Evans Nyagah Njoki v Sanlam Kenya PLC [2018] KEELRC 1959 (KLR)
The bottom line
#A Kenyan court stopped an employer from holding a disciplinary hearing abroad because it ignored its own HR policy in setting up the committee.
What this practically means
#Executive summary
#Key legal issues
#Proper constitution of disciplinary committee under employer's internal policy
The committee constituted to hear the applicant's case did not conform to the HR Policy and Procedures Manual, which requires the case to be cascaded to the Human Resources Board Committee for determination
Section 4.3.4 of the Manual requires disciplinary cases involving senior employees to be initiated by the Chief Executive and determined by the Human Resources Board Committee. The committee instead comprised an external Labour Relations Advisor with no evidence of Board membership, a Regional Executive, and an observer. The Court held the committee was not properly constituted, noting external participation requires express provision in the disciplinary procedures.
Court's jurisdiction to intervene in a pending disciplinary process
The Court has jurisdiction to intervene, but only in exceptional cases with compelling reasons such as grave injustice and lack of alternative remedies
Drawing on authorities including Finlays Horticulture, JKUAT cases and Aviation & Allied Workers Union, the Court affirmed intervention is exceptional. It found exceptional circumstances here: the employment contract was concluded and performed in Kenya, governed by Kenyan law, and holding the hearing in Cape Town without agreement on applicable law cast doubt on whether statutory protections under the Employment Act would be observed.
Effect of non-compliance with internal disciplinary procedures
Failure by an employer to observe its own disciplinary procedures may amount to repudiation of the contract of employment
Relying on The Post Office v Strange and Gunton v Richmond-upon-Thames LBC, the Court treated internal disciplinary policies as contractual obligations. The Respondent's HR Manual must also be read in light of section 12 of the Employment Act, 2007, which requires employers to have a disciplinary policy. Non-compliance therefore carries legal consequences beyond mere irregularity.
Legal principles established
#- An employer who has a disciplinary policy should scrupulously comply with it; failure to observe own 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
- Where an external expert chairs or participates in a disciplinary hearing, there must be express provision for it in the disciplinary procedures
Court orders
#- 1.Pending the hearing and determination of the Claim, the intended disciplinary hearings against the applicant scheduled for 7 March 2018 or any other date in Cape Town, South Africa are stayed
- 2.For clarity, disciplinary proceedings within Kenya in accordance with the Respondent's HR Policies and Procedures Manual are not interdicted
- 3.Costs in the Cause
- Jurisdiction invoked
- Article 162(2) Constitution / Employment and Labour Relations Court Act (employment dispute); not expressly stated in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Nyagah Njoki v Sanlam Kenya PLC [2018] KEELRC 1959 (KLR)", Case Analysis (2018). Cause (ELRC, Nairobi) – interlocutory application of 23 February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1959/eng@2018-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.