intended recovery of sums already paid to the Claimant’s members as car allowance is unlawful to the extent that it is premised on failure to comply with requirements outside those prescribed under Clause 12.10.2 of the Respondent’s Terms and Conditions of Service.b.An order is hereby issued prohibiting the Respondent from implementing the internal memo dated 30th July 2025, in so far as it introduces requirements outside those prescribed under Clause 12.10.2 of the Respondent’s Terms and Conditions of Service.c.An order is hereby issued restraining the Respondent from withholding payment of car allowance to the Claimant’s members, subject to their strict compliance with Clause 12.10.2 of the Respondent’s Terms and Conditions of Service.d.In view of the subsisting social partnership between the parties, there shall be no order as to costs. DATED, SIGNED and DELIVERED at NYERI this 15th day of May 2026………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant Ms. Olalo instructed by Mr. KoceyoFor the Respondent Ms. MumbiCourt Assistant NdatiORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.………………………………STELLA RUTTOJUDGE