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Court of AppealDismissedCivil Appeal No. 109 of 2018

Dock Workers Union Ltd v Messina Kenya Ltd [2019] KECA 915 (KLR)

Court of Appeal of Kenya
7 March 2019
AVAlnashir VisramWKW. KaranjaDMD. Musinga
2,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that arbitration clauses in employment contracts survive dismissal, so workers must arbitrate contract claims rather than file constitutional petitions.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Musinga, JJ.A) dismissed an appeal by the Dock Workers Union against a decision of the Employment and Labour Relations Court (Rika, J) striking out its constitutional petition on behalf of former employees of Messina Kenya Limited. The ELRC had held that it lacked jurisdiction because the grievants' contracts of employment contained an arbitration clause requiring disputes to be referred to arbitration in the first instance, and that the dispute over terminal dues and union dues was not a constitutional dispute. The Court of Appeal affirmed both findings. It held that parties are free to embed arbitration agreements in employment contracts and cannot later denounce them; that the arbitration clause survives termination of employment, since otherwise parties could avoid their contractual obligations merely by ending the relationship; and that no provision of the Employment Act confers exclusive jurisdiction on the ELRC or excludes arbitration from labour disputes. On the constitutional question, the Court held that although labour rights have underpinnings in the Constitution, a claim founded on a contract of employment remains a labour dispute, and where an alternative statutory or contractual remedy exists it should be pursued rather than a constitutional petition; a mere allegation in pleadings does not convert a matter into a constitutional issue. The appeal was dismissed with no order as to costs. The judgment binds lower courts to respect valid arbitration clauses in employment contracts and to insist on exhaustion of alternative remedies before constitutional petitions are entertained.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court had jurisdiction to entertain the petition notwithstanding the arbitration clause in the grievants' contracts of employment
  2. 2.Whether the employment contract, including the arbitration clause, ceased to have effect upon termination of the grievants' employment
  3. 3.Whether the dispute was a constitutional dispute relating to enforcement of fundamental rights that could be ventilated by way of a constitutional petition

Key legal issues

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01

Whether an arbitration clause in an employment contract survives termination of the employment

Holding

The arbitration clause survives termination; adopting the contrary argument would lead to an absurdity, as the contract governs the parties' rights and liabilities including claims for terminal and union dues.

Reasoning

The Court held that contracts define the rights and liabilities of the parties and that a party cannot call the contract in aid only when it pleases them. The claim for terminal dues and union dues arose under the very contract containing the arbitration clause. Freedom of contract allows parties to choose arbitration as their dispute resolution mechanism, and the Constitution itself encourages alternative dispute resolution.

p. 3
02

Whether a labour dispute can be pursued as a constitutional petition

Holding

A claim founded on a contract of employment is a labour dispute, not a constitutional dispute; the constitutional petition was improperly invoked to circumvent the arbitration agreement.

Reasoning

While all rights have underpinnings in the Constitution, not every claim traceable to a fundamental right becomes a constitutional issue. The Court endorsed the principle that where an alternative statutory remedy exists, it should be pursued first, and that the mere allegation in pleadings does not clothe a matter with constitutional attributes.

p. 3
03

Whether arbitration is inapplicable to labour disputes

Holding

Nothing in the Employment Act or other cited legislation makes arbitration inapplicable to labour disputes or gives the ELRC exclusive jurisdiction over employment grievances to the exclusion of arbitration.

Reasoning

The Court found no provision in the Employment Act indicating that employment grievances are under the exclusive jurisdiction of the ELRC, and no authority was cited for the proposition that arbitration does not apply to labour disputes. Parties are free to choose the legal regime governing their contracts.

p. 2

Legal principles established

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  • A valid arbitration agreement in a contract of employment binds the parties even after termination of the employment; parties cannot denounce it in order to litigate in court.
  • Not every dispute with a constitutional underpinning is a constitutional dispute; where an alternative statutory or contractual remedy exists, it should be pursued rather than a constitutional petition.
  • Jurisdiction, once raised, must be determined at the earliest opportunity.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
DM
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Mombasa ELRC No. 6 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court pursuant to the Constitution of Kenya and the Employment and Labour Relations Act, 2014

Relief refused

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The appellant's appeal seeking to overturn the striking out of the constitutional petition

The claim was a labour dispute that should have been referred to arbitration under the parties' agreement, not litigated as a constitutional petition

p. 4

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find no merit in this appeal and dismiss it with no order as to costs.
p. 4Final orders - dismissal of the appeal
The parties entered into the said agreement freely and opted to oust other means of dispute resolution mechanisms other than arbitration. They cannot turn around and denounce the arbitration agreement.
p. 3Binding effect of arbitration agreements in employment contracts
Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.
p. 3Exhaustion of alternative remedies before constitutional petitions
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 2Primacy of jurisdiction, as restated from the Joey case
it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application
p. 3Constitutional petitions cannot be sustained by mere allegation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dock Workers Union Ltd v Messina Kenya Ltd [2019] KECA 915 (KLR)", Case Analysis (2019). Civil Appeal No. 109 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/915/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.