[2022] KEELRC 287 (KLR)
The court held that the arbitration clause in the claimant's employment contract is broad enough to cover all disputes arising from the contract, including those relating to termination. The court found that the parties had expressly agreed to refer such disputes to arbitration and had rejected the court's...
Source-derived case information.
- Citation
- [2022] KEELRC 287 (KLR)
- Parties
- Claimant: Patrick Nthenga Kimilu; Respondent: Globe Flight Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E709 of 2021
- Procedural Posture
- Employment Cause / Ruling on Application to Stay Proceedings and Refer to Arbitration
- Outcome
- claim struck out for want of jurisdiction
- Judges
- J Rika
- Legal Topics
- Arbitration Clauses in Employment Contracts, Jurisdiction of Employment Court, Termination of Employment, Unfair Dismissal, Referral to Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Nthenga Kimilu
Claimant
Globe Flight Kenya
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Stay Proceedings and Refer to Arbitration
Legal Issues
- 1 Whether the arbitration clause in the employment contract covers disputes arising from termination of employment.
- 2 Whether the Employment and Labour Relations Court has jurisdiction to hear the claim in light of the arbitration clause.
- 3 Whether the proceedings should be stayed or the claim struck out in favour of arbitration.
Ratio Decidendi
The court held that the arbitration clause in the claimant's employment contract is broad enough to cover all disputes arising from the contract, including those relating to termination. The court found that the parties had expressly agreed to refer such disputes to arbitration and had rejected the court's jurisdiction. As a result, the court determined that it had no jurisdiction to hear the claim and that the appropriate order was to strike out the claim rather than stay proceedings, as the arbitration clause provided that the arbitrator's decision would be final and conclusive. The court emphasized that reference to arbitration is to be made by the parties themselves, not by the court,...
Court Disposition
claim struck out for want of jurisdiction
Orders
- The court has no jurisdiction in this claim.
- The claim is struck out with no order on the costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT
AT NAIROBI
CAUSE NUMBER E709 OF 2021
BETWEEN
PATRICK NTHENGA KIMILU………………………………………………………. CLAIMANT
VERSUS
GLOBE FLIGHT KENYA …………………………………………………………. RESPONDENT
RULING
1. The Claimant filed his Statement of Claim on 24th August 2021. He states that he was employed by the Respondent in 2015 as a Clearing and Forwarding Officer. He was summarily dismissed on 6th May 2020. He holds that dismissal was unfair and unlawful, and seeks compensations and terminal benefits.
2. The Respondent filed an Application dated 30th November 2021, asking the Court to stay the proceedings and refer the matter to Arbitration. The Respondent points to the letter of employment dated 2nd March 2015, which contains an arbitration clause, worded as follows:
‘’ All disputes arising from our appointment vide the contract shall be referred to arbitration before one sole arbitrator to be appointed by the chairman for the time being of the Chartered Institute of Arbitrators and such arbitration shall be conducted under the Arbitration Act 1995. The Arbitrator’s decision shall be final and conclusive.’’
3. The Application is opposed through the Affidavit of the Claimant sworn on 24th January 2022. His main line of response is that while the employment contract indeed contains an arbitration clause, the clause only covers disputes arising from his appointment, and not matters arising from the general course of his employment, including termination.
4. Parties agreed to have the Application considered and determined on the strength of their Affidavits and Submissions, confirmed to have been filed and exchanged, at the last appearance before the Court, on 10th February 2022.
5. The Ruling was scheduled for 6th April 2022, which unfortunately coincided with the Judges’ Annual Conference.
The Court Finds: -
6. There is an arbitration clause in the Claimant’s contract of employment.
7. Contrary to the Claimant’s position, the clause covers all matters including termination.
8. Termination is one of the terms and conditions of employment, contained in the contract.
9. The dispute herein is about termination; whether it was unfair and unlawful; and whether compensation and terminal dues under the contract and the Employment Act, are payable to the Claimant.
10. There is no need for hair-splitting about matters arising out of the letter of appointment, and matters arising from the general course of employment. All matters included in the specific contract of employment are arbitrable.
11. The Parties have positively rejected the jurisdiction of the Court, in favour of Arbitration.
12. The Court cannot stay proceedings where Parties have rejected its jurisdiction. Stay of proceedings pending what? The most appropriate order in the circumstances, is striking out of the Claim. Stay of proceedings presupposes that the Parties could still approach the Court and litigate the dispute at some point, after Arbitration. The clause itself states that the Arbitrator’s decision shall be final and conclusive. Parties have positively rejected the jurisdiction of the Court, agreed that the award of the Arbitrator shall be final and conclusive, and the matter therefore, must be wholly removed from the Court.
13. The clause does not contemplate that reference to Arbitration is done by the Court. The Parties themselves are mandated to make reference. Reference by the Court would be against the arbitration clause, and taint Arbitration with illegality from the outset. The Court has no jurisdiction in making reference on behalf of the Parties.
IT IS ORDERED: -
a. The Court has no jurisdiction in this Claim.
b. The Claim is struck out with no order on the costs.
Dated, signed and released to the Parties electronically, at Chaka, under the Ministry of Health and Judiciary Covid-19 Guidelines, this 22nd day of April 2022.
James Rika
Judge