Betting firm Betika will now have to pay its former technology boss Fred Gitonga Njagi his full dues totalling over Ksh12.5 million.
This is after Justice Jacob Gakeri of the Employment and Labour Court declined to endorse the application by Shop & Deliver Ltd, popularly known as Betika, to withhold two-thirds of Gitonga’s terminal dues of Ksh12, 562,575 after he was summarily fired last year following fraud allegations at the company.
"I find that withholding of Gitonga's terminal dues by Betika was unjustifiable in law, and the avenue user to seek relief lacked the necessary anchorage, the application is unsustainable and is accordingly dismissed with costs, "the judge ruled.
Gitonga was appointed the head of technology at the betting firm in December 2017 and confirmed six months later. He was earning a Ksh1.9 million salary a month.
It is alleged that Gitonga stole Ksh11 million from the firm between January 13 and February 3, 2022, being a servant of Betika.
He was arrested and charged before Milimani Chief Magistrate's court. The court however freed him upon paying cash bail of Ksh200,000. The case is still pending a hearing and determination.
Following the prosecution of Gitonga in April last year, Betika undertook internal investigations and took disciplinary action against him before terminating his employment in August last year for gross misconduct.
And whereas the company is obligated to pay him Ksh12.5 million as terminal dues, the firm decided to withhold Ksh8.3 million, pending the conclusion of the criminal case.
The company then moved to court seeking the endorsement of the decision, arguing that it is apprehensive that it may not recover the money stolen and believes it would be best to withhold part of Gitonga’s terminal dues.
The firm submitted that it has the right to withhold or deduct wages under Section 19 of the Employment Act, 2007.
But Gitonga's Lawyer Henry Kurauka opposed the case, saying he has the right to fair trial by dint of Article 50(2)(a) of the Constitution, yet the company wants to condemn against the law.
In his decision, judge Gakeri concurred with lawyer Kurauka's submission that although his client has a pending criminal case, he is still presumed innocent.
“For the above-stated reasons, it is the finding of the court that the applicant’s(Betika) unilateral act of withholding the respondent’s(Gitonga) terminal dues on the premise that the respondent had a pending criminal case was unjustified and unlawful,” the judge ruled.
Further, the court stated that; "it is in agreement with Gitonga's counsel's submissions that a charge sheet was neither a conviction nor an indication of culpability. It is allegations awaiting substantiation through cogent evidence and the requisite standard of proof was beyond any reasonable or shadow of doubt."
Justice Gakeri also stated the withholding of salary or wages is only sanctioned in specifically defined instances such as where the employee has taken an advance or is on suspension, surcharge, or other legitimate cause.
“Needless to emphasise, Gitonga remains a suspect or accused person and is entitled to all the constitutional rights of an accused person, including the presumption of innocence and fair trial before an impartial court,” the judge added.