Shikuku v Hamptons Hospital (Cause E002 of 2025) [2025] KEELRC 1704 (KLR)
The bottom line
#The Employment Court in Kakamega struck out an employee's claim because her employment contract required disputes to go to arbitration first.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration agreement in a contract of service ousts the jurisdiction of the ELRC
Yes - the parties' arbitration agreement is binding and the dispute must first be referred to arbitration; the court lacks jurisdiction in the first instance
The court, citing Owners of the Motor Vessel 'Lillian S', held jurisdiction must be determined first. Clause 19 of the contract required disputes to be resolved exclusively through arbitration under the Arbitration Act. The claimant did not deny the clause or allege it was null, void, inoperative or incapable of performance under Section 6. Parties are autonomous in choosing their forum, and Article 159(2)(c) obligates courts to promote ADR. The respondent entered appearance and contemporaneously filed the PO, satisfying the timing in Section 6.
Whether raising the objection by preliminary objection rather than a stay application under Section 6 of the Arbitration Act constituted waiver
No - the PO raised a pure point of law on jurisdiction and was filed contemporaneously with entry of appearance, so no step in the proceedings had been taken and no waiver arose
Relying on Agip (K) Ltd v Kibutu, the claimant argued that filing a defence instead of a stay application waived the right to arbitrate. The court distinguished that case: there the applicant had filed a defence and counterclaim invoking the court's jurisdiction without directions on stay. Here the respondent entered appearance and simultaneously filed the PO, and no further proceedings had been taken; the PO itself signalled the respondent's willingness to refer the dispute to arbitration.
Whether striking out the cause was the appropriate disposal
Yes - the cause was improperly before the court and was struck out; the remedy for challenging any award lies under the Arbitration Act, not by filing afresh in court
The court noted the arbitration clause did not state the award was final, but the Act provides mechanisms for challenging awards. Refiling in court is not such a remedy, and the claimant was bound by the contract she voluntarily signed. The word 'shall' in the clause imposed a mandatory obligation to arbitrate. The cause was therefore struck out with each party bearing own costs.
Legal principles established
#- Where parties have agreed on an arbitration clause, the court's jurisdiction is ousted unless and until the arbitral process is invoked at the appropriate stage, and the court cannot rewrite contracts between consenting parties
Court orders
#- 1.The court lacks jurisdiction to hear and determine the claim as the same should first be subjected to arbitration proceedings as per the contract/agreement between the parties
- 2.The cause is hereby struck out
- 3.Each party shall meet own costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Act (ELRC Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikuku v Hamptons Hospital (Cause E002 of 2025) [2025] KEELRC 1704 (KLR)", Case Analysis (2025). Claim dated 20th December 2024 (memorandum of claim dated 20th December, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1704/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.