Michaux v Chavda Educational Holdings Limited

4. It is therefore the Applicant’s case that, by instituting the present proceedings before the Court, the Claimant disregarded the dispute resolution mechanism freely agreed upon in the contract of employment. 5. The Applicant avers that Article 159(2)(c) of the Constitution requires courts to promote alternative forms of dispute resolution, including reconciliation, mediation and arbitration. It argues that the Claimant’s decision to bypass the agreed arbitration process is contrary to the constitutional framework and undermines the parties’ contractual choice of dispute resolution. 6. It is the Applicant’s case that the claim oends Sections 3(1) and 15(1) of the Employment and Labour Relations Court Act, 2011, which recognize and encourage the resolution of employment disputes through alternative dispute resolution mechanisms. 7. The Applicant contends that the Claimant failed, neglected or refused to exhaust the internal and contractual mechanisms provided under the Letter of Employment before approaching the Court. 8. The Applicant contends that the Claimant was bound to pursue the dispute resolution procedure stipulated in the Letter of Employment and that the Court lacks jurisdiction to hear and determine the Claim as presently framed. Claimant/Respondent’s Case 9. In opposition to the application, the Claimant/Respondent led Grounds of Opposition dated 11th February 2026 on the following grounds: 1. This Honourable Court has original jurisdiction over all disputes relating to employment and labour relations under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. That jurisdiction is conferred by the Constitution and statute and cannot be taken away altogether by a private contract; an arbitration clause can only go to how and when the Court exercises that jurisdiction, not to its existence. 2. The dispute before Court concerns statutory rights and protections under the Employment Act, 2007 and the Constitution, including lawful and fair termination, fair administrative action, payment of dues, treatment during administrative leave and compliance with Kenyan labour and immigration law. Such rights are creatures of statute, not merely contractual and cannot be taken away by an arbitration clause. 3. Clause 19 of the Letter of Employment does not on its proper construction, oust this Court's jurisdiction. At most, it provides a contractual mechanism the parties may use to attempt settlement. It cannot override clear constitutional and statutory conferral of jurisdiction on this Court. 4. In particular, the Respondent never issued any written invitation to negotiate within the meaning of Clause 19, did not initiate any negotiation process within 30 days of any dispute and never proposed arbitration to the Claimant before or after termination. The Respondent cannot rely on a contractual procedure it never invoked in good faith. 5. By unilaterally placing the Claimant on administrative leave, locking her out of her work tools and then terminating the employment without ever invoking Clause 19, the Respondent treated the arbitration clause as irrelevant during the life of the relationship. Having itself elected not to follow that procedure when it mattered, the Respondent cannot now revive it as a shield against judicial scrutiny. In these circumstances the clause is, for this dispute, inoperative within the meaning of section 6 of the Arbitration Act. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 2

page 2 of 11

6. Under section 6(1) of the Arbitration Act, a stay may only issue where there is an arbitration agreement which is not null and void, inoperative or incapable of being performed. To the extent Clause 19 purports to prevent an employee from enforcing statutory unfair termination rights in this specialised Court, the clause is inoperative and/or null and void for that purpose. A clause that was never triggered in the manner it prescribes and that would now be used only to block enforcement of minimum employment standards after termination, falls squarely within that category. 7. The Respondent’s application invites this Court to abdicate a constitutionally assigned role in favour of a private forum that is not mandated to discharge the same public law function as this specialised Court in supervising employers and developing minimum employment standards. Granting the application in these circumstances would oend Articles 41, 48 and 50 on fair labour practices and access to justice. 8. Courts of this jurisdiction have repeatedly emphasised that a stay on account of an arbitration clause is not automatic and have, in appropriate cases, declined to stay or strike out employment claims where doing so would deprive an employee of statutory protection and access to this Court. 9. Further, unlike classic commercial contracts between corporate parties bargaining on equal footing, an employment contract is characterised by clear inequality of bargaining power and is overlaid by non-waivable minimum terms under the Employment Act, 2007. The Arbitration Act was developed in the context of commercial arbitration and section 6 must therefore be applied with sensitivity to this dierent context and to this Court’s protective mandate over employment relationships. 10. By the time this Claim was led, the Respondent had already brought the employment relationship to an end without invoking Clause 19. What now remains is a dispute over the lawfulness of that termination and the Claimant’s dues. Those are precisely the kind of posttermination statutory questions that this Court is specially constituted to resolve. 11. The Respondent's authorities are factually and legally distinguishable, inter alia because: a. Several of the authorities relied on concern disputes where the parties were found to have bargained at arm’s length and where the dispute was predominantly commercial in character, not the enforcement of minimum employment standards after termination by an individual employee. b. None of them holds that an arbitration clause can constitutionally bar an employee from approaching this Court to challenge an unfair and unlawful dismissal. 12. Even where courts have recognised the importance of party autonomy and arbitration, they have not held that this Court lacks jurisdiction altogether; at most, they consider whether a stay is appropriate. The Respondent's prayer to strike out or dismiss the Claim as incompetent for want of jurisdiction is therefore misconceived and an abuse of process. 13. The Claimant is an individual employee of modest means; the Respondent is an established educational institution. Forcing a foreign national employee, already removed from the Respondent’s payroll and with no independent income, into a private arbitration process, with its own costs, rules and fee structure, would in practical terms shut the Claimant out of justice and defeat the protective purpose of the Employment Act. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 3

