Halima Gababa Abdulahi v Lee Kinyanjui & another [2019] KEELRC 1777 (KLR)
The bottom line
#A Kenyan court refused to send an unfair dismissal case to arbitration because the contract's arbitration clause was unclear and the worker raised constitutional rights claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the arbitration clause in the employment contract mandates reference to arbitration
No. Clause 10.0.2 refers unresolved disputes to arbitration, but the clause it cross-references (9.0.1) does not exist, and clause 9 instead provides for interpretation under Kenyan law. The agreement is ambiguous and the parties have not clearly agreed to refer this dispute to arbitration.
The court examined clauses 9, 10.0.1 and 10.0.2 of the employment contract. Clause 10.0.2 refers disputes not resolved in '9.0.1' to arbitration, but clause 9.0.1 does not exist; clause 9 merely provides that the contract is construed under Kenyan law. Under section 6(1) of the Arbitration Act, the dispute must be the subject of an arbitration agreement. Because of this ambiguity, the matter cannot be removed from the court's jurisdiction.
Whether constitutional claims of rights violations can be referred to arbitration
No. The petition is premised on alleged violations of the Bill of Rights, and under Article 23 of the Constitution only the court can grant redress for such violations.
The petitioner challenged the entire process leading to termination of employment and its outcome as unconstitutional. The court held such questions cannot be addressed by arbitration; the petition is premised on alleged violation of numerous constitutional articles and the interim relief sought is conservatory in nature, preserving the petitioner's position pending determination.
Whether the ELRC retains jurisdiction notwithstanding the arbitration agreement
Yes. The court has original jurisdiction over employment and labour relations matters under Article 162(2) and section 12 of the ELRC Act, and under section 7 of the Arbitration Act it can issue interim orders regardless of an arbitration clause.
Relying on Samuel Kamau Macharia, the court noted jurisdiction flows from the Constitution or statute. The ELRC is conferred with jurisdiction over employment disputes. Section 15 of the ELRC Act allows referral to ADR but does not compel it, especially where termination has occurred and rights violations are alleged. Section 7 of the Arbitration Act empowers the court to issue interim protective measures regardless of the presence of an arbitration clause.
Legal principles established
#- Referral to arbitration requires consent of the parties; an arbitration agreement that is ambiguous or references a non-existent clause may be inoperative
- Where employment has already terminated and the employee raises constitutional questions, referring the matter back to the shop floor or arbitration would only delay justice
Court orders
#- 1.The respondents' application dated 22nd November 2018 seeking stay of proceedings and reference to arbitration is declined
- 2.Each party shall bear their own costs
- 3.The respondents shall address the petition and the court shall hear the parties on their merits
- Jurisdiction invoked
- Article 162(2) of the Constitution read together with section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Halima Gababa Abdulahi v Lee Kinyanjui & another [2019] KEELRC 1777 (KLR)", Case Analysis (2019). Petition and Notice of Motion filed 20th November 2018 (ELRC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1777/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.