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ELRCPartially AllowedPetition (Notice of Motion dated 8th November 2020)· [2020] KEELRC 107 (KLR)

Walter Kiplangat Serem v Turkana University College Council [2020] KEELRC 107 (KLR)

Employment and Labour Relations Court
10 December 2020
HWHellen Wasilwa
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated an accountant and halted his employer's disciplinary process because it missed the employer's own six-month deadline and had no investigation report.

What this practically means

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Executive summary

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The petitioner, an accountant at Turkana University College appointed on 17th January 2018, was placed on indefinite compulsory leave by a letter dated 10th February 2020 to pave way for investigations into allegations including corruption, abuse of office, gross insubordination, conflict of interest and financial impropriety. Through a Notice of Motion dated 8th November 2020 under Articles 22, 23, 41 and 159 of the Constitution and the Employment Act, he sought conservatory orders staying the disciplinary process communicated on 4th October 2020, reinstatement, and lifting of the compulsory leave pending determination of his petition. The respondent opposed, arguing the six-month period in the HR Manual could not run without a duly constituted council, that COVID-19 regulations hampered the process, and that the petitioner was guilty of non-disclosure of a prior suit, Eldoret ELRC No. 19 of 2020, which he withdrew. Interlocutory conservatory orders had already been issued staying the disciplinary process. The court found that the HR Manual required disciplinary action to be concluded within six months or the delay explained to the University Council, and no explanation was given. Even after a council was constituted, the process was not concluded, and no investigations or investigation report were in place since February 2020. Holding the entire disciplinary process flawed and prejudicial, the court ordered the petitioner's immediate reinstatement, vacated the compulsory leave letter and all subsequent notices, with the orders in force pending the petition. The respondent was left free to institute a fresh, fair disciplinary process. Costs were reserved to the petition.

Key legal issues

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01

Whether the disciplinary process against the petitioner was flawed

Holding

Yes - the process exceeded the 6-month period prescribed by the HR Manual without explanation, and no investigation report was ever produced.

Reasoning

The HR Manual required disciplinary action to be concluded within six months, failing which the Principal was to report to the University Council explaining the delay. No such explanation was given. The delay was attributed to COVID-19 and the absence of a council, but even after the council was established the process was not concluded. Investigations required under clause D 5.3 had not been done and no investigation report was submitted, rendering the entire process flawed and prejudicial.

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02

Whether the court should interfere with the employer's disciplinary process

Holding

Yes - the court is clothed with power to intervene where the process is unfair or flawed.

Reasoning

While an employer has the right to institute disciplinary processes, the court has the power to ensure fairness. Citing Anne Wambui Kamuiru v Kenya Airways Ltd, the court held that interference is warranted where the process is irregular. Having found the process flawed, the court was entitled and obliged to intervene and redirect it.

p. 3

Legal principles established

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  • Courts will interfere with internal disciplinary processes only where the process is flawed or irregular.

Court orders

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  1. 1.Immediate reinstatement of the petitioner to work
  2. 2.Vacation of the letter dated 10th February 2020 placing the petitioner on indefinite compulsory leave
  3. 3.Vacation of all subsequent letters of Notice to Show Cause and the invitation to a disciplinary hearing
  4. 4.Orders to remain in force pending hearing and determination of the petition
  5. 5.Respondent free to institute fresh, fair disciplinary processes in accordance with the law and HR Manual
  6. 6.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 41, 47, 159
  • Employment Act, 2007Sections 12(3), 43, 45, 49(3) and (4)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 4
  • Universities Act No. 42 of 2012Sections 63, 36

Cases cited (1)

  • Anne Wambui Kamuiru VS Kenya Airways Ltd
    (2010) eKLR
Jurisdiction invoked
Articles 22, 23, 41 and 159 of the Constitution of Kenya, 2010; sections 49(3), (4) and 12(3) of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Walter Kiplangat Serem v Turkana University College Council [2020] KEELRC 107 (KLR)", Case Analysis (2020). Petition (Notice of Motion dated 8th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/107/eng@2020-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.