page 3 of 11

14. The Respondent has not demonstrated that arbitration would oer any clear procedural or substantive advantage over this Court in terms of speed, cost or ability to enforce Kenyan employment standards. Instead, the application appears calculated to delay and to avoid public judicial scrutiny of the manner in which the Claimant was treated while on compassionate and administrative leave and at termination. 15. There is no prejudice to the Respondent if the matter proceeds in this Court. The Respondent can still raise all contractual, factual and legal defences at the main hearing. By contrast, the Claimant would suer substantial prejudice if her statutory claim is stayed or struck out in favour of private arbitration. 16. In the premises, the Respondent's Application does not satisfy the requirements of section 6 of the Arbitration Act and discloses no legal basis for staying, striking out or dismissing the Claimant's Statement of Claim. 17. In the circumstances, the Respondent's Application ought to be dismissed with costs and the matter be xed for hearing on the merits. 10. In further opposition to the application, the Claimant/Respondent led a replying adavit dated 11th February 2026. 11. The Claimant avers that she was employed by the Respondent as a teacher under a Letter of Employment dated 21st August 2024, and that the present dispute arises from her subsequent placement on repeated administrative leave, removal of access to her professional tools, and eventual termination of her employment while still on paid administrative leave, alongside unresolved work permit and statutory deductions issues. 12. The Claimant/Respondent states that the dispute concerns, inter alia, unfair and unlawful termination, unlawful treatment during administrative leave and the Respondent’s alleged failure to comply with statutory obligations under the Employment Act, 2007 and other applicable laws. 13. She contends that these are matters of statutory entitlement and protection, and not merely disputes arising from the private contractual relationship between the parties. 14. On the arbitration clause, the Claimant/Respondent asserts that, after the dispute arose, the Respondent never issued the written invitation to negotiate contemplated under Clause 19 of the Letter of Employment. 15. She states that she was never invited to any negotiations, nor was arbitration proposed or commenced in accordance with the procedure stipulated in the contract. Therefore, the preconditions to invoking the arbitration clause were never met. 16. The Claimant/Respondent further states that, instead of initiating the contractual dispute resolution process, the Respondent placed her on administrative leave while she was on compassionate leave following a bereavement, removed her access to the school’s email, Google Drive and Class Dojo platforms, kept her on administrative leave without clear written terms, and subsequently terminated her employment. 17. It is the Claimant/Respondent’s case that, by the time she instructed her Advocates and led the present Claim, the employment relationship had already been terminated without the Respondent having initiated the process contemplated under Clause 19. Thus, there is no subsisting employment relationship requiring preservation through arbitration, but rather a dispute as to the legality of her termination and treatment and her entitlement to damages and employment dues. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 4

