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Introduction
1. At all material times, May Murage (the Claimant) was employed by Wananchi Group Kenya LTD (the Respondent) from 2nd May 2014 until about 9th May 2017, when her employment was terminated due to redundancy. Contending that at the time of separation the Respondent unjustifiably and unlawfully withheld a sum from her terminal dues, the Claimant initiated the suit herein seeking;
a) A Declaration that the actions of the Respondent Company were unlawful and unfair to the Claimants;
b) General damages for unfair labour practices.
c) Orders that the Respondent release the withheld amount to the Claimant, being KShs 157,248/=
d) An order compelling the Respondent to issue a Certificate of Service to the Claimant.
e) Costs of this Suit and interest thereto.
f) Any other award that the court may deem fit.
2. The Respondent countered the Claimant’s claim with a Memorandum of reply, asserting that the Claimant was mistakenly credited with KShs. 267,979/-, which she had received in error. The Respondent argued that it was entitled to recover this amount from the Claimant’s dues.
The Claimant’s case
3. The Respondent employed her as a Sales Lead Analyst and was later promoted to the role of Business Development Lead as of 1st July 2016.
4. On 26th April 2017, she received a notification from her bank indicating that the Respondent had credited her account. The total amount, including her salary, was Two Hundred Sixty-Seven Thousand, Nine Hundred Seventy-Nine Kenyan Shillings (Kshs 267,979). Seeking clarification, she immediately contacted the Human Resources Manager and the payroll officer.
5. The Human Resource Manager informed her that the amount included a bonus payment, which her boss, Mr Michael Dabaly, had duly approved. It was clear that the bonus payments were made intentionally and unconditionally by the Respondent, without any solicitation from her. The Respondent expected her to use the funds freely, without needing further reference. Appreciative of this gesture, she proceeded to utilise the funds for her needs, fully aware that it constituted surplus income.
6. However, two months later, on 12th June 2017, while she was finalising a process with the Respondent to access her layoff dues—following the declaration of her position as redundant—the Human Resources Manager, without justification, informed her that the previously paid bonus would be deducted from her dues. The Human Resources Manager claimed that the initial payment had been a mistake by the Respondent and, therefore, needed to be recovered.
7. She objected to this decision, discussing with both the Human Resources Manager and the payroll manager the unfairness of the deduction. She had previously received confirmation from both the manager and the payroll accountant that the bonus had been approved and sanctioned by the Respondent. Since she had validated the payment and received official clearance, an irreversible legitimate expectation was created, and she used the funds in good faith.
8. Cross-examined by Counsel for the Respondent, the Claimant testified that she was first employed by the Respondent as a lead analyst in April 2024. She was subsequently, on 20th July 2016, promoted to the role of Business Development Lead, New Projects. Her entitlement to bonuses was provided for in her initial contract before the promotion.
9. For the year 2013, there was an eligibility criterion that was expressly set out via a Memo by the Respondent. The Memo expressly set out those categories of employees who couldn’t enjoy the bonus benefit. They included staff who were not on volume targets or on similar commission schemes. The bonus payment was to be based on individual performance in all circumstances.
10. By its letter dated 29th April 2016, the Respondent informed their staff of the eligibility criterion for the 2015 bonus. The communication was clear; those who were entitled to commissions were not entitled to bonuses. Additionally, the bonus was to be contractually provided.
11. Her payslip for 1st -30th April 2017 shows that she earned a commission of KShs. 37,278. The payslip for June 2017 also has an entry for commission.
12. There is no document that the Respondent addressed to her notifying, and confirming to her that she was entitled to a bonus for the year 2016. When she received the money into her account, she had to seek clarification, as before the money was credited into her account, she had not been notified of any entitlement to the same. Prior to her promotion, she was earning commissions. She expected the same to proceed even after the promotion.
13. According to her, the payment of the sum in question into her account was not in error. Based on the eligibility criteria, one would be entitled to a commission, a bonus, or both.
The Respondent’s case
14. The Respondent presented one witness, Tim Kajuma, to testify on their behalf. The witness adopted his witness statement dated 27th June 2023 as his evidence in chief. He stated that the Respondent employed the Claimant on 2nd May, 2014, as a Sales Lead Analyst-Cable. She was later promoted to the position of Business Development Lead-New Projects through a letter dated 19th July, 2016.
15. The Claimant’s employment contract stipulated her gross monthly salary as KShs. 80,000 and did not incorporate any clause regarding the payment or entitlement to a Bonus.
