Atandi v African Medical and Research Foundation (AMREF) Flying Doctors (Cause E900 of 2021) [2023] KEELRC 991 (KLR)
The bottom line
#Kenya's Employment Court refused to send an unfair termination claim to arbitration because it also alleged religious discrimination, a constitutional issue only courts can decide.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute should be stayed and referred to arbitration under the arbitration clauses (clauses 20 and 21) of the Service Agreements
The Application was disallowed because the claim transcends the contractual dispute and raises alleged constitutional violations that an arbitrator cannot determine
The court examined the Claim and noted it cites the Applicant for religious discrimination with a separate claim for compensatory damages of USD 100,000, besides statutory compensation for unfair termination. Guided by the Supreme Court's decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd, the judge held that constitutional breaches fall outside an arbitrator's mandate, so referral to arbitration would not enable all issues in dispute to be resolved.
Legal principles established
#- Breaches, violations and infringements of the Constitution do not fall within the jurisdiction of arbitrators
- Where a dispute transcends a contractual dispute into the constitutional sphere, a party is free to access the courts and a court cannot invoke party autonomy to turn a blind eye to alleged constitutional breaches
Court orders
#- 1.The Application dated 14th December 2022 is disallowed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Articles 22 and 41 of the Constitution invoked by the Claimant; jurisdiction of the Employment and Labour Relations Court over the cause; Arbitration Act section 6 invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atandi v African Medical and Research Foundation (AMREF) Flying Doctors (Cause E900 of 2021) [2023] KEELRC 991 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/991/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.