Mwampembwa v Nation Media Group Limited (Miscellaneous Application 50 of 2020) [2021] KEELRC 2426 (KLR)
The bottom line
#Kenya's Employment Court confirmed it will rarely overturn arbitration awards, dismissing a cartoonist's attempt to undo a ruling that he was not an employee.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to entertain an application to set aside an arbitral award.
The ELRC has jurisdiction to determine applications to set aside an arbitral award arising from an employment dispute.
The Court, relying on Article 162(2) of the Constitution, Section 12 of the Employment and Labour Relations Act, 2012 and prior authorities including CMC Aviation Limited v Anastacio D Thomas and United States International University v Attorney General, held that courts with the status of the High Court (including the ELRC) can entertain recourse applications against arbitral awards where the underlying dispute falls within their jurisdiction. The dispute was first lodged in the ELRC as an employment claim, making the ELRC the natural forum for the setting aside application.
Whether the arbitral award violated the public policy of Kenya under Section 35(2)(b)(ii) of the Arbitration Act.
The award did not violate Kenya's public policy; the applicant's attack amounted to an impermissible appeal on points of law disguised as a Section 35 application.
The Court found the applicant was faulting the arbitrator's application of the parol evidence rule and the characterization of the relationship as independent contracting rather than employment. These were issues of mixed fact and law, appealable only under Section 39 of the Arbitration Act with prior written agreement, which did not exist. The Court declined to expand the narrow public policy ground, holding the arbitrator's findings were neither outrageous, immoral, nor illegal so as to offend the conceptions of justice or violate Article 41 of the Constitution.
Remedies available to the applicant.
No remedies were available; the application was dismissed with each party bearing their own costs.
Having found the Court had jurisdiction but that the application lacked merit on the Section 35(2)(b)(ii) ground, the Court found no basis to set aside the award or grant any relief. Considering the long and fruitful relationship between the parties, the Court exercised its discretion on costs to direct each party to bear their own costs rather than awarding costs to the successful respondent.
Legal principles established
#- The Employment and Labour Relations Court has jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Act to entertain applications to set aside an arbitral award arising from an employment-related dispute.
- An application under Section 35(2)(b)(ii) of the Arbitration Act cannot be used as a vehicle to challenge an arbitral award on points of law; such a challenge lies only on appeal under Section 39 where the parties have so agreed in writing.
- A mere error of fact, law, or mixed fact and law by an arbitrator does not amount to a conflict with the public policy of Kenya; public policy grounds for setting aside awards must be narrowly construed.
Court orders
#- 1.The Chamber Summons application to set aside the arbitral award of Professor Wambua Musili delivered on 10th January, 2020 is dismissed in its entirety.
- 2.Each party to meet their own costs of the case.
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act and Sections 35 and 37 of the Arbitration Act, 1995
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwampembwa v Nation Media Group Limited (Miscellaneous Application 50 of 2020) [2021] KEELRC 2426 (KLR)", Case Analysis (2021). Not stated in the judgment (Chamber Summons under Sections 35(1) and 35(2)(b)(ii) and 37 of the Arbitration Act, 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2426/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.