[2019] KEELRC 403 (KLR)
The court found that, notwithstanding the presence of an arbitration clause in the employment contract, Kenyan law expressly grants the Employment and Labour Relations Court exclusive jurisdiction over employment and labour disputes. Statutory provisions, specifically Section 12 of the Employment and Labour...
Source-derived case information.
- Citation
- [2019] KEELRC 403 (KLR)
- Parties
- Claimant: Naqeeb Imtiaz Kara; Respondent: Medanta Africare Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 11 of 2019
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Nduma
- Legal Topics
- Arbitration Clauses in Employment Contracts, Jurisdiction of Employment and Labour Relations Court, Exclusion of Arbitration Act, Employment Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naqeeb Imtiaz Kara
Claimant
Medanta Africare Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the existence of an arbitration clause in the employment contract ousts the jurisdiction of the Employment and Labour Relations Court.
- 2 Whether the preliminary objection based on the arbitration clause is merited.
Ratio Decidendi
The court found that, notwithstanding the presence of an arbitration clause in the employment contract, Kenyan law expressly grants the Employment and Labour Relations Court exclusive jurisdiction over employment and labour disputes. Statutory provisions, specifically Section 12 of the Employment and Labour Relations Court Act and Section 87(2) of the Employment Act, vest this court with original and appellate jurisdiction in such matters. Furthermore, Section 75 of the Labour Relations Act explicitly excludes the application of the Arbitration Act to employment and labour disputes before this court. The respondent/objector failed to produce a duly executed agreement that would oust the...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
ELRC CAUSE NO. 11 OF 2019
(Before Hon. Justice Mathews N. Nduma)
NAQEEB IMTIAZ KARA........................................................................................CLAIMANT
VERSUS
MEDANTA AFRICARE LIMITED...................................................................RESPONDENT
RULING
1. The respondent raises a preliminary objection against the suit filed vide a memorandum of claim on 6th February 2019. The suit is for unpaid salaries from December 2017 to November 2018 in the sum of Kshs. 2,400,000; Severance pay in the sum of Kshs. 200,000; One month salary in lieu of notice Kshs. 200,000 and maximum compensation for unlawful and unfair dismissal.
2. The preliminary objection is on the basis that the contract establishing the relationship between the parties herein contain an Arbitration clause. That the parties are bound to resort to Arbitration and not approach court for redress.
3. The court has examined the pleadings before court and is satisfied that the cause of action arises from an Employer and Employee Relationship.
4. Section 12 of the Employment Court Act, 2011 as amended provides that Employment and Labour Relations Court has ‘exclusive original and appellate jurisdiction’ over disputes relating to Employment and Labour relations.
5. The Employment Act, at Section 87(2)also provides that disputes arising out of Employment relationship shall be heard and determined by this court.
6. Further, Section 75 of the Labour Relations Act, 2007 excludes the operation of the Arbitration Act, in resolution of Employment and Labour disputes in Kenya as follows:
“The Arbitration Act (No. 4 of 1995) shall not apply to any proceedings before the industrial court”
7. Furthermore, the objector has not presented to court a duly executed Agreement of employment by both parties that purports to oust the jurisdiction of this court from hearing and determining Employment dispute between the claimant and the respondent.
8. The preliminary objection lacks merit and is dismissed.
Ruling Dated, Signed and delivered this 4th day of November, 2019
Mathews N. Nduma
Judge
Appearances
Ruiru Njoroge and Associates for the Respondent/Objector
M/S Nyanga and Company Advocates for the Claimant/Respondent
Chrispo – Court Clerk