[2015] KEELRC 405 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 167 OF 2015

JUSTIN NYANG'WARA ...................................................................CLAIMANT

VRS

MUMIAS SUGAR CO. LTD..........................................................RESPONDENT

R U L I N G

On 2nd June, 2015 the Claimant filed a Notice of Motion under certificate of urgency seeking the following orders:-

1. For purposes of the record this application be certified urgent and be herd forthwith and ex-parte in the first instance

2. The Respondent, its' employees, workers, agent and/or whomsoever jointly and severally be prohibited from terminating the services of the Claimants with the Respondent company pending the hearing and determination of this application.

3. The Respondent, it's employees, workers agents and/or whomsoever jointly and severally be prohibited from terminating the services of the Claimants with the Respondent company pending the hearing and determination of this suit.

4. The costs of this application be provided for.

The application was supported by the Claimant's affidavit and the following grounds:-

a) The Respondent has issued a suspension letter to the Claimant.

b) The Claimant was not accorded a fair hearing by the Respondent and is as such apprehensive that their decision will not be fair and balanced.

c) The Claimant stands to suffer irreparable harm if the Respondent is not stopped from terminating his services.

d) The Claimant hereby gives an undertaking as to damages and is willing to abide by the conditions that the court will impose on him to issue the injunctive relied.

The application was heard before D.K. Njagi Marete - J sitting in Kericho on 26th May, 2015 and the following orders granted:-

1. This application be and is hereby certified as urgent and be heard as such in the first instance.

2. The Respondent, its employees, workers, agents and/or whomever jointly and severally be prohibited from terminating the services of the Claimant with the Respondent company pending the hearing and determination of this application and on further orders of court.

3. The application and orders of court be served onto the Respondent forthwith but not later than the close of the on 27/05/2015.

4. The application be heard inter parties on 02. 06. 2015 at 9. 00 at Kisumu.

The Respondent filed the Replying Affidavit of Boniface Makhandia on 15th June, 2015. The application was argued before me on 30th June, 2015.

Background

The Claimant was employed by the Respondent as a Management Trainee by letter of offer dated 11th October, 2010 on probation for six months. He was confirmed by letter dated 25th June, 2012 in the position of Field Superintendent, Grade C5 (a) but effective from 15th May, 2012. At the time of termination he was the Manager, Agronomy section.

On 26th January, 2015 the Claimant received a letter titled "Notice of Suspension/Show Cause." In the letter he was accused of the following:-

a)You knowingly and deliberately abused your position to acquire company seed cane andextended Mayoni 207 plot 2 which is an A nursery by 0. 07 ha on an area which was not among the company surveyed plot contrary to the established company procedure.

b. You engaged into activities amounting to conflict of interest knowing very well that you did not declare that you are engaged in the said sugar cane business contrary to your employment contract and the company's conflict of interest policy.

c. You fraudulent activities have caused dissatisfaction to the farmer thus impacting negatively on the company's corporate image at the time when the company is busy courting the loyalty of the farmers

The Claimant responded to the show cause letter on 28th January, 2015 denying the charges against him.

In his supporting affidavit the Claimant states that on 2nd May 2015 he received a letter dated 15th April, 2015 from his immediate supervisor Boniface Makhandia recommending the termination of his employment to the Director of Human Resources. He therefore became apprehensive that a decision had been made to terminate his employment even before the disciplinary hearing, and that such termination would be in violation of the Respondent's disciplinary procedure.

In the Replying Affidavit, Boniface Makhandia depones that in December, 2014 a farmer, Topister Achieng Mambo filed a complaint against the Claimant to Agronomy section which fell under Agricultural Operations Department which he headed. Inquiries were carried out which established suspected misconduct on the part of the Claimant leading to his suspension. The Security Services Manager carried out investigations and the report of the investigations were forwarded to him on 13th April, 2015. The report recommended disciplinary action against the Claimant. Following the findings in the report Mr. Makhandia recommended disciplinary action of the Claimant to the Director of Human Resources. The letter to the Director of Human resources was confidential and was not copied to the Claimant and Mr. Makhandia denied that the Claimant received the recommendation as deponed in the affidavit of the Claimant.

Mr. Makhandia further deponed that the Human Resources Department carried out its independent investigations and formed the opinion that the conduct of the Claimant warranted his dismissal. A disciplinary hearing for the Claimant was conducted on 27th April, 2015 to enable the Claimant defend himself against the charges levelled against him which the Claimant attended together with one Dominic Marita who accompanied him. The disciplinary committee reached a decision to terminate the Claimant's services and a letter of termination was written on 21 May 2015 and delivered to the Claimant through his department.

