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ELRCDismissedELRC Cause (application dated 6.4.2021 arising from Cause claiming adoption of FKF Arbitration Tribunal award of 15.11.2016)· [2021] KEELRC 1060 (KLR)

Ivan Minnaert v National Executive Committee AFC Leopards Football Club [2021] KEELRC 1060 (KLR)

Employment and Labour Relations Court
18 August 2021
OMOnesmus N. Makau
2,346 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a decree enforcing a football arbitration award, because the club delayed 19 months and had already partly paid it.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau, Judge) determined the Respondent's Notice of Motion dated 6.4.2021 seeking to set aside an ex parte decree of 1.10.2019 by which the court had adopted as its own decree an arbitral award of the Football Kenya Federation (FKF) Arbitration Tribunal dated 15.11.2016. The award declared unfair termination of the Applicant's contract as Head Coach and awarded USD 24,000 plus Kshs. 200,000 in costs. The Respondent accepted the award, proposed payment by instalments, but paid only about Kshs. 800,000 in part settlement. Its application dated 26.9.2018 to have the award recognized as a decree went unopposed after a preliminary objection on jurisdiction failed, and execution by attachment followed. The Respondent argued the decree was irregular because the award was made under the FKF Constitution and FIFA statutes rather than section 36 of the Arbitration Act, and that failure to attend was a mistake of counsel, relying on James Kanyita Nderitu. The court found the 19-month delay unreasonable, no sufficient cause for default, no triable defence, and prejudice only to the Applicant. The exhaustion argument was rejected as a late change of tack. The application was dismissed as an afterthought, frivolous, vexatious and abusive of court process, with costs to the Applicant.

Key legal issues

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01

Whether the ex parte decree adopting the FKF arbitral award should be set aside

Holding

No - the application is dismissed; delay of 19 months was unreasonable, no sufficient cause for default was given, no triable defence exists, and the Applicant would suffer prejudice

Reasoning

The decree was regular, entered after service of a hearing notice on the Respondent. The Respondent delayed 19 months before applying to set aside, and during that time paid part of the decretal sum, showing awareness of the decree. Counsel filed a preliminary objection but never a response despite service. The award was accepted by the Respondent and partially settled. The court balanced prejudice and found only the Applicant would suffer from setting aside.

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02

Whether the ELRC had jurisdiction to adopt and enforce the FKF Arbitration Tribunal award under sections 36 and 37 of the Arbitration Act

Holding

Yes - the award arose from an employment contract; the court's adoption and enforcement under sections 36 and 37 of the Arbitration Act gives effect to ADR in employment relationships

Reasoning

The dispute emanated from an employment contract, engaging this court's exclusive jurisdiction under section 12 of the ELRC Act and Article 162(2) of the Constitution. The Respondent's exhaustion argument based on the FKF Constitution and FIFA Disciplinary Code was a sudden change of mind after its preliminary objection on a different ground was dismissed. The FKF Tribunal's award was final and unchallenged, and coercive FKF mechanisms could not guarantee settlement; court enforcement encourages ADR.

p. 3

Legal principles established

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  • In deciding whether to set aside regular default judgment the court considers the reason for default, the length of delay, whether a triable defence exists, the respective prejudice and the interest of justice
  • This court has jurisdiction to recognize and enforce a domestic arbitral award accepted by the parties

Court orders

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  1. 1.The Respondent's Notice of Motion dated 6.4.2021 seeking to set aside the ex parte decree of 1.10.2019 is dismissed
  2. 2.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Arbitration Actsections 36, 37
  • Employment and Labour Relations Court Actsection 12
  • Constitution of Kenya, 2010Article 162(2)
  • Civil Procedure RulesOrder 10 rule 11
  • FKF ConstitutionArticles 65, 69(3), 69(4)
  • FIFA Disciplinary CodeArticle 64
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • James Kanyita Nderitu v. Maria Philotas Ghika & Another [2016]eKLR
    [2016]eKLR
  • CMC Aviation Limited & Another v. Anastassios D. Thomas [2017]eKLR
    [2017]eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 read with section 12 of the ELRC Act; sections 36 and 37 of the Arbitration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ivan Minnaert v National Executive Committee AFC Leopards Football Club [2021] KEELRC 1060 (KLR)", Case Analysis (2021). ELRC Cause (application dated 6.4.2021 arising from Cause claiming adoption of FKF Arbitration Tribunal award of 15.11.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1060/eng@2021-08-18

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