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ELRCDismissednot stated in extract· [2024] KEELRC 1460 (KLR)

Nyakwara v Trivitron Healthcare Africa [Kenya] Limited (Cause E493 of 2023) [2024] KEELRC 1460 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
907 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court threw out an employee's claim because his contract required disputes to go to mediation and arbitration, not court.

What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 27th July 2023, contending that clause 18 of the parties' contract of employment dated 3rd December 2020 deprived the Court of jurisdiction. Clause 18 required disputes to be resolved first by party-initiated mediation, and failing full settlement, by arbitration of a single arbitrator appointed through the Kenya Branch of the Chartered Institute of Arbitrators, with awards subject to the Arbitration Act 1995. The Claimant opposed, arguing his claim concerned violation of constitutional rights under Article 41; that Section 6 of the Arbitration Act permits only a stay and referral, not dismissal; and that his inability to finance arbitration meant declining the claim would breach his right of access to justice. The Court, per James Rika, Judge, upheld the objection. It found a valid alternative dispute resolution clause embracing mediation and arbitration, leaving no room for adjudication by the Court. Relying on its earlier decision in Paul Chemunda Nalyanya v. I. Messina Kenya Limited [2015] e-KLR, the Court held it could not stay proceedings and refer the parties to mediation or arbitration, since referral is the parties' prerogative and the Court neither presently has nor is contemplated to acquire jurisdiction under the contract. The Court also held there was no violation of the Claimant's access to justice, as the parties' chosen mechanisms are themselves avenues of access to justice. The Claim was declined for want of jurisdiction, with no order on costs.

Key legal issues

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01

Effect of valid mediation and arbitration clause on the Court's jurisdiction

Holding

The clause excludes the Court's jurisdiction entirely; the Court cannot stay and refer.

Reasoning

The Court found clause 18 provided for party-initiated mediation followed by arbitration, leaving no room for Court involvement. Referral by the Court would contravene the parties' agreement. Referral is the parties' prerogative; the Court lacked present and contemplated jurisdiction.

p. 2
02

Access to justice objection

Holding

No violation; the parties' chosen ADR mechanisms are themselves avenues of access to justice.

Reasoning

The Claimant argued lack of funds for arbitration. The Court held he ought to have raised contract authorship and cost concerns when executing the contract, and that the chosen mechanisms are avenues for exercising access to justice.

p. 3

Legal principles established

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  • Where parties to an employment contract validly elect mediation and arbitration, they positively reject the jurisdiction of the Court and the Court cannot stay proceedings and refer the matter to ADR absent jurisdiction.

Court orders

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  1. 1.The Claim is declined for want of jurisdiction
  2. 2.No order on the costs
Jurisdiction invoked
Preliminary objection to jurisdiction under clause 18 of the parties' employment contract and the Arbitration Act 1995; no constitutional/statutory grant invoked in extract

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, "Nyakwara v Trivitron Healthcare Africa [Kenya] Limited (Cause E493 of 2023) [2024] KEELRC 1460 (KLR)", Case Analysis (2024). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1460/eng@2024-06-14

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