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ELRCDismissedNot stated in the judgment

Mutai v Chepkorir aka Toto Women Representative & another (Employment and Labour Relations Cause E011 of 2023) [2024] KEELRC 1629 (KLR)

Employment and Labour Relations Court
26 June 2024
4,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to force a dispute into arbitration because the parties had already tried and failed mediation, sending the claim to the Alternative Justice System instead.

What this practically means

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Executive summary

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The Respondents/Applicants filed a Notice of Motion dated 19th September 2023 under section 6 of the Arbitration Act seeking a stay of proceedings and referral of the claim to arbitration. They relied on Clause 9 of the contract of employment dated 3rd October 2022 between the Claimant, formerly County Deputy Manager in the Office of the 1st Respondent (a Member of Parliament), and the 1st Respondent, which provided for arbitration of any dispute. The Claimant opposed, arguing the dispute was purely employment-related under the Employment Act, that the arbitration clause favoured the employer since the seat was Parliament, the panel was appointed by the Chairperson of the Commission and the award was final and binding, that the clause presupposed a subsisting employment relationship, and that the parties had already unsuccessfully attempted Court Annexed Mediation, which the Applicants frustrated. The court, per Lady Justice Hellen Wasilwa, examined all averments and found the issues in the claim were not serious and could be resolved through the Alternative Justice System. Noting that the parties had already tried arbitration and mediation without agreement, the court held that a further referral to arbitration would duplicate roles and cause delay. It declined to stay proceedings in favour of arbitration and instead exercised its discretion under section 15 of the Employment and Labour Relations Court Act to refer the claim to AJS under the guidance of the Deputy Registrar. Costs were awarded in the cause. The application was effectively dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the proceedings should be stayed and the dispute referred to arbitration pursuant to section 6 of the Arbitration Act and Clause 9 of the contract of employment
  2. 2.Whether the arbitration clause is null and void, inoperative or incapable of being performed
  3. 3.Whether the grounds of opposition together with a supporting affidavit constitute a competent response to the application

Key legal issues

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01

Whether the matter should be stayed and referred to arbitration under section 6 of the Arbitration Act

Holding

The application was declined; the court found the dispute suitable for resolution through the Alternative Justice System instead of a second referral to arbitration

Reasoning

The court noted that the parties had already attempted arbitration and mediation without agreement, and that a further referral to arbitration would duplicate processes and delay resolution. Exercising its discretion under section 15 of the Employment and Labour Relations Court Act, which permits the court to adopt other appropriate means of dispute resolution including conciliation, mediation and arbitration, the court opted to refer the claim to AJS under the guidance of the Deputy Registrar.

p. 8
02

Whether the grounds of opposition supported by an affidavit were a competent response

Holding

The court did not strike out the response and proceeded to consider the averments of all parties

Reasoning

The Applicants argued, relying on Faustina Njeru Njoka v Kimunye Tea Factory Limited, that grounds of opposition cannot be supported by an affidavit and that the application therefore stood unopposed. The court did not adopt that reasoning, instead examining all the averments of the parties and reaching a decision on the merits of the referral request.

p. 7

Legal principles established

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  • Where parties have already attempted alternative dispute resolution and failed to agree, a court may in its discretion under section 15 of the Employment and Labour Relations Court Act refer the dispute to the Alternative Justice System rather than compel arbitration

Court orders

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  1. 1.The Notice of Motion dated 19th September 2023 seeking stay of proceedings and referral to arbitration is not granted
  2. 2.The claim is referred to the Alternative Justice System (AJS) guided by the Deputy Registrar, Employment and Labour Relations Court
  3. 3.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Act; Section 15 of the Employment and Labour Relations Court Act (alternative dispute resolution)

Relief refused

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Stay of proceedings and referral of the dispute to arbitration under section 6 of the Arbitration Act

The parties had already attempted arbitration/mediation and failed; referring them again would duplicate roles and cause delay; the court instead exercised its discretion under section 15 of the Employment and Labour Relations Court Act to refer the claim to AJS

p. 9

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The parties having already tried the arbitration and mediation and having not agreed, referring them to arbitration as per the application will be a duplication of roles and also lead to delay in resolving the issue.
p. 9Refusal to refer dispute to arbitration
I will therefore exercise my discretion under section 15 of the Employment and Labour Relations Court Act and refer this claim to AJS guided by the Deputy Registrar Employment and Labour Relations Court. Costs in the cause.
p. 9Final orders - referral to AJS and costs
My take on this is that the issues on this claim are not serious. They can be resolved through the Alternative Justice System (AJS) which this court is obligated to refer parties to under Section 15 of the Employment and Labour Relations Court Act
p. 8Suitability of the dispute for AJS

Issues in the judgment

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minor

The judgment quotes the appointment letter as stating a 5-year contract 'with effect from 3rd October 2027' although the contract is elsewhere dated 3rd October 2022

minor

The quoted letter gives the gross pay inconsistently as Kshs 165,500 described as 'one hundred and sixty-five, five hundred shillings' while the pleadings state Kshs 165,000

minor

The claimant attributes the arbitration process to clauses 10, 11 and 12 of the contract while the respondents cite Clause 9 as the arbitration clause

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, "Mutai v Chepkorir aka Toto Women Representative & another (Employment and Labour Relations Cause E011 of 2023) [2024] KEELRC 1629 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1629/eng@2024-06-26

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