Mutuah v Tracom Services Limited (Cause E767 of 2021) [2023] KEELRC 2917 (KLR)
The bottom line
#A Kenyan employee won Kshs. 8.9 million in unpaid commissions after proving her claim with emails and records, but lost the larger amounts she couldn't substantiate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was entitled to payment of commissions for 2017-2020
Partially allowed. The Court found commissions were due but only for 2017 and 2019; the 2018 and 2020 figures were unsupported. Award of Kshs. 9,224,816.58 subject to set-off.
The Court weighed the evidence of the commission structure, email and text communications acknowledging commissions, and the Respondent's admissions that commissions were suspended or under discussion. However, the large tabulated figures lacked supporting sales documentation. Only the 2017 figure of Kshs. 5,458,320 and 2019 figure of Kshs. 3,766,496.58 were found payable on a balance of probabilities.
Whether the Claimant gave adequate notice of resignation and owed the Respondent payment in lieu
The Claimant was liable for one month's shortfall (Kshs. 261,661.66) as her 28 days' leave did not equate to the two months' notice required by the 9th April 2021 addendum.
The contractual notice period under the addendum was two months. The Claimant offered leave days and only covered one month. The Court netted off one month against pending leave days and held her liable for the balance of one month's salary, offset against her commission award.
Costs of the suit
Costs awarded to the Claimant but reduced by a third reflecting her partial success and the Respondent's partial success on the counterclaim.
Although costs normally follow the event, the Claimant recovered only a fraction of the sum claimed and the Respondent succeeded in part on the counterclaim (the notice shortfall). The Court therefore exercised its discretion to reduce the costs award by one third.
Legal principles established
#- A claimant claiming commissions must prove the entitlement and the basis of computation on a balance of probabilities; unsigned commission structures and unexplained tabulations may support a partial but not a full award
- Where an employee does not serve the full contractual notice period, the employer is entitled to payment in lieu of the shortfall, which may be offset against sums due to the employee
Court orders
#- 1.Judgment for the Claimant against the Respondent for Kshs. 8,963,154.92 being balance of unpaid commission after deducting Kshs. 261,661.66 due from the Claimant
- 2.Costs of the suit reduced by a third due to partial success on counterclaim
- 3.Interest on the sum in (a) above at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuah v Tracom Services Limited (Cause E767 of 2021) [2023] KEELRC 2917 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2917/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.