Mathew Ekisa Ekirapa v Oku Kaunya & Parliamentary Service Commission Teso North Consittuency [2022] KEELRC 343 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT BUNGOMA

ELR CAUSE NO. 34 OF 2021

MATHEW  EKISA  EKIRAPA.............................................................................................................CLAIMANT

VERSUS

HON. OKU KAUNYA................................................................................................................1ST RESPONDENT

PARLIAMENTARY SERVICE  COMMISSION TESO NORTH CONSITTUENCY.......2ND RESPONDENT

RULING

1. The Ruling is on the Notice of Motion Application dated 8th November 2021  by the 1st  Respondent seeking   the following  orders:-

(i)  Pending the hearing and determination of this application an order of stay of proceedings and/or  further proceedings be and is hereby granted.

(ii) The suit be and is hereby referred to arbitration

(iii) Pending the hearing of the matter before an Arbitration Tribunal and filing  of an arbitral award, all proceedings in this suit be and are hereby  stayed.

(iv) Cost of this application be in the cause.

2. The grounds of the Application are stayed  therein and the Applications is further supported by the Affidavit  of Gerald Omori Kimanga  Advocate for the Applicant.

3. The Claimant is opposed  to the Application and filed grounds of opposition dated 2nd February  2022.

4. The Application was canvassed by way of written submissions. The Applicant’s written submissions are dated 11th February  2022.  The 1st Claimant’s  written submissions are dated  2nd February  2022.

5. The Application is brought  under Article  159 of the Constitution, Section 6 (1) of the Arbitration Act ( Cap  49 Laws of Kenya), Section 59 of the Civil Procedure Act  (Cap 21 Laws of Kenya) and  Order  46 Rule  1 of the Civil Procedure Rules  2010.   The Application seeks to stay the proceedings before court and for the suit to  be referred to arbitration. The Applicant avers that under  Clause  9 of the employment contract between the parties, any claim arising out of the  Contract is to be referred to arbitration in accordance with  the Arbitration Act  (‘GOK1’).  That the 1st Respondent is willing and ready to have the matter heard before the Arbitral Tribunal.  That it is desirable that alternative dispute resolution is given a chance before the parties can resort to formal process . That  arbitration is recognized by the Constitution and the  Civil  Procedure Rules. That  the Claimant  still retains its constitutional right to be heard and any other right  to  access court  and have their case  heard and determined.

6. That  Applicant states it will suffer substantial loss and severe  infringement of fundamental rights  if  the Application herein is not granted. The Applicant  states it has brought  the Application timeously  and  with due promptitude.

7. The Claimant/Respondent  Position.

The Claimant vide grounds  of  opposition dated   2nd  February  2002  states that the Application is misconceived, frivolous, and bad in law, that the Application is in complete breach of the provisions of Section 6 of the Arbitration Act, No. 4 of 1995, that  the Application is an abuse of court process since the Applicant waived his right to refer  the matter to arbitration and that the Application is an abuse of court process.

DETERMINATION

Issues

(a) Whether there is an arbitration clause.

(b) Whether the Application is meritorious.

Whether there is an arbitration Clause.

8. The answer is in the affirmative. The Applicant has annexed the Claimant’s employment contract  ‘GOK-1’. Clause  9 of the contract states as follows:-

“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be referred to arbitration in accordance with the Arbitration Act, No. 4 of 1998”.

The court finds there was an arbitration clause in the contract of employment between the parties.

Whether the Application is meritorious.

9. The Applicant submits  that the forum for settling  the dispute is arbitration as per the contract of employment which is binding between the parties.  The Applicant relies on Section 6 (1) of the Arbitration Act  which provides this:-

(i)“A Court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or files any pleadings or takes any other step in the proceedings, stay the proceedings and refer the parties to arbitration unless it finds:-

(a) That the arbitration agreement is null and moperative or incapable of being performed:

(b) That there is not infact any dispute between the parties with regard to the matters  agreed to be referred to arbitration.  The Applicant submits that Clause 9 of the Employment Contract between the parties covers issues under the dispute before court”.

10. The  Applicant submits that the provisions of Section 26  (1)  (sic) the court opines this is an error and should  read  6 (1)  of the Arbitration Act  are coached in mandatory terms with the only provision being if the subject arbitration agreement is null and void.  That  the Agreement is valid  and effective and it is only fair that the court allows the same to take effect as was  the intention of the parties as per the agreement.  The  Applicant to buttress this position relies on the decision in Wringles Company ( East  Africa  -vs-  Attorney General  & 3 others  ( 2013) eKLR where  the court held, that, ‘courts cannot re write what has already been agreed upon by the parties as set out in the agreement. The parties had agreed that in the case of a dispute arising as to the validity of the agreement, then the same would be subject to arbitration and the court cannot re- write the same”.