page 4 of 11

18. The Claimant/Respondent further asserts that she is a foreign national and an individual teacher of modest means who has been left without an independent income following the termination of her employment. She argues that compelling her to pursue private arbitration, with the attendant arbitrator’s fees and other costs, would place her at a signicant nancial disadvantage and, in practical terms, impede her ability to vindicate her statutory employment rights. 19. The Claimant/Respondent states that the practical eect of compelling arbitration in her circumstances would be to prevent her from pursuing the claim altogether. She contends that this is the type of injustice that the law seeks to avoid where an arbitration agreement is inoperative or incapable of being performed. 20. It is the Claimant/Respondent’s case that the Court derives its jurisdiction from the Constitution and statute and that such jurisdiction cannot be ousted by a contractual arbitration clause in an employment contract. 21. She contends that the arbitration clause, to the extent that it purports to prevent her from accessing the Court to enforce statutory labour rights, is inoperative and/or null and void. 22. The Claimant/Respondent asserts that Courts have declined to stay employment disputes on the basis of arbitration clauses where such a stay would deprive employees of statutory protection and access to the Employment and Labour Relations Court. 23. She contends that the application is not genuinely intended to facilitate alternative dispute resolution but is an attempt to delay and frustrate the hearing of the Claim and avoid judicial scrutiny of her treatment during compassionate and administrative leave and at the time of termination. Respondent/Applicant's Submissions 24. The Applicant submitted on ve issues: whether by virtue of the binding arbitration Clause 19 of the employment contract, this Honourable Court lacks jurisdiction to entertain the Claim in its present form; In the alternative, whether the proceedings should be stayed and the parties referred to arbitration under Section 6 of the Arbitration Act, 1995; Whether the Claimant’s statutory rights under the Employment Act, 2007 render the arbitration clause inoperative and preclude a referral to arbitration; Whether the Claimant’s Grounds of Opposition disclose any legal basis to resist the Application; What order should be made as to costs. 25. On the rst issue, the Applicant submitted that jurisdiction is fundamental to the exercise of judicial power and relied on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the Supreme Court held that jurisdiction ows from the Constitution or written law and that a court cannot exercise jurisdiction beyond that conferred upon it. It was argued that the parties’ contractual choice of arbitration as their dispute resolution mechanism must therefore be respected. 26. The Respondent/Applicant further submitted that Article 159(2)(c) of the Constitution requires courts to promote alternative dispute resolution, including arbitration, while Section 15(1) of the Employment and Labour Relations Court Act recognizes and encourages the settlement of employment disputes through alternative dispute resolution mechanisms. It contended that these provisions establish a constitutional and statutory framework favoring enforcement of valid arbitration agreements. 27. On Clause 19, the Respondent/Applicant submitted that the parties expressly agreed to rst attempt negotiations and, if the dispute remained unresolved within 30 days of a written invitation to negotiate, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 5

page 5 of 11

to refer the dispute to arbitration under the Arbitration Act, 1995. Therefore, the clause constitutes a valid arbitration agreement within the meaning of Section 3 of the Arbitration Act, covering disputes arising from or relating to the employment contract. 28. It is the Applicant’s submission that the Claimant freely executed the employment contract containing Clause 19 and that its validity and her signature were not disputed. Thus, the Claimant is bound by the contractual choice of arbitration and cannot bypass the agreed mechanism by instituting proceedings before the Court. 29. In support of this position, it relied on Talewa Road Contractors Limited v Kenya National Highways Authority [2021] KECA 276 (KLR), where the Court of Appeal, relying on Dock Workers Union Limited v Messina Kenya Limited [2019] eKLR, armed the parties’ freedom to choose arbitration as the mode of resolving disputes arising from an employment contract and held that parties who freely adopt such a mechanism cannot subsequently denounce it. It further relied on AMREF International University & another v Mwitari & 2 others [2025] KEELRC 3031 (KLR), where the Court reiterated that courts must respect parties’ voluntary choice of arbitration. 30. The Respondent/Applicant further submitted that the Claimant invoked this Court’s jurisdiction without issuing the written invitation to negotiate contemplated by Clause 19, allowing the prescribed 30-day negotiation period to lapse, or initiating arbitration. It was argued that this amounted to failure to exhaust the agreed alternative dispute resolution mechanism. 31. Invoking the doctrine of exhaustion, the Applicant cited Georey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR for the proposition that "where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked," and further relied on Louis Onyango Owoko v Kenya Railways Corporation [2021] KEELRC 1318 (KLR) rearming this doctrine. It was submitted that the Claimant's conduct in ling suit without any resort to the agreed mechanism was precisely the mischief the exhaustion doctrine was designed to forestall. 32. On the second issue, the Applicant submitted that should the Court decline to strike out the Claim, Section 6(1) of the Arbitration Act obligates a court to stay proceedings and refer parties to arbitration where a valid arbitration agreement exists, save in the two narrow exceptions of the agreement being null and void, inoperative or incapable of being performed or there being no dispute in fact. 33. It submitted that the word "shall" imports a mandatory obligation, not a discretionary one, and that the burden of proving an exception lay on the Claimant, who had not discharged it. 34. The Applicant contended that all three preconditions for mandatory stay were satised: a valid, written arbitration agreement existed in Clause 19; the application was led promptly on 8th December 2025 without any step being taken in the proceedings beyond entry of appearance; and neither statutory exception applied, since the clause had never been repudiated or waived and was capable of performance, and a genuine dispute manifestly existed between the parties regarding the termination and unpaid dues. 35. On the third issue, the Applicant submitted that the correct test for arbitrability in Kenya is not whether a claim involves statutory rights, but whether the subject matter of the dispute is capable of settlement by arbitration and whether any statutory provision expressly or by necessary implication prohibits the arbitration of such disputes. The Employment Act, 2007 does not contain such prohibition. 36. Reliance was placed on Cecilia Wangechi Ndungu v County Government of Nyeri & another [2014] eKLR, where the Court of Appeal held that statutory claims may be validly arbitrated absent an express https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 6

