Justice Jacob Gakeri declined to endorse the application by Shop & Deliver Ltd, popularly known as Betika, to withhold two-thirds of Fred Gitonga’s terminal dues after he was summarily fired last August.
The former employer argued that it is not sure whether it will recover the Sh11 million allegedly stolen by the former head of technology at the firm.
But the Employment and Labour Court judge said although Mr Gitonga 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 unilateral act of withholding the respondent’s terminal dues on the premise that the respondent had a pending criminal case was unjustified and unlawful,” the judge said.
The judge said 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, the respondent 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.
Sh1.9m salary
The court heard that Mr Gitonga was appointed the head of technology at the betting firm in December 2017 and confirmed six months later. He was earning Sh1.9 million salary a month.
It is alleged that Mr Gitonga stole Sh11 million from the firm between January 13 and February 3 last year being a servant of Betika. He was arrested and charged and the court freed him upon paying cash bail of Sh200,000.
The employer said it conducted internal investigations and took disciplinary action against Mr Gitonga before terminating his employment for gross misconduct.
And whereas the company is obligated to pay him Sh12.5 million as terminal dues, the firm decided to withhold Sh8.3 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 from it and believes it would be best to withhold part of Mr 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.
Mr Gitonga 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.
