Orwa v Autocheck Ltd Also t/a Cheki (K) Ltd also t/a Get Gari (Gari Angalia) (Petition E155 of 2023) [2024] KEELRC 1939 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the constitutional petition met the threshold for constitutional adjudication
The preliminary objection succeeded; no constitutional violations were pleaded with particularity and the remedies were available in an ordinary employment claim
The Court found that although the petition invoked violations of the Bill of Rights, the underlying facts disclosed only breach of contract and unfair termination of employment. The reliefs sought were available under an ordinary memorandum of claim under the Employment Act and the Employment and Labour Relations Court Act and the Court's Procedure Rules. The petition was therefore an avoidance of the proper statutory mechanism and had to be struck out.
Whether the arbitration clause ousted the Court's jurisdiction
That limb of the preliminary objection collapsed; an arbitration clause warrants a stay of proceedings, not striking out
The respondent argued that section 10 of the Arbitration Act and the arbitration clause in the employment agreement deprived the Court of jurisdiction. The Court held that the correct remedy would be a stay and referral for conciliation, mediation or arbitration under section 15(4) of the Employment and Labour Relations Court Act, not striking out the petition. That limb of the objection therefore failed.
Whether the dispute required viva voce evidence
Yes; the issues would require testing of evidence through witness testimony, which affidavit-based prosecution of the petition could not achieve
The Court observed that the disputed issues would require testing of evidence through taking of witness testimony. Prosecuting the matter as a petition based on affidavits would not achieve justice for the parties in the absence of a viva voce hearing, reinforcing the conclusion that the ordinary claim procedure was the appropriate avenue.
Legal principles established
#- A petition alleging constitutional violations must plead particularised violations; where the facts disclose a mere breach of contract and unfair termination, the claimant must pursue ordinary employment remedies and the petition is trapped by the avoidance principle
- An arbitration clause in an employment agreement is a basis to stay proceedings, not to strike them out, per section 15(4) of the Employment and Labour Relations Court Act
Court orders
#- 1.The preliminary objection is upheld
- 2.The petition is struck out with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orwa v Autocheck Ltd Also t/a Cheki (K) Ltd also t/a Get Gari (Gari Angalia) (Petition E155 of 2023) [2024] KEELRC 1939 (KLR)", Case Analysis (2024). Petition dated 04.08.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1939/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.