Mr. Makhandia deponed that when the Claimant got wind of the letter he went into hiding to evade receipt of the letter in breach of the terms of his suspension which required him to be reachable and accessible. The letter was delivered to the Claimant's residence within the Respondents premises but there was nobody at the house. Mr. Makhandia deponed that further attempts to deliver the letter to the Claimant by courier on 27th May, 2015 were futile as the letter was returned uncollected.

It is the Respondent's opinion that the Claimant has come to court with dirty hands and that his application is overtaken by events.

Mr. Odeny appearing for the Claimant submitted that the Claimant was not accorded a fair hearing at the disciplinary hearing which was geared to terminating the Claimant's employment rather than finding out what transpired. That the issues put to the Claimant at the time of the hearing were different from those he responded to as the issues at the hearing were 5 as opposed to 3 which were in his letter of suspension. That it is a breach of the tenets of natural justice to raise 3 issues then subject the Claimant to 5 issues at the hearing as he was not given an opportunity to respond to 2 issues. He submitted that the Claimant had demonstrated a prima facie case, that the Claimant would suffer loss that cannot be compensated by damages as his employment is his only source of livelihood. That even the balance of convenience tilts in favour of the Claimant as there is no harm to the Respondent as the Claimant is still in employment. He thus submitted that the Claimant had met the threshold for orders in Giella vs Casman Brown. He urged the court to grant orders as prayed.

Ms Wakoli for the Respondent submitted that the Claimant was accorded a fair hearing. That there was initial inquiry on the complaint by the farmer followed by investigations after which the Claimant was issued the Show Cause letter. That the Claimant was given a fair hearing at the disciplinary hearing which he attended accompanied by Dominic Marita.

Ms Wakoli further submitted that the Claimant did not disclosed how he came into possession of a confidential letter from his head of department to the Director of Human Resources. That the letter in any event only communicated the recommendations in the investigation report. That after the disciplinary hearing a decision was made to terminate the employment of the Claimant but the Claimant evaded being served with the letter. That when he came to court the Claimant was aware of the termination of his employment. That the application was brought in bad faith with material non-disclosure. That the orders sought have been overtaken by events. That the Claimant has not demonstrated a prima facie case or loss that cannot be compensated by way of damages as set out in the case of Giella v Cassman Brown. That the Respondent is willing to compensate the Claimant as set out in his letter of termination.

Issues

I have considered the application together with grounds and affidavit in support thereof as well as documents attached thereto. I have also considered the replying affidavit together with documents attached thereto.

The issue for determination is whether the Claimant has met the threshold for granting of the orders sought in his application.

Determination

A perusal of the Claimant's affidavit discloses that he did not state that he had attended a disciplinary hearing. He also did not disclose that by the time he went to court a letter of termination had already been prepared. He did not deny the averments in the replying affidavit to the effect that he had been evading service of the letter of termination from 21st May, 2015. The submissions by his advocate were that the disciplinary hearing was unfair yet the Claimant in his affidavit deponed that he had been condemned without a hearing and did not refer to any hearing having taken place.

The Claimant seeks orders which are in their nature equitable. A person who seeks equity must come with cleans hands. The claimant withheld material information which had he disclosed to the court he would not have been granted the orders he was seeking. Apart from material non-disclosure the Claimant is also guilty of misleading the court. At paragraphs 7,8, and 10 of his supporting affidavit the Claimant stated that he had been assured that he would continue being in the employment of the Respondent, that he received a letter from Mr. Makhandia recommending his sacking to the Director of Human Resources and that Mr. Makhandia informed him that the Respondent was in the process of preparing his letter of termination which he would receive in the week of 25th to 29th June, 2015. By this time he was aware that the letter of termination had been written but could not be delivered to him because he was evading its delivery.

These material non disclosures and deliberate misrepresentation would be sufficient to deny the Claimant the orders sought. However, as pointed out by Counsel for the Respondent, the Claimant had already been terminated from employment on 21st May 2015 and the orders sought are overtaken by events.

For the foregoing reasons Claimant's application dated 25th May, 2015 is dismissed and orders granted on 26th May, 2015 vacated.

Dated signed and delivered this 1st October, day of 2015

MAUREEN ONYANGO

JUDGE