16. The payment of bonuses to any employee, including the Claimant, was and is part of the Respondent’s scheme for incentivising its employees. Incentives by the Respondent are structured into bonuses or commissions and are based on performance and evaluations. The Bonus Notices clearly provided that the bonus was only paid to employees who were not entitled to any form of performance-based reward.
17. Before her promotion, the Claimant was eligible for bonuses in her previous position, as they were based on performance evaluations. She received two bonuses, as indicated in letters dated March 20, 2015, and April 29, 2016.
18. Upon her promotion to the role of Development Lead-New Projects, effective July 19, 2016, she became eligible for commissions based on achieved targets. Since she was receiving commissions, she was not entitled to bonuses.
19. The Bonus Notices clearly stated that bonuses were only paid to employees who were not eligible for any other form of performance-based reward.
20. On or about April 26, 2017, while paying bonuses to employees entitled to them, the Respondent mistakenly transferred a total of KShs 267,979 to the Claimant’s account. This amount was transferred in error.
21. The Claimant’s assertion that the Human Resource Manager and payroll officer communicated to her that Mr. Michael Dabaly approved the payment is unfounded. This error was identified during an ongoing restructuring and audit process concerning the Respondent’s payroll, operations, and personnel. It was determined that the Claimant, along with other ineligible employees, had erroneously received bonus payments.
22. Upon discovering the error, the Respondent promptly notified all impacted employees, including the Claimant, and advised that the erroneous payments would be recovered from their terminal benefits. The Respondent acted within its rights, as the recovery was applied to all affected employees and was not directed solely at the Claimant.
23. The Respondent stated that the Claimant received a total of KShs. 267,979/-, which was mistakenly credited to her account. This amount included a gross bonus of KShs. 224,640/-, with an after-tax payment of KShs. 157,248/-, despite the Claimant not being entitled to it. She acknowledged receiving the funds, thereby benefiting unjustly from the error.
24. The Respondent conducted a restructuring process based on business considerations, leading to staffing changes. Employees were aware of this process, which affected the Claimant’s position. As a result, she was issued a Letter of Termination.
25. Upon acknowledging and accepting the Letter of Termination, the Claimant became entitled to redundancy payment, which was carefully calculated and paid, deducting the mistakenly transferred bonus.
26. The Claimant was paid all her terminal dues, and her claim is based on a misrepresentation of facts.
27. Cross examined by the Claimant’s Counsel, the witness testified that he joined the Respondent’s workforce on 1st January 2018. As such, when the events subject matter of the instant suit were happening, he had not joined the Respondent.
28. Per his statement, the Claimant was entitled to bonuses for the years 2014-2015. The bonus was paid when the Board of Management approved payment of the same as an incentive to its employees.
29. Though the letter dated 19th July 2016 mentioned that her salary had been reviewed and that all the other terms of employment were to be maintained, the letter did not mention payment of bonus and commission.
30. The error [ paying out bonus to ineligible persons] was discovered between May and June 2017. The Claimant was declared redundant on 12th June 2017.
Analysis and Determination
31. The parties herein did not agree on the issues for determination in this matter; as such, this Court is enjoined to craft them. I have carefully considered the pleadings, the evidence and the submissions by the parties, and the following issues emerge for determination;
I. Whether the Claimant was entitled to a bonus of KShs. 157,248/=at any time in the course of her employment.
II. If the answer to [I] above is in the negative, what should be the fate of the Claimant’s case herein?
Issue 1
32. It is undisputed that, at all material times, the Claimant was employed by the Respondent, and that on or around 26th April 2017, the Respondent transferred a total of KShs 267,979 to the Claimant’s account. The amount included KShs 157,248, credited to her account as a bonus earned. The Respondent deducted this amount from the Claimant’s terminal dues, hence this suit.
33. The core of the Claimant’s case was that the deduction of the amount was wrongful because she was lawfully entitled to the money. This Court has not overlooked the fact that the Claimant admitted under cross-examination that the payment of bonus and commission by the Respondent to its employees was based on a criterion. It was not simply earned; it was contingent on achieved targets or performance evaluations. The Claimant did not present any evidence to show that a performance evaluation or targets achieved earned her the bonus.
34. I note that the Claimant tenuously attempted to invoke the doctrine of legitimate expectation, initially to demonstrate her entitlement to the sum credited into her account. However, as found hereinabove, she did not adequately demonstrate her entitlement to this sum as a bonus or otherwise, whether due to her performance or targets achieved. Additionally, to establish that the amount was unlawfully deducted from her terminal dues.
