J K v P A T H & Martin Mbau [2018] KEELRC 2286 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 869 OF 2017

J K..........................................CLAIMANT

VERSUS

P A T H.........................1ST RESPONDENT

MARTIN MBALU......2ND RESPONDENT

RULING

1. The claimant herein filed a claim for both unlawful termination of service as well as sexual harassment against the 1st and 2nd respondents on 9th May, 2017.

2. The respondents did not file a response but instead filed a chamber summons seeking orders that the matter be stayed and dispute be referred to arbitration as per the employment contract dated 1st September, 2010.  According to the respondent, under clause 12 of the agreement it was mutually agreed that all claims and disputes whatsoever arising under the agreement would be settled by arbitration.  The respondent therefore contended that by filing the suit the claimant had failed to abide by the dispute resolution mechanism agreed between the parties.

3. In response to the application, the claimant deponed among others that although the employment agreement had arbitration clause providing for settlement of disputes between the parties by way of arbitration, this particular dispute could not be resolved through arbitration.  According to the claimant the claim is both for unlawful termination of employment as well as sexual harassment and as such the claim cannot be settled through arbitration since an arbitrator had no jurisdiction to award general damages which is the remedy to be granted if the claim for sexual harassment is successful.

4. The court has considered submissions by parties as well as the authorities in support and is grateful to them for their research and arguments.  The court however is inclined to follow the well trodden path that where parties reduce their contract in writing the court cannot interfere with the contract save for the usual grounds for vitiating a contract such as fraud, illegality or immorality.

5. The court has stated severally that it does not have the power to rewrite a contract voluntarily entered into by the parties.  The claimant concedes that the employment contract between the parties contained an arbitration clause but contends that the dispute herein is more than just about termination of employment.  It entails sexual harassment for which the only remedy if the claimant is successful is general damages which an arbitrator does not have jurisdiction to award.  The claimant’s counsel has however not cited any authority in support of this argument.

6. The court therefore sees no rationale in this argument and further states that arbitrators are professionals in their area of expertise and would be able to handle the dispute submitted to them in accordance with the dictates of their profession.  This is a dispute over an employment contract hence would most likely be handled by an arbitrator with a legal background who should be capable to assess general damages.

7. In the light of acknowledgement by the claimant that the contract was subject to arbitration clause, the court will grant application dated 31st May, 2017 and hereby direct that the suit herein by stayed and referred to arbitration in accordance with contract between the parties entered into on 1st September, 2010.

8. It is so ordered.

Dated at Nairobi this 16th day of February, 2018

Abuodha J. N.

Judge

Delivered this 16th day of February, 2018

Abuodha J. N.

Judge

In the presence of:-

…………………………………...…. for the Claimant

…………………………………… for the Respondent