George Muteti v Express DDB Kenya [2015] KEELRC 256 (KLR)
The bottom line
#Kenya's Employment Court ruled an ad agency wrongfully locked out its marketing manager and must pay his full dues plus 20% commission.
What this practically means
#Executive summary
#Key legal issues
#Which contract terms (commission rate and commencement date) applied to the Claimant's employment
The second contract dated 15th November 2012 with terms backdated to 15th November 2011 applied; the 20% of net profit commission rate was enforceable
Both contracts bore 15th November 2011 as commencement date. The Respondent's CEO admitted signing the second contract pegging commission at 20% because the Claimant complained of the first contract's unfavourable rate. The Court held parties may backdate contractual terms where no law is broken and nothing unconscionable exists, and courts cannot rewrite contracts.
Whether the Claimant deserted duty or was wrongfully terminated
The Claimant was wrongfully terminated vide an unlawful lock out; the desertion defence failed
The Respondent had acquiesced for nearly two years in the Claimant's absence on Saturdays, creating a legitimate expectation. Warning letters lacked documented acknowledgement of receipt. Even if desertion were proved, the employer would have had to demonstrate a disciplinary process, which was absent. The Claimant's testimony of being locked out on 22nd July 2013 was accepted.
The basis and scope of the commission payable
Commission was payable at 20% of net profit on below the line jobs only, with net profit calculated after deducting job-related expenses including overheads
Evidence showed the Claimant's role was marketing at the direct single sourcing level, not subject to public procurement procedures, so he was entitled to commission only for below the line marketing efforts. Net profit is revenue less cost of goods sold and all additional expenses, with each job carrying its share of expenses.
Legal principles established
#- A court cannot rewrite a contract between parties; parties are bound by their contractual terms unless coercion, fraud or undue influence are pleaded and proved
- Where an employer raises desertion as a defence to a wrongful termination claim, it must show a disciplinary trail
- Acquiescence by an employer in an employee's absence on a day of worship creates a legitimate expectation, so absence does not amount to desertion
Court orders
#- 1.Award of 4 months' salary (Kshs.120,000.00) as compensation for wrongful termination
- 2.Award of 1 month's salary in lieu of notice (Kshs.30,000.00)
- 3.Award of salary for 22 days worked in July 2013 (Kshs.22,000.00)
- 4.Payment of Kshs.20,000.00 held by the Respondent on the Claimant's account
- 5.Payment of 17 days' leave pay (Kshs.17,000.00)
- 6.Accrued commission based on 20% of net profit on all below the line jobs procured through the Claimant's marketing efforts, to be tabulated and agreed by counsel within 14 days
- 7.Respondent directed to issue the Claimant with a certificate of service
- 8.Respondent to pay the costs of the case
- 9.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment and Labour Relations Court Act / Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Muteti v Express DDB Kenya [2015] KEELRC 256 (KLR)", Case Analysis (2015). Cause No 1441 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/256/eng@2015-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.