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ELRCDismissedCause No. E784 of 2025

Anne Njeri Gitau v Tectona Consulting Limited

Employment and Labour Relations Court
25 September 2026
ANAgnes Kitiku Nzei
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to send an unpaid salary case to arbitration because the employer admitted the debt and never followed the contract's negotiation and mediation steps.

What this practically means

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Executive summary

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The Claimant, formerly employed as a Data Innovation Lead under an Amended Employment Contract, sued for unpaid salaries for March to June 2024 totalling Kshs.317,796/=, a declaration that the withholding amounted to unfair labour practice, general damages, costs and interest. Before the suit could proceed, the Respondent filed a Chamber Summons seeking a stay of proceedings and referral of the dispute to arbitration under Clause 16.3 of the contract, contending that the court lacked first-instance jurisdiction and that no exception under Section 6(1) of the Arbitration Act applied. The Claimant opposed, arguing the claim sounded in statutory duties and constitutional rights to fair labour practices under Article 41, that the ELRC had exclusive jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act, and that arbitration could not oust that jurisdiction or be weaponised against an employee. The court held that Clause 16's dispute resolution machinery was triggered only by a 'dispute or disagreement', that none existed because the salary arrears were admitted and never denied, and that neither party had invoked the mandatory negotiation and mediation steps. Applying the principle that a court cannot rewrite a contract, it held the matter fell outside Clause 16. On jurisdiction, it found the ELRC seized of exclusive jurisdiction over employment disputes. The application was dismissed with costs abiding the outcome of the main suit; the Respondent was directed to file and serve pleadings within 14 days and the suit fast-tracked.

Questions the Court framed

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

  1. 1.Whether the suit should be referred to arbitration in accordance with Clause 16.3 of the Amended Employment Contract
  2. 2.Whether this Court is seized of jurisdiction to hear and determine the suit

Key legal issues

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01

Whether the dispute falls within the arbitration clause (Clause 16.3)

Holding

No referral to arbitration because no dispute or disagreement existed as contemplated by Clause 16, and the sequential pre-arbitration steps of negotiation and mediation were never invoked

Reasoning

The court construed Clause 16 as a whole, noting its sequential nature. It found the claim was for recovery of salary arrears that were admitted and never denied; the Respondent issued a reconciliation and promised to pay but never did. Neither party invoked negotiation or mediation, so the precondition of a 'dispute or disagreement' triggering arbitration was absent.

p. 14
02

Whether the Court has jurisdiction over the suit notwithstanding the arbitration clause

Holding

The Court is seized of jurisdiction under Article 162(2)(a) and Section 12(1)(a) of the Employment and Labour Relations Court Act, which confer exclusive original jurisdiction over disputes arising out of employment

Reasoning

The court traced its jurisdiction to Article 162(2)(a) and the ELRC Act, holding that any dispute relating to or connected to an employment relationship falls within its purview, and that the words 'for connected purposes' extend jurisdiction beyond the existence of the employment relationship itself.

p. 18

Legal principles established

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  • A court cannot rewrite a contract; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
  • Any dispute relating to or connected to an employment relationship falls within the ELRC's jurisdiction, and 'for connected purposes' widens that jurisdiction beyond the existence of an employer-employee relationship
  • A party cannot invoke selected clauses of a contract it has itself ignored or breached

Court orders

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  1. 1.The Chamber Summons application dated 9th September, 2025 is dismissed
  2. 2.The Respondent shall file and serve its pleadings within 14 days of the Ruling, and hearing of the suit shall thereupon be fast-tracked
  3. 3.Costs of the application shall abide the outcome of the main suit

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court Act

Relief refused

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Stay of proceedings and referral of the matter to arbitration under Clause 16.3 of the Amended Employment Contract

No dispute or disagreement within the meaning of Clause 16 was shown; the salary arrears were undisputed and the pre-arbitration steps (negotiation, mediation) were never invoked

p. 13

Costs

Costs of the application shall abide the outcome of the main suit.

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 sum, and having considered written submissions filed herein on behalf of both parties, I find no merit in the Chamber Summons application dated 9th September, 2025, and the same is hereby dismissed.
p. 19Dismissal of the application
The Respondent shall file and serve its pleadings within 14 days of this Ruling, and hearing of the suit shall thereupon be fast-tracked.
p. 19Final orders - directions on pleadings and fast-tracked hearing
Costs of the application shall abide the outcome of the main suit.
p. 19Costs
In the absence of a dispute and/or a disagreement as stated in the Claimant’s said amended contract, and there having been no negotiations and mediation proceedings in accordance with the amended contract or at all, this Court cannot be called upon to refer the suit herein for arbitration.
p. 13Preconditions to arbitration referral not met

Issues in the judgment

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material

Ruling is marked 'DRAFT' throughout the document

minor

Judgment dated 2026 yet cites a decision of the same court dated [2026] and cause is of 2025; internal chronology of promised payment dates inconsistent

minor

Application describes the contract as dated 13th March 2024; court records execution on 1st and 11th March 2024

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, "Anne Njeri Gitau v Tectona Consulting Limited", Case Analysis (2026). Cause No. E784 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2682/eng@2026-09-25

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