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ELRCDismissedNot stated in the judgment

Kalaine v Mobile Consultations Africa Limited t/a Tibu Health (Cause E449 of 2023) [2025] KEELRC 1640 (KLR)

Employment and Labour Relations Court
30 May 2025
SRStella Rutto
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employee with discrimination claims cannot be forced into arbitration under their employment contract, keeping the case in court.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Chamber Summons dated 5th July 2023 seeking a stay of proceedings and referral of the dispute to arbitration under clauses 11 and 19.2 of the employment contract, supported by an affidavit of its Chief Executive Officer, Jason Carmichael. It argued that a valid and enforceable arbitration agreement existed, that the dispute fell within its scope, and that the parties had ousted the court's jurisdiction. The Claimant opposed, invoking the exceptions in Section 6(1) of the Arbitration Act, noting the clause required prior mediation which was never attempted, and asserting her constitutional right of access to justice. The Claimant did not file valid submissions. Delivering its ruling on 30th May 2025, Justice Stella Rutto framed a single issue: whether the proceedings should be stayed and the dispute referred to arbitration. The court held that the employer-employee relationship is one of unequals and that arbitration clauses in standard-form employment contracts are imposed, atypical, and undermine employee negotiation; arbitral law was principally intended for commercial rather than employment disputes. Critically, the Claimant's claim included allegations of discrimination and declaratory orders for violation of Articles 27(5) and 41(1) and (2) of the Constitution, with a separate claim for Kshs 3,000,000 in compensatory damages. Guided by the Supreme Court decisions in Bia Tosha Distributors and Nyutu Agrovet, the court held that constitutional breaches fall outside arbitral jurisdiction and cannot be shut out in the name of party autonomy. Since an arbitrator could not determine all issues, the application was disallowed with costs in the cause.

Questions the Court framed

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

  1. 1.whether the Court should stay the proceedings herein and refer the dispute to arbitration in accordance with the contract of employment between the Claimant and the Applicant

Key legal issues

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01

Whether the court should stay proceedings and refer the dispute to arbitration under clauses 11 and 19.2 of the employment contract

Holding

The application was disallowed because the dispute includes constitutional discrimination claims beyond arbitral jurisdiction and the arbitration clause arose in a standard-form employment contract between unequals

Reasoning

The court found the employer-employee relationship is one of unequals, with standard-form contracts imposing arbitration clauses without employee input. Arbitral law was principally intended for commercial, not employment, disputes. Further, the Claimant pleaded discrimination and sought declaratory orders for violation of Articles 27(5) and 41(1) and (2); per Bia Tosha, constitutional breaches fall within articles 165(3) and 258 of the Constitution and cannot be adjudicated by an arbitrator. An arbitrator could not determine all issues, so a stay would be inappropriate.

p. 3

Legal principles established

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  • Constitutional breaches cannot be referred to arbitration; a court cannot invoke party autonomy to ignore alleged constitutional violations
  • Arbitration clauses in standard-form employment contracts reflect the unequal bargaining power between employer and employee

Court orders

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  1. 1.The Application dated 5th July 2023 is disallowed
  2. 2.Costs shall be in the cause

The bench

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

SR
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; application under the Arbitration Act Cap 4 of 1995

Relief refused

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Stay of further proceedings in the matter

The dispute transcends the employment termination and includes constitutional claims of discrimination which arbitrators cannot determine

p. 4

Referral of the dispute to arbitration under clauses 11 and 19.2 of the employment contract

Arbitration clauses in standard-form employment contracts reflect unequal bargaining power, and the constitutional claims fall outside arbitral jurisdiction

p. 4

Costs

Costs shall be 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.

Against this background, the Court is inclined to disallow the Application dated 5th July 2023 with an order that costs shall be in the cause.
p. 4Disposition - application for stay and referral to arbitration disallowed
Incorporation of arbitral clauses in employment contract is atypical and underlines the reality of the unequal bargaining power between the employer and the employee. Such clauses are imposed on employees by employers.
p. 3Unequal bargaining power in employment arbitration clauses
Where the dispute, however, transcends the commercial dispute, well into the constitutional sphere, as is the case before us, every person is free to access courts and have their day in court.
p. 4Constitutional claims outside arbitral jurisdiction

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, "Kalaine v Mobile Consultations Africa Limited t/a Tibu Health (Cause E449 of 2023) [2025] KEELRC 1640 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1640/eng@2025-05-30

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