Charles Mutinda Mutua v Bukura Agricultural College [2018] KEELRC 1161 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 62  OF 2018

(Before Hon.  Justice Mathews N. Nduma)

CHARLES MUTINDA MUTUA..................................CLAIMANT

VERSUS

BUKURA AGRICULTURAL COLLEGE.............RESPONDENT

R U L I N G

1. By a Notice of Motion Application dated 20th March 2018, the Claimant seeks the court to reinstate him to his employment as an accountant II pending the hearing and determination of the claim.

2. The application is based on the grounds set out on the face of the Notice of Motion to wit, that the applicant has been in employment for 15 months, a period beyond the probationary period.

3. That by operation of the law, the applicant is presumed to have been confirmed as permanently employed.

4. That by a letter dated 5th March, 2018 the applicant received a letter terminating his probationary appointment.  The Claimant/Applicant allege the termination is unfair labour practice as he was accorded no hearing and that he be reinstated pending the hearing of the suit.

Replying Affidavit

5. Application is opposed vide a replying affidavit of Dr. Richard Wekesa the Principal/CEO of the Respondent college.

6. He deposes that the applicant was recruited on 28th November, 2016 to the position of Accountant II at job grade BAC 5.  He was placed on probationary period of six (6) months.

7. The Applicant had presented in his curriculum vitae fictitious referees whose numbers could not be reached by the Respondent on or about February, 2017.

8. On 9th November 2017, the Respondent wrote a request of reference letter to the Applicant’s immediate previous employer – South Eastern University of Kenya (SEKU).

9. The previous employer responded with a letter indicating that the applicant had been dismissed by the previous employer upon defrauding the employer Kshs.10,390,533.  This had not been disclosed by the Applicant during his recruitment interview or in his Curriculum vitae.

10. On 22nd February, 2018 the Applicant unilaterally requested the Respondent to extend his probation period with a view to settle pending issues with his previous employer.  Letter of request is attached and marked ‘R K W 3’.

11. The Applicant was surcharged by the previous employer to reimburse the embezzled sum but had failed to disclose this and pay the surcharge.

12. The Applicant had also failed to disclose to the Respondent that he was facing criminal charges over the matter in Kitui Criminal Case No. 486/2015.  That the application has no merit and it be dismissed.

Determination

13. Following the case of Giella v Cassman Brown Limited, and the Mrao v First American Bank of Kenya Limited & 2 others (2003)eKLRthe Applicant has failed to disclose a prima facie case with a probability of success.  No irreparable harm, incapable of making good by way of damages has been shown.

14. The balance of convenience is in favour of not granting the relief sought.  In any event, this court is loathe on reinstating employees whose employment has been terminated using interim orders unless extra ordinary circumstances are shown to exist.  None do exist in this case.

15. The application is dismissed.  Costs in the cause.

Dated and Signed in Kisumu this 20th day of  September, 2018

Mathews N. Nduma

Judge

Appearances

Mr. Getanda for Claimant/Applicant

Nyauma for Respondent

Chrispo – Court Clerk