“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.