BY SAM ALFAN.
Kenya Commercial Bank (KCB) wants a case filed by its former group company secretary Joseph Kamau Kania handled through arbitration.
Kania sued the lender for illegal sacking and has sought his reinstatement or compensation.
But in the latest application, the lender says the matter should be handled by arbitration in accordance with Clause 22 of the contract, which the parties signed in January 2016.
Through lawyer Bonnie Okumu, KCB also pleaded with the court to suspend all other proceedings touching on the matter pending th determination of the application.
“”This Court has an obligation to promote alternative forms of dispute resolution pursuant to Article 159 (2) (c) of the Constitution of Kenya; g. In the premises, it is in the interest of justice, fairness and equity that the orders sought herein be granted as prayed,” Okumu said in an affidavit filed in court.
The Bank further said Kania’s entire claim is premised on the Contract of Service and by dint of Clause 22 of the Employment Contract, the parties voluntarily elected to oust the jurisdiction of the court and refer any and all disputes to arbitration;
“The Petitioner ( Kania) has instituted these proceedings in contravention of Clause 22 of the Employment Contract without any legal basis and by virtue of the Arbitration Agreement between the parties, this Court had no jurisdiction to hear and determine this Petition; e. The Arbitration Agreement is capable of being performed,” says Okumu.
The Bank claims that in contravention and blatant disregard of Clause 22 of the Contract lawyer Kania has improperly, irregularly and prematurely instituted the instant proceedings before Court.
The Bank further adds that it is common ground that the parties are contractually bound to refer the matter to Arbitration and Court is enjoined to hold the parties to the contractual terms agreed upon. 8. Clause 22 of the Employment Contract is perfectly capable of being performed and the KCB is able, ready and willing to ventilate any and all issues arising from the Contract through Arbitration.
Okumu also said Kania’s petition and supporting affidavit are fatally defective, unmaintainable and bad in law from the onset.
“Accordingly, the Petition cannot be sustained against the 1st Respondent on account that this Honourable Court respectfully lacks the requisite jurisdiction to hear and determine the matter in view of the Arbitration Agreement,” he said.
The bank says by hearing the case, the High Court would be re-writing the contract between KCB and Kania and would also amount to an outright infringement of the parties’ freedom of contract and privity to contract.
” In the premises, it is in the interest of justice, fairness and equity that the orders sought herein be granted as prayed,” says the Bank.
