Maina v Kenya Commercial Bank PLC & another (Constitutional Petition E003 of 2023) [2024] KEELRC 2287 (KLR)
The bottom line
#Kenya's Employment Court ruled that an arbitration clause in an employment contract cannot block a worker's constitutional claims in court.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause ousts the court's jurisdiction
No — arbitration agreements do not oust court jurisdiction; proceedings are stayed pending arbitration rather than struck out.
As a matter of public policy, private agreements cannot oust judicial jurisdiction; such attempts are void. Arbitration complements court process under party autonomy, and the law requires a stay of proceedings pending arbitration rather than striking out, preserving the court's supervisory role.
Whether the dispute should be referred to arbitration
No — the petition alleges constitutional violations and joins a non-party to the arbitration agreement.
Section 6 of the Arbitration Act permits referral only of parties to the arbitration agreement; the 2nd Respondent (Central Bank of Kenya) is not a party. Further, per Bia Tosha (SC), constitutional breaches fall outside arbitral jurisdiction, entitling the Petitioner to his day in court. Considerations of unequal bargaining power in employment also weigh against referral.
Timeliness of the application under section 6 of the Arbitration Act
Raised by the Petitioner as a ground of opposition but not determined by the court.
The Petitioner contended the application, filed over two months after entering appearance, violated section 6's requirement that the application be lodged not later than when the party enters appearance. The court did not resolve this issue, dismissing the application on other grounds.
Legal principles established
#- An arbitration clause does not oust the jurisdiction of the court; attempts to do so by private agreement are void as contrary to public policy.
- An arbitration agreement can only be enforced against parties to it; it is void and inoperative against non-parties.
- Where a dispute transcends the contractual into the constitutional sphere, the party is entitled to their day in court despite an arbitration clause.
Court orders
#- 1.The application dated 24th March 2023 seeking stay of proceedings and referral to arbitration is dismissed.
- 2.No order as to costs.
- Jurisdiction invoked
- Constitutional petition alleging violation of fair labour practices; application under section 6 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Kenya Commercial Bank PLC & another (Constitutional Petition E003 of 2023) [2024] KEELRC 2287 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2287/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.