[2017] KEELRC 1836 (KLR)
The court held that the dispute arose from the claimants' contracts of employment, which contained a valid arbitration clause (clause 19.2) requiring referral of disputes to arbitration. The mere averment of violation of labour rights does not automatically transform the dispute into a constitutional matter outside...
Source-derived case information.
- Citation
- [2017] KEELRC 1836 (KLR)
- Parties
- Claimant: Henry Kenozwa Omumia; Claimant: David Nyororo Gatawa; Respondent: Kenya Post Office Savings Bank
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1708 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction and Referral to Arbitration
- Outcome
- preliminary objection upheld; suit stayed pending referral to arbitration
- Judges
- NJ Abuodha
- Legal Topics
- Employment Contracts, Arbitration Clauses, Jurisdiction of Court, Referral to Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Kenozwa Omumia
Claimant
David Nyororo Gatawa
Claimant
Kenya Post Office Savings Bank
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction and Referral to Arbitration
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the dispute in light of the arbitration clause in the employment contract.
- 2 Whether the dispute should be referred to arbitration as per clause 19.2 of the employment contract.
- 3 Whether averments of violation of labour rights elevate the dispute to a constitutional matter outside the scope of the arbitration agreement.
Ratio Decidendi
The court held that the dispute arose from the claimants' contracts of employment, which contained a valid arbitration clause (clause 19.2) requiring referral of disputes to arbitration. The mere averment of violation of labour rights does not automatically transform the dispute into a constitutional matter outside the arbitration agreement. The court found that the claims did not raise constitutional questions of the type that would oust the arbitration clause or invoke the court's exclusive jurisdiction. Consequently, the preliminary objection was upheld, and the suit was stayed pending referral to arbitration as required by the contract.
Court Disposition
preliminary objection upheld; suit stayed pending referral to arbitration
Orders
- The suit is stayed pending referral to arbitration as required by clause 19.2 of the contract of employment.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1708 OF 2016
BETWEEN
1. HENRY KENOZWA OMUMIA 1ST................CLAIMANT/RESPONDENT
2. DAVID NYORORO GATAWA 2ND................. CLAIMANT/RESPONDENT
VS.
KENYA POST OFFICE SAVINGS
BANK ……………………………..…………...RESPONDENT/APPLICANT
RULING
The Respondent herein by a Notice of Preliminary objection filed on 2nd September 2016 averred that the dispute should be referred to arbitration based on clause 19. 2 of the Employment Contract. As a consequence the Court did not have jurisdiction to determine the matter based on section 10 of the Arbitration Act which limits court’s interference with matters governed by the Act.
It is indeed clear from the contract signed by the parties herein that under clause 19. 2 thereof, any dispute, difference or question that shall arise between the parties shall be referred to a single arbitrator or if the parties shall not agree to a single arbitrator, the dispute shall be referred to two arbitrators appointed by each party in accordance with the Arbitration Act. The Court has considered the prayers sought in the claimant’s Memorandum of Claim and is of the view that they are claims grounded on the Claimants contract of employment which requires any dispute arising therefrom to be referred to arbitration. There are averments of violation of Labour rights protected by the Constitution but such averment alone does not make the dispute a constitutional matter. Constitutional questions in employment and Labour relations over which the Court has exclusive jurisdiction usually revolve around claims for discrimination, dehumanizing and degrading treatment and violations envisaged under the Bill of Rights which take place in the context of employer-employee relationship. Every violation or breach of a term of contract of employment can be interpreted as constitutional question but if that were to be the route taken the Court would be inundated by constitutional petitions.
The Court is therefore of the view that the objection was well taken by the respondent and hereby upholds the objection with the consequence that the suit herein is hereby stayed pending referral to arbitration as required by clause 19. 2 of the contract of employment signed by the parties.
It is so ordered.
Dated at Nairobi this 3rd day of February 2017
Abuodha Jorum Nelson
Judge
Delivered this 3rd day of February 2017
In the presence of:
……………………………………………………….. for the Claimant and
………………………………………………………… for the Respondent
Abuodha Jorum Nelson
Judge