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ELRCDismissedEmployment and Labour Relations Cause E1144 of 2025

Michaux v Chavda Educational Holdings Limited

Employment and Labour Relations Court
22 September 2026
HWHellen Wasilwa
5,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that ignored its own contract's negotiation and arbitration steps cannot use those steps to block an employee's court case.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 8th December 2025 seeking to strike out or dismiss the Claimant's Statement of Claim for being premature and incompetent for want of jurisdiction, or in the alternative to stay proceedings and refer the dispute to arbitration under Clause 19 of the Letter of Employment dated 21st August 2024, which provided for negotiation and, failing resolution within 30 days, arbitration. The Respondent argued the Court's jurisdiction was displaced by the binding arbitration agreement, relying on Article 159(2)(c) of the Constitution, the exhaustion doctrine, and authorities upholding party autonomy in employment arbitration. The Claimant opposed through Grounds of Opposition and a replying affidavit, contending that the Court's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act cannot be ousted by private contract; that the dispute concerns non-waivable statutory rights under the Employment Act, 2007; that Clause 19 was a staged mechanism never invoked by the Respondent, who never issued a written invitation to negotiate before placing her on administrative leave and terminating her; and that compelling a modest-means foreign national former employee into private arbitration would deny her access to justice. Both parties filed detailed submissions citing extensive authorities. The court held that the dispute arose when the Respondent placed the Claimant on administrative leave and that the Respondent had the opportunity to resolve the issue through negotiation under Clause 19 but did not invite the Claimant, instead terminating her services. The Respondent having failed to adhere to its own procedure could not cite the Claimant's non-compliance. The court declined the drastic relief sought, instead giving the parties time to settle out of court while retaining its residual power to determine the claim if negotiation and arbitration fail, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether by virtue of the binding arbitration Clause 19 of the employment contract, the Court lacks jurisdiction to entertain the Claim in its present form
  2. 2.Whether the proceedings should be stayed and the parties referred to arbitration under Section 6 of the Arbitration Act, 1995
  3. 3.Whether the Claimant's statutory rights under the Employment Act, 2007 render the arbitration clause inoperative and preclude a referral to arbitration
  4. 4.What order should be made as to costs

Key legal issues

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01

Whether the arbitration clause in the employment contract ousts the Court's jurisdiction

Holding

No - the Respondent's failure to invoke Clause 19's negotiation stage before terminating employment disentitled it from relying on the clause to defeat the claim

Reasoning

The court found the dispute arose on 6/5/2025 when the claimant was placed on administrative leave, extended on 14/5/25. During that period the respondent had an opportunity to resolve the issue through negotiation under Clause 19 but did not invite the claimant to negotiate, instead terminating her services on 20/6/25. Having disregarded its own procedure, the respondent could not cite the claimant's non-compliance.

p. 11
02

Whether the claim should be stayed and referred to arbitration under Section 6 of the Arbitration Act

Holding

The court declined the drastic relief but gave parties time to settle out of court, retaining residual power to determine the claim if negotiation and arbitration fail

Reasoning

Rather than granting a mandatory stay or striking out the claim, the court adopted a middle course consistent with the claimant's own proposed approach: preservation rather than destruction of the suit, allowing the parties to attempt the contractual ADR mechanism while the court's jurisdiction remains intact.

p. 11

Legal principles established

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  • A party that fails to follow its own contractual dispute-resolution procedure under a staged arbitration clause cannot rely on the claimant's non-exhaustion of that procedure to strike out or stay a claim
  • Where negotiation and arbitration under a contractual ADR clause fail, the court retains residual power to determine the claim

Court orders

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  1. 1.The Respondent's Notice of Motion dated 8th December 2025 seeking to strike out/dismiss the Claim or stay proceedings and refer the dispute to arbitration is dismissed
  2. 2.Parties given time to try to settle the claim out of court while retaining the court's residual power to determine the claim if negotiation and arbitration fail
  3. 3.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution and Sections 3(1) and 12 of the Employment and Labour Relations Court Act, 2011

Relief refused

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Strike out and/or dismissal of the Claimant's Statement of Claim for want of jurisdiction

Respondent failed to adhere to its own set procedure of negotiation and arbitration under Clause 19 and cannot cite non-compliance by the Claimant

p. 11

Stay of proceedings and referral to arbitration under Section 6 of the Arbitration Act

The staged Clause 19 was never invoked as prescribed; the Respondent never issued the written invitation to negotiate before terminating employment

p. 11

Costs of the application and of the Claim awarded to the Respondent

Court ordered costs in the cause instead

p. 11

Costs

Costs in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In this courts view, the respondent failed to adhere to their own set procedure of negotiation and arbitration and cannot cite none compliance by the claimant who proceeded to file this case.
p. 11Failure to invoke contractual ADR procedure bars reliance on non-exhaustion
This notwithstanding, I will give the parties time to try to settle this claim out of court while retaining the court's residual power to determine the claim if negotiation and arbitration fail. Costs in the cause.
p. 11Final orders - settlement window with residual jurisdiction retained

Issues in the judgment

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minor

Coram initials 'HS WASILWA' differ from signature 'HELLEN WASILWA'; same judge

minor

Judgment dated 22 September 2026 in a Cause numbered 2025 with application dated 8 December 2025

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Michaux v Chavda Educational Holdings Limited", Case Analysis (2026). Employment and Labour Relations Cause E1144 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.