Victoria Ipomai v Sanlam Kenya PLC [2018] KEELRC 1947 (KLR)
The bottom line
#A Kenyan court stopped an employee's disciplinary hearing set for South Africa because the employer hadn't followed its own HR rules.
What this practically means
#Executive summary
#Key legal issues
#Proper constitution of the disciplinary committee
The committee was not properly constituted under the Respondent's own HR Policy, which requires disciplinary cases involving senior employees to be determined by the Human Resources Board Committee
Section 4.3.4 of the HR Policy and Procedures Manual requires disciplinary cases involving senior employees to be cascaded by the Chief Executive to the Human Resources Board Committee, which determines the case. The committee constituted comprised a Labour Relations Advisor with no evidence of Board or Committee membership, and other members whose membership of the HR Board Committee was not established. Since the Manual made no express provision for external experts, the committee was improperly constituted.
Jurisdiction to intervene in a disciplinary process
The Court has jurisdiction to intervene but only in exceptional cases with compelling reasons, such as grave injustice and lack of alternative means of attaining justice
Drawing on authorities including KPAWU v Finlays and Aviation & Allied Workers Union v Kenya Airways, the Court held that intervention in pending disciplinary processes is reserved for exceptional cases. Compelling reasons include grave injustice to the employee and absence of alternative means of attaining justice. The Court found such exceptional circumstances here, warranting intervention by way of a stay.
Holding a disciplinary hearing outside Kenya
Holding the hearing in Cape Town without a clear agreement on applicable law casts doubt on whether the protections assured to the employee under Kenyan law would be observed
The employment contract was concluded and performed in Kenya, the parties are domiciled in Kenya, and the contract is subject to Kenyan law. Holding the disciplinary hearing outside the Court's jurisdiction, in Cape Town, without a clear agreement as to the applicable law left doubt whether the statutory and constitutional protections assured to the employee would be observed, constituting an exceptional circumstance justifying intervention.
Legal principles established
#- An employer with a disciplinary policy must scrupulously comply with it; failure to observe internal disciplinary procedures may amount to repudiation of contract
- The Court may intervene in a disciplinary process only in exceptional cases where compelling reasons are shown
Court orders
#- 1.Pending the hearing and determination of the Claim, the intended disciplinary hearing against the applicant scheduled for 8 March 2018 or any other date in Cape Town, South Africa is stayed
- 2.The Court has not interdicted disciplinary proceedings within Kenya in accordance with the Respondent's HR Policies and Procedures Manual
- 3.Costs in the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Ndegwa Muturi v Teachers Service Commission [2019] KEELRC 1565 (KLR)[2019] KEELRC 1565 (KLR)20 May 2019
Cite this brief
#Cite this brief
Caselaw, "Victoria Ipomai v Sanlam Kenya PLC [2018] KEELRC 1947 (KLR)", Case Analysis (2018). Cause No 263 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1947/eng@2018-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.