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ELRCDismissedNot stated in the judgment· [2023] KEELRC 991 (KLR)

Atandi v African Medical and Research Foundation (AMREF) Flying Doctors (Cause E900 of 2021) [2023] KEELRC 991 (KLR)

Employment and Labour Relations Court
28 April 2023
SRSTELLA RUTTO
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to send an unfair termination claim to arbitration because it also alleged religious discrimination, a constitutional issue only courts can decide.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 14th December 2022 seeking a stay of the Claimant's cause and referral of the dispute to arbitration under clauses 20 and 21 of Service Agreements dated 2008 and 2017, which provided for reference of employment disputes to a single arbitrator. The Claimant opposed, arguing that his claim included alleged violations of constitutional rights - discrimination on account of his Seventh Day Adventist faith, which he said was the real reason for termination - and that such issues could only be heard by the Court. The Applicant countered that the claim was framed as a cause, not a petition, and raised only statutory employment issues. Delivering a ruling dated 28th April 2023, Justice Stella Rutto framed the sole issue as whether the suit should be stayed and referred to arbitration. The court found that the Claim expressly alleges religious discrimination and seeks compensatory damages of USD 100,000 for it, in addition to statutory compensation for unfair termination under section 49(1)(c) of the Employment Act. Applying the Supreme Court's binding decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd, which holds that constitutional breaches do not fall within an arbitrator's jurisdiction, the court concluded the claim as framed transcends the arbitration clause. The Application dated 14th December 2022 was disallowed, with costs in the cause.

Key legal issues

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Whether the dispute should be stayed and referred to arbitration under the arbitration clauses (clauses 20 and 21) of the Service Agreements

Holding

The Application was disallowed because the claim transcends the contractual dispute and raises alleged constitutional violations that an arbitrator cannot determine

Reasoning

The court examined the Claim and noted it cites the Applicant for religious discrimination with a separate claim for compensatory damages of USD 100,000, besides statutory compensation for unfair termination. Guided by the Supreme Court's decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd, the judge held that constitutional breaches fall outside an arbitrator's mandate, so referral to arbitration would not enable all issues in dispute to be resolved.

p. 3

Legal principles established

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  • Breaches, violations and infringements of the Constitution do not fall within the jurisdiction of arbitrators
  • Where a dispute transcends a contractual dispute into the constitutional sphere, a party is free to access the courts and a court cannot invoke party autonomy to turn a blind eye to alleged constitutional breaches

Court orders

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  1. 1.The Application dated 14th December 2022 is disallowed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Articles 22 and 41 of the Constitution invoked by the Claimant; jurisdiction of the Employment and Labour Relations Court over the cause; Arbitration Act section 6 invoked by the Applicant

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, "Atandi v African Medical and Research Foundation (AMREF) Flying Doctors (Cause E900 of 2021) [2023] KEELRC 991 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/991/eng@2023-04-28

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