35. I have carefully considered the circumstances and facts of this case, and I see no space for the applicability of the doctrine to aid the Claimant’s case. The decisions cited by the Claimant, inter alia, Republic vs Attorney General & Another Ex parte Waswa & 2 other [2005] 1 KLR 280, are unhelpful to the Claimant.
36. The Respondent asserted, and I find that this assertion was not effectively challenged, that within their operational procedures, an employee was entitled to either a bonus or a commission, but not both concurrently. From the evidence presented to this Court, it is evident that prior to her promotion, she received a bonus whenever she qualified for it; however, after her promotion, her incentive shifted to a commission basis. In her evidence under cross examination she admitted this shift. This fortifies this Court’s view that the doctrine of legitimate expectation has no place in this matter.
37. Having found as I have hereinabove, that the Claimant was not entitled in any proven manner to the sum of KShs. 157, 248, which was credited into her account, and as such, it was erroneously so credited as argued by the Respondent, I now turn to consider whether the deduction of the amount from the Claimant’s terminal dues was lawful.
38. Part IV of the Employment Act provides safeguarding measures for employees'' wages. Section 19 delineates the circumstances under which an employer may legitimately deduct from an employee’s wages. One such circumstance is outlined in subsection [e], which pertains to any amount inadvertently paid to the employee as wages exceeding the amount owed to him. Having found that the Claimant was not entitled to the sum, the subject matter of this suit and that the sum was erroneously paid out to the Claimant, I take a clear view that the Respondent lawfully recovered the money from her terminal dues.
39. It cannot be argued that the decision to make the deduction was unilateral, as the Claimant knew or ought to have known that she had not earned the money as a bonus, and as admitted in her evidence under cross-examination, the Human Resources Manager and Operations Manager informed her that the deduction was to be made.
40. The Claimant’s expectation that the erroneously paid bonus would not be recovered is unreasonable. The Respondent, therefore, had a right to recover the amount.
Issue II
41. Having found, as I have hereinabove, that the deduction was lawful, I see no grounds that can be a basis for granting the other reliefs sought by the Claimant, as they were entirely contingent upon an affirmative resolution of the first issue.
42. In the upshot, the Claimant’s case has to meet the fate of dismissal. It is hereby dismissed with costs.
Read Signed and Delivered this 16th Day of October 2025.
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Introduction
1. At all material times, May Murage (the Claimant) was employed by Wananchi Group Kenya LTD (the Respondent) from 2nd May 2014 until about 9th May 2017, when her employment was terminated due to redundancy. Contending that at the time of separation the Respondent unjustifiably and unlawfully withheld a sum from her terminal dues, the Claimant initiated the suit herein seeking;
a) A Declaration that the actions of the Respondent Company were unlawful and unfair to the Claimants;
b) General damages for unfair labour practices.
c) Orders that the Respondent release the withheld amount to the Claimant, being KShs 157,248/=
d) An order compelling the Respondent to issue a Certificate of Service to the Claimant.
e) Costs of this Suit and interest thereto.
f) Any other award that the court may deem fit.
2. The Respondent countered the Claimant’s claim with a Memorandum of reply, asserting that the Claimant was mistakenly credited with KShs. 267,979/-, which she had received in error. The Respondent argued that it was entitled to recover this amount from the Claimant’s dues.
The Claimant’s case
3. The Respondent employed her as a Sales Lead Analyst and was later promoted to the role of Business Development Lead as of 1st July 2016.
4. On 26th April 2017, she received a notification from her bank indicating that the Respondent had credited her account. The total amount, including her salary, was Two Hundred Sixty-Seven Thousand, Nine Hundred Seventy-Nine Kenyan Shillings (Kshs 267,979). Seeking clarification, she immediately contacted the Human Resources Manager and the payroll officer.
5. The Human Resource Manager informed her that the amount included a bonus payment, which her boss, Mr Michael Dabaly, had duly approved. It was clear that the bonus payments were made intentionally and unconditionally by the Respondent, without any solicitation from her. The Respondent expected her to use the funds freely, without needing further reference. Appreciative of this gesture, she proceeded to utilise the funds for her needs, fully aware that it constituted surplus income.
6. However, two months later, on 12th June 2017, while she was finalising a process with the Respondent to access her layoff dues—following the declaration of her position as redundant—the Human Resources Manager, without justification, informed her that the previously paid bonus would be deducted from her dues. The Human Resources Manager claimed that the initial payment had been a mistake by the Respondent and, therefore, needed to be recovered.
