[2020] KEELRC 1870 (KLR)
The court found that the claimant's reason for non-attendance, namely misdiarisation, was insufficient to warrant setting aside the dismissal of her application for review. The court emphasized that alternative dispute resolution, particularly arbitration, is both a constitutional and statutory requirement, and that...
Source-derived case information.
- Citation
- [2020] KEELRC 1870 (KLR)
- Parties
- Claimant: Velma Apondi Odiwuor; Respondent: Twiga Foods Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 31 of 2019
- Procedural Posture
- Employment Cause / Ruling on Application to Set Aside Dismissal of Review Motion
- Outcome
- Application dismissed; parties ordered to proceed to arbitration.
- Judges
- MSA Makhandia
- Legal Topics
- Arbitration Clause, Alternative Dispute Resolution, Dismissal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Velma Apondi Odiwuor
Claimant
Twiga Foods Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Set Aside Dismissal of Review Motion
Legal Issues
- 1 Whether the dismissal of the claimant's application for review should be set aside due to non-attendance attributed to misdiarisation.
- 2 Whether the dispute should proceed to arbitration as per the employment contract's clause 13.
Ratio Decidendi
The court found that the claimant's reason for non-attendance, namely misdiarisation, was insufficient to warrant setting aside the dismissal of her application for review. The court emphasized that alternative dispute resolution, particularly arbitration, is both a constitutional and statutory requirement, and that the parties' contract expressly provided for arbitration as the mechanism for resolving disputes. The court held that had the parties complied with the arbitration clause and the court's earlier referral order, the dispute might have already been resolved. Consequently, the court rejected the claimant's application and reaffirmed the requirement for the parties to proceed to...
Court Disposition
Application dismissed; parties ordered to proceed to arbitration.
Orders
- The claimant's application to set aside the dismissal order is rejected.
- Parties are ordered to proceed in terms of clause 13 of the contract of employment, requiring arbitration.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 31 OF 2019
VELMA APONDI ODIWUOR.........................................................................CLAIMANT
v
TWIGA FOODS LIMITED..........................................................................RESPONDENT
RULING
1. On 10 July 2019, the Court referred the parties herein to arbitration, in terms of clause 13 of the employment contract.
2. The clause provides
Any dispute or claim arising out of or relating to the agreement arising from your acceptance of this offer letter and any subsequent terms of your employment and/or breach thereof shall be determined by a single arbitrator to be appointed by agreement between you and the company or in default of such agreement within 14 (14) days of the notification of such dispute by either party to the other upon application by either party to the chairman of the Chartered Institute of Arbitrators who shall appoint a single arbitrator to determine the dispute….
3. Despite the clear and express order by the Court, the Claimant filed a motion on 2 August 2019 seeking the review of the referral order on the ground that the Court erroneously made a Ruling instead of confirming whether parties had filed/exchanged submissions.
4. The Claimant failed to attend Court on 8 October 2019 to prosecute the motion, and the Court dismissed it prompting the Claimant to file another motion on 14 November 2019 seeking the setting aside of the dismissal order.
5. The reason advanced for failing to attend Court to prosecute the dismissed application was misdiarisation.
6. Alternative dispute resolution is now a constitutional norm.
7. The Employment and Labour Relations Court Act also clothes the Court with the power to stay a dispute and refer it to alternative dispute resolution even at its own motion. Any practitioner who has examined the Constitution and this Court’s establishing Act should be aware of the demand.
8. The contract between the parties herein expressly provided for arbitration. Arbitration is expeditious and cheap for the parties. It is possible that had the parties heeded the Court’s order, this dispute would have been long resolved.
9. Considering all the surrounding circumstances of the dispute herein, the Court rejects as unmerited the application by the Claimant seeking an order setting aside the dismissal of the earlier application.
10. Alternative dispute resolution is not only faster but less costly but also lessens an already burdened judiciary and parties should be quick to accept that route.
11. The Court, in the circumstances, orders the parties to proceed in terms of clause 13 of the contract of employment which requires arbitration.
12. The parties will hereinafter agree on a mention date to update the Court on the progress of the arbitration proceedings.
13. Costs of the application to the Respondent.
Delivered, dated and signed in Nairobi on this 24th day of January 2020.
Radido Stephen
Judge
Appearances
For Claimant Ms. Ochieng instructed by E. A. Ochieng & Co. Advocates
For Respondent Mr. Otieno instructed by COL Advocates
Court Assistant Judy Maina