Benjamin Oluoch Onoka v Solarnow Services Kenya Ltd [2021] KEELRC 2057 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause in an employment contract is enforceable notwithstanding section 75 of the Labour Relations Act, 2007
Yes - the arbitration clause binds the parties as an exercise of party autonomy, and section 75 does not invalidate it.
The Court held that clause 18 of the contract set out a dispute resolution mechanism starting with mutual negotiations, then arbitration, and only thereafter recourse to the Labour Office or the Court. Because the contract was mutual, the Appellant was bound by its dispute resolution terms. Section 75 of the Labour Relations Act does not invalidate agreements to arbitrate as between the parties, since such agreement falls within their party autonomy. The Court expressly departed from the authorities cited by the Appellant on this point.
Whether failure to exhaust alternative dispute resolution avenues (conciliation via the Labour Office) before instituting court proceedings was fatal to the claim
Yes - the Appellant was obliged to cascade the dispute to the Labour Office for conciliation before commencing court action and did not do so.
The Court reasoned that even if its conclusion on the arbitration clause were wrong, the contract's dispute resolution mechanism required referral to the Labour Office or the Court only after arbitration had failed. The Appellant, as the aggrieved party, had not attempted conciliation before commencing court action. The Court noted that section 15 of the Employment and Labour Relations Court Act and Article 159 of the Constitution encourage alternative dispute resolution, making exhaustion of agreed ADR mechanisms a settled requirement.
Whether the Appellant could rely on the Employment Act, 2007 on appeal when it had not been raised before the Magistrates Court
No - the Court noted the Appellant made extensive reference to the Employment Act on appeal without having made such submissions before the trial court.
The Court observed that although the Appellant made extensive reference to the Employment Act, 2007 before the High Court on appeal, no such submissions or reference had been made before the Magistrates Court. This was flagged as a final reason why the appeal lacked merit, indicating the Court would not entertain arguments founded on a statute not raised at first instance.
Legal principles established
#- Section 75 of the Labour Relations Act, 2007 does not invalidate agreements between parties to refer their disputes to arbitration, as such agreements are an exercise of party autonomy.
- Where alternative dispute resolution mechanisms have been provided for or agreed, they must be exhausted before moving to Court.
- A party who has opted to resolve a dispute under the Arbitration Act may not have recourse to the Court after a determination by an Arbitrator; the Labour Relations Act largely applies to trade disputes and not employment disputes.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- On appeal from
- Chief Magistrates Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court in an employment dispute (Employment and Labour Relations Court Act); no specific provision quoted in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Oluoch Onoka v Solarnow Services Kenya Ltd [2021] KEELRC 2057 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2057/eng@2021-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.