By The Weekly Vision
A whistle-blower has won a case against his former employer Shop and Deliver Limited (Betika). The former employee is alleged to have revealed damaging information about how the company operates to a third party. The employer is then said to have fraudulently withheld his terminal dues.
Betika is one of the betting companies in Kenya, according to the Betting Control and Licensing Board the company is owned and managed by Shop and Deliver Limited with several Kenyan shareholders including the main director, Chris Mwirigi. Betika had moved to court to be allowed to withhold two-thirds (2/3) of the terminal dues owed to a former employee Fred Gitonga Njangi. Njangi was sacked after the company suspected that he had divulged underhand dealings at the company where gamblers were allegedly being fleeced through a compromised IT system. The team at Betika allegedly edits bets placed to make gamblers lose when they were supposed to win.
By him being the Head of Technology, Mr Njagi was privy to what was going on behind the scenes and at one time he is said to have been opposed to the manipulation of the system. It is claimed he shared the same with non-staff who later exposed the dirty deals. It was after the exposure that Betika began to fix Mr Njagi to sack him. In a financial set-up to have Njangi sacked, it is alleged that between January 13, 2022, and February 3, 2022, he allegedly stole Ksh. 11,007,393 belonging to the company, he was arrested for stealing by a servant. Betika allegedly conducted internal investigations and took disciplinary action against him and terminated his employment for gross misconduct.
It was later agreed that Betika should pay Ksh.12,562,575.65 to Mr Njagi as terminal dues but owing to the charges facing him in court, the company withheld two-thirds of the total sum due of Ksh. 8,375,050.43 pending the hearing and determination of the ongoing criminal case. Records reveal that Njagi was Betika’s employee earning a monthly salary of Ksh.1,980,000 and his employment was terminated unfairly and unjustly. He was arrested at the instigation of Betika and incarcerated at the central police station for 10 days and unlawfully and maliciously charged with stealing by a servant and admitted to bail of Ksh. 200,000.
The judge noted that Betika had computed Njagi’s terminal dues of Ksh.17,938,800.00, translating to a net of Ksh.12,562,575.6 but withheld 2/3 of the sum on the ground that the respondent had a pending criminal case. In a ruling dated 31st January 2023 by Judge Jacob Gakeri, the judge noted that 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.
He further noted that a criminal case analogous to the one facing Njagi is not a civil recovery. It is a case instituted by the state to ascertain whether or not the respondent committed the offence he is charged with and even if he was found guilty the conviction would not on its own justify the withholding of his terminal dues.
The ruling reads in part “For the above-stated reasons, it is the finding of the court 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 final order by the judge reads “In the end, having found that withholding of the respondent’s terminal dues by the applicant was unjustifiable in law, and the avenue used to seek relief lacked the necessary anchorage, the application is unsustainable and is accordingly dismissed with costs”.
