Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2021] KEELRC 2057 (KLR)

Benjamin Oluoch Onoka v Solarnow Services Kenya Ltd [2021] KEELRC 2057 (KLR)

Employment and Labour Relations Court
3 March 2021
759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal decided by Radido Stephen, Judge of the Employment and Labour Relations Court at Kisumu, delivered on 3 March 2021. The Appellant had sued the Respondent before the Chief Magistrates Court for breach of contract and unfair termination. The Respondent successfully applied under an arbitration clause in the employment contract for reference of the dispute to arbitration and a stay of court proceedings, which the Magistrates Court granted on 8 May 2019. The Appellant appealed, arguing that the trial Magistrate erred in holding that the arbitration clause overrode section 75 of the Labour Relations Act, 2007, and in preferring an Act of general application over one of specific application. The Court dismissed the appeal on four grounds. First, clause 18 of the contract bound the parties to a dispute resolution cascade beginning with negotiation, then arbitration, and the Appellant was bound by it. Second, section 75 of the Labour Relations Act does not invalidate agreements to arbitrate, such agreements being within party autonomy; the Court departed from the four authorities cited by the Appellant. Third, alternative dispute resolution mechanisms, encouraged by section 15 of the Employment and Labour Relations Court Act and Article 159 of the Constitution, must be exhausted before litigation. Fourth, the Appellant could not rely on the Employment Act, 2007 on appeal having never raised it before the Magistrates Court. The appeal was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether an arbitration clause in an employment contract is enforceable notwithstanding section 75 of the Labour Relations Act, 2007

Holding

Yes - the arbitration clause binds the parties as an exercise of party autonomy, and section 75 does not invalidate it.

Reasoning

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.

p. 2
02

Whether failure to exhaust alternative dispute resolution avenues (conciliation via the Labour Office) before instituting court proceedings was fatal to the claim

Holding

Yes - the Appellant was obliged to cascade the dispute to the Labour Office for conciliation before commencing court action and did not do so.

Reasoning

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.

p. 2
03

Whether the Appellant could rely on the Employment Act, 2007 on appeal when it had not been raised before the Magistrates Court

Holding

No - the Court noted the Appellant made extensive reference to the Employment Act on appeal without having made such submissions before the trial court.

Reasoning

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.

p. 2

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. 1.The appeal is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Labour Relations Actsection 75
  • Arbitration ActNot specified
  • Employment and Labour Relations Court Actsection 15
  • Constitution of Kenya, 2010Article 159
  • Employment ActNot specified

Cases cited (4)

  • Naqeeb Imtiaz Kara v Medanta Africare Ltd
    (2019) eKLR
  • Charles Nganga Kariuki v Sanlam Insurance Co Ltd
    (2019) eKLR
  • Thomas Midiwo Warega Ongoro v Hillcrest Investments Ltd
    (2014) eKLR
  • Stephen Nyamweya & Ar v Riley Services Ltd
    (2013) eKLR
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.