7. She objected to this decision, discussing with both the Human Resources Manager and the payroll manager the unfairness of the deduction. She had previously received confirmation from both the manager and the payroll accountant that the bonus had been approved and sanctioned by the Respondent. Since she had validated the payment and received official clearance, an irreversible legitimate expectation was created, and she used the funds in good faith.
8. Cross-examined by Counsel for the Respondent, the Claimant testified that she was first employed by the Respondent as a lead analyst in April 2024. She was subsequently, on 20th July 2016, promoted to the role of Business Development Lead, New Projects. Her entitlement to bonuses was provided for in her initial contract before the promotion.
9. For the year 2013, there was an eligibility criterion that was expressly set out via a Memo by the Respondent. The Memo expressly set out those categories of employees who couldn’t enjoy the bonus benefit. They included staff who were not on volume targets or on similar commission schemes. The bonus payment was to be based on individual performance in all circumstances.
10. By its letter dated 29th April 2016, the Respondent informed their staff of the eligibility criterion for the 2015 bonus. The communication was clear; those who were entitled to commissions were not entitled to bonuses. Additionally, the bonus was to be contractually provided.
11. Her payslip for 1st -30th April 2017 shows that she earned a commission of KShs. 37,278. The payslip for June 2017 also has an entry for commission.
12. There is no document that the Respondent addressed to her notifying, and confirming to her that she was entitled to a bonus for the year 2016. When she received the money into her account, she had to seek clarification, as before the money was credited into her account, she had not been notified of any entitlement to the same. Prior to her promotion, she was earning commissions. She expected the same to proceed even after the promotion.
13. According to her, the payment of the sum in question into her account was not in error. Based on the eligibility criteria, one would be entitled to a commission, a bonus, or both.
The Respondent’s case
14. The Respondent presented one witness, Tim Kajuma, to testify on their behalf. The witness adopted his witness statement dated 27th June 2023 as his evidence in chief. He stated that the Respondent employed the Claimant on 2nd May, 2014, as a Sales Lead Analyst-Cable. She was later promoted to the position of Business Development Lead-New Projects through a letter dated 19th July, 2016.
15. The Claimant’s employment contract stipulated her gross monthly salary as KShs. 80,000 and did not incorporate any clause regarding the payment or entitlement to a Bonus.
16. The payment of bonuses to any employee, including the Claimant, was and is part of the Respondent’s scheme for incentivising its employees. Incentives by the Respondent are structured into bonuses or commissions and are based on performance and evaluations. The Bonus Notices clearly provided that the bonus was only paid to employees who were not entitled to any form of performance-based reward.
17. Before her promotion, the Claimant was eligible for bonuses in her previous position, as they were based on performance evaluations. She received two bonuses, as indicated in letters dated March 20, 2015, and April 29, 2016.
18. Upon her promotion to the role of Development Lead-New Projects, effective July 19, 2016, she became eligible for commissions based on achieved targets. Since she was receiving commissions, she was not entitled to bonuses.
19. The Bonus Notices clearly stated that bonuses were only paid to employees who were not eligible for any other form of performance-based reward.
20. On or about April 26, 2017, while paying bonuses to employees entitled to them, the Respondent mistakenly transferred a total of KShs 267,979 to the Claimant’s account. This amount was transferred in error.
21. The Claimant’s assertion that the Human Resource Manager and payroll officer communicated to her that Mr. Michael Dabaly approved the payment is unfounded. This error was identified during an ongoing restructuring and audit process concerning the Respondent’s payroll, operations, and personnel. It was determined that the Claimant, along with other ineligible employees, had erroneously received bonus payments.
22. Upon discovering the error, the Respondent promptly notified all impacted employees, including the Claimant, and advised that the erroneous payments would be recovered from their terminal benefits. The Respondent acted within its rights, as the recovery was applied to all affected employees and was not directed solely at the Claimant.
23. The Respondent stated that the Claimant received a total of KShs. 267,979/-, which was mistakenly credited to her account. This amount included a gross bonus of KShs. 224,640/-, with an after-tax payment of KShs. 157,248/-, despite the Claimant not being entitled to it. She acknowledged receiving the funds, thereby benefiting unjustly from the error.
24. The Respondent conducted a restructuring process based on business considerations, leading to staffing changes. Employees were aware of this process, which affected the Claimant’s position. As a result, she was issued a Letter of Termination.
25. Upon acknowledging and accepting the Letter of Termination, the Claimant became entitled to redundancy payment, which was carefully calculated and paid, deducting the mistakenly transferred bonus.
