Omwenya v Sichangi Partners & Associates Network LLP (Cause E037 of 2021) [2023] KEELRC 1205 (KLR)
The bottom line
#Kenya's Employment Court ruled that arbitration clauses in employment contracts cannot stop employees from suing directly at the ELRC.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause in an employment contract ousts the ELRC's jurisdiction
It does not; the ELRC's original jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act prevails over arbitration clauses in employment contracts.
The court relied on Wanguhu v Sustainet Group Limited, holding that employment contracts are subject to the ELRC's jurisdiction under Article 162(2)(a) read with Section 12 of the ELRC Act. Unlike commercial disputes governed by Articles of Association, employment disputes fall within the court's original jurisdiction, which clause 9 and Section 6 of the Arbitration Act cannot oust. The court distinguished commercial arbitration contexts from employment relationships.
Whether a stay under section 6 of the Arbitration Act was available
No; the respondent had already entered appearance and filed a Notice of Appointment, so any request for stay came too late, and good-faith efforts at settlement had been attempted and ignored.
The claimant submitted, citing Gourmet Meat Producers, that a stay must be requested no later than filing a Memorandum of Appearance. The respondent had entered appearance on June 3, 2021, submitting to jurisdiction. The claimant also demonstrated good-faith settlement attempts, including a July 15, 2019 email to which the respondent did not respond, satisfying the spirit of clause 9.
The relationship between Article 159 of the Constitution, arbitration, and procedural requirements
Article 159 promotes alternative dispute resolution but does not oust litigants' obligation to comply with procedural imperatives, and courts should not apply undue attention to procedure at the expense of substantive justice.
Citing Raila Odinga v IEBC & 3 Others, the court held that Article 159(2)(d) means courts should not overemphasize procedure at the expense of substantive justice, and Article 159 was never meant to oust procedural compliance. The objective of section 6 of the Arbitration Act is to facilitate, not subvert, constitutional ADR objectives, and informal shop-floor settlement efforts in employment disputes satisfy the ADR spirit.
Legal principles established
#- The ELRC retains original jurisdiction over employment disputes notwithstanding an arbitration clause in an employment contract; such jurisdiction cannot be ousted by clause 9 of the contract or section 6 of the Arbitration Act.
- A preliminary objection must be a pure point of law; a clause requiring evidence is not such.
Court orders
#- 1.The respondent's Notice of Preliminary Objections filed on June 3, 2021 is found without merit and dismissed with costs to the claimant
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omwenya v Sichangi Partners & Associates Network LLP (Cause E037 of 2021) [2023] KEELRC 1205 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1205/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.