Shop & Deliver Limited t/a Betika v Njagi (Miscellaneous Case E145 of 2022) [2023] KEELRC 228 (KLR)
The bottom line
#Kenyan employers cannot legally withhold an employee's terminal dues merely because that employee faces criminal charges, the Employment and Labour Relations Court has ruled.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of withholding terminal dues of an employee facing criminal charges
The withholding of two-thirds of the respondent's terminal dues was unjustified and unlawful; a charge sheet is neither a conviction nor proof of culpability, and the presumption of innocence applies.
Section 19(1) of the Employment Act lists nine situations permitting deductions, none of which includes being charged in court. Section 19(1)(b) covers damage to or loss of property occasioned by wilful default, but money is not property within that provision and culpability is unproven while the criminal case is pending. A criminal case is not a civil recovery, and even a conviction would not on its own justify withholding terminal dues.
Competence of the miscellaneous application
The application was incompetent for lack of a substantive suit or petition as anchorage; substantive reliefs are not granted in miscellaneous applications.
Neither section 19(3) of the Employment Act nor section 12(3) of the ELRC Act prescribes how a suit should be instituted. Section 12(3)(viii), read ejusdem generis, does not include affirming a unilateral employer decision. The applicant should have filed a claim or petition setting out the foundation of the rights sought to be enforced; the court declined to ameliorate its procedural choice.
Presumption of innocence and fair trial
The applicant had effectively pre-judged the respondent's guilt contrary to his constitutional rights as an accused person.
The court held that a charge sheet is an allegation awaiting substantiation to the criminal standard of proof beyond reasonable doubt. The respondent remains entitled to the constitutional rights of an accused person, including presumption of innocence and fair trial before an impartial court, and the applicant appeared to have convicted him already.
Legal principles established
#- Being charged with a criminal offence is not one of the permitted grounds for deduction or withholding of wages under section 19(1) of the Employment Act, and withholding of salary is sanctioned only in specifically defined instances.
- Section 19(1)(b) of the Employment Act on damage or loss of property does not extend to money, and culpability must first be established.
- Substantive reliefs cannot be granted through a miscellaneous application without a substantive suit or petition as anchorage.
- An employer cannot seek judicial affirmation of a unilateral statutory power already exercised.
Court orders
#- 1.The applicant's notice of motion dated September 23, 2022 is dismissed
- 2.Costs to the respondent
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 and section 12(1) and 12(3) of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiunga v Wellendorf (Environment and Land Case Civil Suit E005 of 2025) [2026] KEELC 491 (KLR)[2026] KEELC 491 (KLR)29 Jan 2026
- Munderu & 5 others v Panyako the General Secretary, Kenya National Union of Nurses & another (Petition 6 of 2020) [2023] KEELRC 2610 (KLR)[2023] KEELRC 2610 (KLR)19 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Shop & Deliver Limited t/a Betika v Njagi (Miscellaneous Case E145 of 2022) [2023] KEELRC 228 (KLR)", Case Analysis (2023). Notice of motion application dated September 23, 2022 (Criminal Case No. E429 of 2022 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/228/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.