26. The Claimant was paid all her terminal dues, and her claim is based on a misrepresentation of facts.
27. Cross examined by the Claimant’s Counsel, the witness testified that he joined the Respondent’s workforce on 1st January 2018. As such, when the events subject matter of the instant suit were happening, he had not joined the Respondent.
28. Per his statement, the Claimant was entitled to bonuses for the years 2014-2015. The bonus was paid when the Board of Management approved payment of the same as an incentive to its employees.
29. Though the letter dated 19th July 2016 mentioned that her salary had been reviewed and that all the other terms of employment were to be maintained, the letter did not mention payment of bonus and commission.
30. The error [ paying out bonus to ineligible persons] was discovered between May and June 2017. The Claimant was declared redundant on 12th June 2017.
Analysis and Determination
31. The parties herein did not agree on the issues for determination in this matter; as such, this Court is enjoined to craft them. I have carefully considered the pleadings, the evidence and the submissions by the parties, and the following issues emerge for determination;
I. Whether the Claimant was entitled to a bonus of KShs. 157,248/=at any time in the course of her employment.
II. If the answer to [I] above is in the negative, what should be the fate of the Claimant’s case herein?
Issue 1
32. It is undisputed that, at all material times, the Claimant was employed by the Respondent, and that on or around 26th April 2017, the Respondent transferred a total of KShs 267,979 to the Claimant’s account. The amount included KShs 157,248, credited to her account as a bonus earned. The Respondent deducted this amount from the Claimant’s terminal dues, hence this suit.
33. The core of the Claimant’s case was that the deduction of the amount was wrongful because she was lawfully entitled to the money. This Court has not overlooked the fact that the Claimant admitted under cross-examination that the payment of bonus and commission by the Respondent to its employees was based on a criterion. It was not simply earned; it was contingent on achieved targets or performance evaluations. The Claimant did not present any evidence to show that a performance evaluation or targets achieved earned her the bonus.
34. I note that the Claimant tenuously attempted to invoke the doctrine of legitimate expectation, initially to demonstrate her entitlement to the sum credited into her account. However, as found hereinabove, she did not adequately demonstrate her entitlement to this sum as a bonus or otherwise, whether due to her performance or targets achieved. Additionally, to establish that the amount was unlawfully deducted from her terminal dues.
35. I have carefully considered the circumstances and facts of this case, and I see no space for the applicability of the doctrine to aid the Claimant’s case. The decisions cited by the Claimant, inter alia, Republic vs Attorney General & Another Ex parte Waswa & 2 other [2005] 1 KLR 280, are unhelpful to the Claimant.
36. The Respondent asserted, and I find that this assertion was not effectively challenged, that within their operational procedures, an employee was entitled to either a bonus or a commission, but not both concurrently. From the evidence presented to this Court, it is evident that prior to her promotion, she received a bonus whenever she qualified for it; however, after her promotion, her incentive shifted to a commission basis. In her evidence under cross examination she admitted this shift. This fortifies this Court’s view that the doctrine of legitimate expectation has no place in this matter.
37. Having found as I have hereinabove, that the Claimant was not entitled in any proven manner to the sum of KShs. 157, 248, which was credited into her account, and as such, it was erroneously so credited as argued by the Respondent, I now turn to consider whether the deduction of the amount from the Claimant’s terminal dues was lawful.
38. Part IV of the Employment Act provides safeguarding measures for employees'' wages. Section 19 delineates the circumstances under which an employer may legitimately deduct from an employee’s wages. One such circumstance is outlined in subsection [e], which pertains to any amount inadvertently paid to the employee as wages exceeding the amount owed to him. Having found that the Claimant was not entitled to the sum, the subject matter of this suit and that the sum was erroneously paid out to the Claimant, I take a clear view that the Respondent lawfully recovered the money from her terminal dues.
39. It cannot be argued that the decision to make the deduction was unilateral, as the Claimant knew or ought to have known that she had not earned the money as a bonus, and as admitted in her evidence under cross-examination, the Human Resources Manager and Operations Manager informed her that the deduction was to be made.
40. The Claimant’s expectation that the erroneously paid bonus would not be recovered is unreasonable. The Respondent, therefore, had a right to recover the amount.
Issue II
41. Having found, as I have hereinabove, that the deduction was lawful, I see no grounds that can be a basis for granting the other reliefs sought by the Claimant, as they were entirely contingent upon an affirmative resolution of the first issue.
42. In the upshot, the Claimant’s case has to meet the fate of dismissal. It is hereby dismissed with costs.
Read Signed and Delivered this 16th Day of October 2025.
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