The court finds that authority not relevant in the instant application as there is no dispute as to the validity of the Agreement. The Claimant’s case  is that the Applicant waved his right to rely on the arbitration clause by filing defence and proceeding with the hearing before the court  before filing the instant application.

11. The Claimant/Respondent submits that the Application falls for determination under Section 6 (1) of the Arbitration Act. That the Section has been interpreted in a number of cases in our jurisdiction one of them being in case of Charles Njogu lofty  -vs Bedowin Enterprises Ltd   Civil Appeal  NO. 253 of 2003  where the court states as follows:-

“ we respectively agree with these views so that   even if the conditions set out in paragraphs (a)  and (b)  of Section 6 (1)  are satisfied  the court would still be entitled to reject an application for  stay of  proceedings and referral thereof to arbitration if the application to do so is not made at the time of entering appearance or if no appearance is entered at the time of filing any pleadings or at the time of taking any step in the proceedings”.

12. The court is persuaded by the above holding. The Claimant/Respondent to buttress his opposition to the Application further relies on decision in the case of Diocese of Marsabit Registered Trustee  -vs- Techno trade Pavilion Ltd  ( 2014) eKLRwhere  court stated “ I  should add that the requirement of Section 6 (1) of the Arbitration Act is not a mere technicality which can be diminished by Article  159 (2)  (d) of the Constitution as claimed by the Applicant. It is a substantial legal matter which aims at promoting  and attaining officious resolution of disputes through arbitration by providing for stay of proceedings but only where a party desirous of taking  advantage of an arbitration clause in a contract has applied  promptly for stay of proceedings and made a request to have the matter  referred to arbitration”.(emphasis given)

The court further stated :-

“ needless to state that arbitration falls in the alternative forms of dispute  resolutions  which  under Article  159 (2) (c)  of the Constitution should be promoted by courts except  in so far as they are not inconsistent with any written law. By these provisions of the Constitution and the fact that the process of arbitration is largely consensual, a party who fails to adhere   to the law  such as section 6 (1) of the Arbitration Act forfeits his right to apply for and have the proceedings stayed or matter referred  to arbitration. And for all purposes, such  is an indolent party  who should not be allowed to circumvent the desire and right of the other party from availing itself or the judicial process of the court. With that understanding, a delay of fourteen ( I4) days becomes  unreasonable in the eyes of the law   and the circumstance of the case.  On that ground alone the application herein having been made fourteen days after the filing of appearance, should fail.”

13. The Applicant in the instant case simply avers it makes this application timeously without further details. The Applicant attempts to explain the noncompliance with Section 6 (1) of the Arbitration Act  in the submissions a position which is not tenable under the law as submissions are not pleadings. The 1st Respondent’s response dated 18th December 2020 to the memorandum of claim does not raise the issue of  existence of Arbitration Clause. The instant Application filed on 11th February 2022 is first time the issue of arbitration is raised in pleading before the court.   The Application was filed after the closure of the Claimant’s case. The court finds the instant application to be in breach of Section 6 (1) of the Arbitration Act.  The  Court upholds the decision of the court in Diocese of Marsabit Registered Trustees  -vs- Technotrade pavilion Ltd  ( 2014)  eKLR(supra)  to effect that by failing  to adhere to the law under Section 6 (1) of the Arbitration Act, the Applicant forfeited his right to apply for and have the proceedings stayed and matter referred to arbitration.  That for all purposes, such an indolent party   like the Applicant should not be allowed to circumvent the desire  and right of the other party from availing itself of the judicial  process of the court.

14. The instant  Application  filed  after closure of the hearing of the  Claimant’s  case is brought after unreasonable delay in the eyes of the law and  in breach of Section 6 (1) of the Arbitration Act. The Application fails.

CONCLUSION

The Application dated  8th November  2021  is dismissed  with costs to the Claimant /Respondent .

It is so ordered.

DATED, SIGNED  AND DELIVERED THIS 24TH MARCH, 2022.

J. W. KELI

JUDGE.

IN THE PRESENCE  OF:-

COURT ASSISTANT: BRENDA WESONGA

CLAIMANT:    IN PERSON

1ST RESPONDENT: MS KIAGE

2ND RESPONDENT :  ANGAYA