[2022] KEELRC 12976 (KLR)
The court found that clause 19 of the employment contract expressly required disputes to be resolved through negotiation and, failing that, arbitration, thereby ousting the jurisdiction of the Employment and Labour Relations Court. The claimant did not address or challenge the arbitration clause in her pleadings,...
Source-derived case information.
- Citation
- [2022] KEELRC 12976 (KLR)
- Parties
- Applicant: Serah Kirubi; Respondent: E-Bima Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 48 of 2020
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim declined for want of jurisdiction.
- Judges
- J Rika
- Legal Topics
- Constructive Dismissal, Employment Contracts, Arbitration Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Kirubi
Applicant
E-Bima Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the claim in light of the arbitration clause in the employment contract.
- 2 Whether the claimant is entitled to damages for constructive dismissal and unpaid salary.
Ratio Decidendi
The court found that clause 19 of the employment contract expressly required disputes to be resolved through negotiation and, failing that, arbitration, thereby ousting the jurisdiction of the Employment and Labour Relations Court. The claimant did not address or challenge the arbitration clause in her pleadings, evidence, or submissions. As a result, the court held that it lacked jurisdiction to determine the claim and declined to entertain the matter, directing the claimant to pursue the dispute in the forum agreed upon in the contract.
Court Disposition
Claim declined for want of jurisdiction.
Orders
- The claim is declined for want of jurisdiction.
- No order on the costs.
Full Case Text
Judgment text and source record
25 paragraphs
Kirubi v E-Bima Limited (Cause 48 of 2020) [2022] KEELRC 12976 (KLR) (28 October 2022) (Judgment)
Neutral citation: [2022] KEELRC 12976 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 48 of 2020
J Rika, J
October 28, 2022
Between
Serah Kirubi
Claimant
and
E-Bima Limited
Respondent
Judgment
1. The claimant filed her statement of claim on January 29, 2020.
2. She states that she was employed by the respondent through a contract dated June 17, 2019, as a Technical Accounts Manager, at a monthly gross salary of Kshs 300,000. The contract was for 2 years.
3. She resigned on November 18, 2019, after the respondent failed to pay her salary, which by the time of resignation, had accumulated to Kshs 512,242.
4. She prays for this amount; 12 months’ salary in damages for unfair, unlawful and constructive dismissal at Kshs 3,600,000; statements showing remittance of all statutory deductions; certificate of service; costs; and interest.
5. The respondent did not enter appearance or file a statement of response, and the claim was heard by way of formal proof, on June 14, 2022. The claimant adopted her pleadings, witness statement and documents. The documents include her contract of employment. Hearing closed on the same date, and the claim was last mentioned on July 6, 2022, when the claimant confirmed the filing of her submissions.
The Court Finds:- 6. The claimant said nothing about clause 19 of her contract of employment, in her pleadings, evidence and submissions.
7. The clause binds the parties to resolve disputes arising from their contract through good faith; negotiation; and failing these mechanisms, by arbitration of a single arbitrator, appointed in accordance with the provisions of the Arbitration Act 1995, or Acts amending or replacing the same.
8. The parties ousted the jurisdiction of the court, under clause 19 of their contract. They positively rejected the authority of this court. The claimant ought to have taken her claim, before the forum chosen by the parties.
9. It is therefore the finding of the court that it does not have jurisdiction in this claim.
It is Ordered: -a.The claim is declined for want of jurisdiction.b.No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 28TH DAY OF OCTOBER 2022. James RikaJudge