Thomas Midiwo Warega Ongoro v Hillcrest Investments Limited [2013] KEELRC 3 (KLR)
The bottom line
#The Industrial Court of Kenya refused to pause an unfair dismissal case, holding that employment disputes must be heard in court, not sent to private arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause in an employment contract can justify a stay of proceedings before the Industrial Court under Section 6 of the Arbitration Act
The application for a stay pending arbitration was refused; the court held it was already seized of the matter and that the interest of justice required the dispute to be adjudicated before the court.
The Applicant relied on clause 16.2 of the employment contract dated 1st September, 2012 and Section 6 of the Arbitration Act, 1995. The Respondent countered that Sections 4, 12 and 15 of the Industrial Court Act confer exclusive jurisdiction over employment disputes on the Industrial Court, and that Section 75 of the Labour Relations Act, 2007 expressly excludes the Arbitration Act from proceedings before the Industrial Court. The court, having considered the competing arguments, declined to refer the dispute to arbitration, preferring that the claim take its normal course, and allowed the Applicant 14 days to respond to the claim.
Whether an arbitration clause agreed after the enactment of the Labour Relations Act, 2007 and the Industrial Court Act, 2011 is effective in employment disputes
The court accepted the Respondent's submission that the arbitration clause was inappropriate and incapable of being given effect because the agreement was concluded after the coming into operation of the Labour Relations Act, 2007 and the Industrial Court Act, 2011.
It was submitted for the Respondent that the contract of employment was concluded on 1st September, 2012, well after the enactment and operation of the Labour Relations Act, 2007 and the Industrial Court Act, 2011. On that basis the arbitration clause was said to be inappropriate and incapable of being put into effect, and the court was under no obligation to refer the dispute to an arbitrator. The court's disposition, permitting the claim to proceed and granting leave to respond, is consistent with this position.
Legal principles established
#- The Industrial Court has exclusive jurisdiction to hear and determine employment and labour disputes, and the Arbitration Act does not apply to proceedings before the Industrial Court.
- Section 75 of the Labour Relations Act excludes the application of the Arbitration Act to proceedings before the Industrial Court.
Court orders
#- 1.The application to stay the proceedings pending arbitration is refused
- 2.The claim will take its normal course in the court
- 3.The Applicant/Respondent is granted leave to respond to the claim within 14 days from the date of the Ruling
- Jurisdiction invoked
- Industrial Court Act, No. 20 of 2011, Sections 4, 12 and 15; Sections 4, 12 and 15 of the Industrial Court Act relied on by the Respondent; Section 6 of the Arbitration Act, 1995 relied on by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Benjamin Oluoch Onoka v Solarnow Services Kenya Ltd [2021] KEELRC 2057 (KLR)[2021] KEELRC 2057 (KLR)3 Mar 2021not followed
Cite this brief
#Cite this brief
Caselaw, "Thomas Midiwo Warega Ongoro v Hillcrest Investments Limited [2013] KEELRC 3 (KLR)", Case Analysis (2013). Chamber Summons Application dated 4th July, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/3/eng@2013-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.