Muchura v Safari Collection Limited (Petition E216 of 2022) [2023] KEELRC 1476 (KLR)
The bottom line
#A Kenyan employment contract's arbitration clause cannot force constitutional rights claims into arbitration; the Employment and Labour Relations Court kept the case.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause in an employment contract compels referral of a petition alleging constitutional rights violations
No. Claims alleging violation of rights in the Bill of Rights render the arbitration agreement inoperative at least in respect of those constitutional issues, and fall within the court's jurisdiction under article 165(2)(b) as exercised by the ELRC in employment disputes.
The court, following the Supreme Court in Bia Tosha, held that arbitrators' jurisdiction is founded on party autonomy and cannot extend to breaches of the Constitution. Rights such as freedom of expression and freedom from torture and degrading treatment under articles 29 and 33 can only be enforced by the High Court or courts of equal status; where such violations arise in an employment relationship, the ELRC is empowered. The arbitration clause is inoperative for these claims.
Whether the entire dispute should be stayed and referred to arbitration notwithstanding the constitutional claims
No. Isolating and pigeonholing constitutional claims from contractual claims would be highly undesirable and inconvenient to the efficient administration of justice; as all issues arise from one transaction, the court should determine all of them.
While the Respondent may insist on arbitrating issues unrelated to constitutional violations, separating the claims would be undesirable and inconvenient. Since all issues arise from a single employment transaction and the court has jurisdiction over the constitutional questions, judicial efficiency favours the court determining the whole dispute.
The effect of conflicting superior-court authority (Gulf Energy v Rubis versus Bia Tosha)
The court is bound by the Supreme Court's decision in Bia Tosha under article 163(7) of the Constitution, and relied on it in preference to the High Court's Gulf Energy decision.
The judge noted that Gulf Energy appears to suggest disputes raising constitutional questions must go to arbitration, a view inconsistent with the Supreme Court in Bia Tosha. Under article 163(7), Supreme Court pronouncements bind all courts, so the Bia Tosha position prevails. The Court of Appeal decision in Kenya Breweries v Bia Tosha relied on by the Respondent had been set aside by the Supreme Court.
Legal principles established
#- An arbitration agreement purporting to refer alleged Bill of Rights violations to arbitration is rendered inoperative to the extent of those constitutional claims, which fall within the exclusive jurisdiction of the High Court and courts of equal status under article 165(2)(b) of the Constitution
- Article 159(1)(c) of the Constitution (fostering ADR) does not dilute the exclusive original jurisdiction to adjudicate on Bill of Rights disputes
- Where issues arise from one transaction and the court has jurisdiction over the constitutional issues, it is sensible that the court determines all of them rather than splitting claims between court and arbitration
Court orders
#- 1.The application dated December 30, 2022 is declined
- 2.Costs of the application shall abide the outcome of the case
- Jurisdiction invoked
- Article 165(2)(b) of the Constitution (enforcement of the Bill of Rights) as exercised by the Employment and Labour Relations Court where the violation arises in an employment context; Article 162(2) ELRC jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchura v Safari Collection Limited (Petition E216 of 2022) [2023] KEELRC 1476 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1476/eng@2023-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.