Dr. Kennedy Amuhaya Manyonyi v African Medical and Research Foundation [2014] KEELRC 1187 (KLR)

Section 6(1) of the Arbitration Act requires an application for stay and reference to arbitration to be made not later than entry of appearance or other acknowledgment of the claim. The Respondent filed its memorandum of appearance on 17th February 2014, wrote seeking directions on 4th March 2014, and appeared on 19th March 2014 raising only document supply. Entry of appearance was the earliest opportunity to seek reference, and none was made then. The application therefore fails on this ground alone.

Article 159(2)(c) promotes alternative forms of dispute resolution, but Section 15(1) of the Industrial Court Act omits arbitration, listing internal methods, conciliation, mediation and traditional mechanisms. Section 75 of the Labour Relations Act expressly excludes the Arbitration Act from Industrial Court proceedings. The omission was deliberate, consistent with the internal mechanisms and conciliation provided in the Employment Act and the Labour Relations Act. Where the court offers the most direct avenue, no alternative mechanism need be used.

Clause 20 does not state how the arbitration process is initiated or by whom, has no time limits, and does not state who appoints the single arbitrator. Unlike commercial contracts where parties negotiate every clause, the clause was imposed on the employment contract by the employer and not negotiated with the Claimant. Following Justice Ndolo's holding in Cause No. 2469 of 2012, employment contracts are distinct from commercial contracts.

Section 15(1) allows referral to appropriate means of dispute resolution by the court on its own motion or by the parties. The statute refers to 'the parties' rather than one party, meaning party-initiated reference must be consensual. The Respondent sought referral unilaterally without the Claimant's consent, and the vague, non-consensual clause could not supply that consent.