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ELRCDismissedNot stated in the judgment (Cause number omitted from the text provided)· [2021] KEELRC 1356 (KLR)

Phelix Odiwour Kodhe v Mediamax Network Limited [2021] KEELRC 1356 (KLR)

Employment and Labour Relations Court
3 June 2021
NMNzioki wa Makau
1,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to reinstate a dismissed claim, ruling that an arbitration clause in the contract took the dispute out of court entirely.

What this practically means

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Executive summary

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The Claimant filed a Notice of Motion dated 16th March 2021 seeking to set aside and/or vary an ex parte order of 16th March 2021 dismissing his suit for want of prosecution and non-attendance, and to reinstate the statement of claim for hearing. The Claimant's advocate, Doreen Wamanga, deponed that she arrived at the Milimani courts in good time but, following a notice at Court 4 directing parties to a tent in the parking yard, waited there; she only learned from the Respondent's advocate that proceedings had been moved to Court 1, where the suit had been dismissed with costs. The Respondent, through its Human Resource Business Partner Robert Murigi, opposed, contending the dismissal met Rule 22 of the ELRC (Procedure) Rules 2016, that the reasons for non-attendance were unsatisfactory, and that the suit raised no triable issues because the Claimant was engaged as an independent contractor under an agreement whose clause 6 required disputes to be referred to arbitration, ousting the court's jurisdiction. The Claimant relied on authorities urging that mistakes of counsel should not be visited on clients and on the non-derogable right to a fair hearing under Article 25(c). Justice Nzioki wa Makau found no indication that the Claimant was in court ready to proceed, noted the Respondent's counsel had located the correct court, and held that the arbitration clause ousted the court's jurisdiction. The application was dismissed, with parties left to pursue arbitration and each bearing their own costs.

Key legal issues

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01

Whether the ex parte dismissal of the suit for want of prosecution should be set aside

Holding

The application for setting aside was refused because the Claimant was not shown to have been ready to proceed and the claim was barred by the arbitration clause

Reasoning

The court found that the Claimant's counsel was absent while the Respondent's counsel managed to locate the correct courtroom despite the court's arrangements for ushers and seating. The affidavit nowhere indicated the Claimant was in court ready to proceed. Independently, clause 6 of the agreement required disputes to be referred to arbitration, ousting the court's jurisdiction, so reinstatement would be futile.

p. 2
02

Whether the arbitration clause in the Independent Contractor Agreement deprived the court of jurisdiction

Holding

Yes - the court held the jurisdiction of the court is ousted and directed the parties to arbitration

Reasoning

Clause 6 of the Independent Contractor Agreement required disputes between the parties to be referred to arbitration. The court accepted the Respondent's submission that its obligation is to enforce, not rewrite, contracts, and that it would be a grave mistake to crowd the court's diary with a matter where jurisdiction is expressly ousted. Parties were accordingly left at liberty to pursue arbitration.

p. 2

Legal principles established

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  • The right to a fair hearing is non-derogable under the Constitution of Kenya
  • An agreement to refer disputes to arbitration ousts the court's jurisdiction over the dispute

Court orders

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  1. 1.The Notice of Motion dated 16th March 2021 is dismissed
  2. 2.The suit shall not be reinstated; parties are at liberty to pursue arbitration
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25(c)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 22
  • Employment ActNot specified
  • Arbitration ActNot specified

Cases cited (5)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Burhani Decorators & Contractors v Morning Foods Ltd & Another
    [2014] eKLR
  • Belinda Murai & Others v Amoi Wainaina
    [1978] LLR 2782 (CA)
  • Philip Chemowolo & Another v Augustine Kubede
    [1982-88] KAR 103
  • Gladys Boss Shollei v Judicial Service Commission & Another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 22 (suit dismissed for want of prosecution; application to set aside ex parte dismissal order)

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, "Phelix Odiwour Kodhe v Mediamax Network Limited [2021] KEELRC 1356 (KLR)", Case Analysis (2021). Not stated in the judgment (Cause number omitted from the text provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1356/eng@2021-06-03

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