page 6 of 11

prohibition or an oence to public policy, and on AMREF International University & another v Mwitari & 2 others [2025] KEELRC 3031 (KLR), where this Court held that an arbitral tribunal is competent to determine and award the same reliefs available before it. The English authority of Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40 was also cited for the principle that a statute conferring rights does not thereby render those rights non-arbitrable absent express or necessarily implied exclusion. 37. It was argued that agreeing to the Claimant's position would have the startling and absurd consequence of rendering inoperative every arbitration clause in every employment contract in Kenya a result that is plainly inconsistent with the Constitution, the Arbitration Act, and contrary to the decisions of the Court of Appeal and this Court. 38. It is the Applicant’s submission that an arbitral tribunal is competent to determine questions of law and fact arising from an employment relationship and to grant appropriate remedies, including compensation for unfair termination and payment of statutory entitlements. It therefore contended that referral to arbitration would not deprive the Claimant of her substantive statutory rights but would merely require her to vindicate those rights in the forum she had contractually agreed upon. 39. On the fourth issue, each of the four grounds raised by the Claimant in her Grounds of Opposition was legally unsustainable, such that none, whether taken singly or cumulatively, could defeat the application. 40. First, on the Claimant's contention that this Court's jurisdiction under Article 162(2)(a) of the Constitution cannot be ousted by a private contract, it was submitted that this argument was misconceived because it conated the existence of jurisdiction with its exercise. The Applicant argued that it did not contend the Court lacked jurisdiction altogether; rather, its primary prayer was for a strike-out on grounds of prematurity and want of jurisdiction in the present form of the Claim, or alternatively a stay pending arbitration. 41. It submitted that the stay remedy under Section 6 of the Arbitration Act presupposes the Court's jurisdiction while requiring it to step aside in deference to the parties' chosen forum. This was fortied in Nyakwara v Trivitron Healthcare Africa [Kenya] Limited [2024] KEELRC 1460 (KLR), where Rika J held that: “It is the Parties’ prerogative, to attempt settlement through mediation, and to refer the dispute to arbitration, failing mediation. It is not in the mandate of the Court to refer Parties to arbitration. It is not in the mandate of the Court to determine if Parties should refer the matter to arbitration. They agreed to positively reject the jurisdiction of the Court, and embrace private mechanisms of dispute resolution. The Court would be acting against the Parties’ wish, by intervening as proposed by the Claimant. Any referral is a prerogative of the Parties, and the Court can only stay its proceedings, if it presently has jurisdiction, or is likely to have jurisdiction upon the occurrence of certain events contemplated by the Parties in their contract. The Court does not presently have jurisdiction, and none is contemplated in the future, under the contract executed by the Parties.” 42. Second, on the argument that her statutory rights under the Employment Act could not be extinguished by an arbitration clause, it submitted that this ground failed to appreciate the deliberately broad drafting of Clause 19, which covered "any dispute arising out of or relating to this contract" and therefore plainly captured claims of unfair termination, unpaid dues, and statutory violations. 43. The Applicant further submitted that this precise argument had already been considered and rejected by the Court of Appeal in Talewa Road Contractors Limited (Supra), which held that parties who freely elect arbitration cannot resile from that choice merely because employment law confers minimum statutory protections, and that nothing in the Arbitration Act, the Employment Act, or the ELRC Act renders arbitration clauses in employment contracts void or unenforceable. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 7

page 7 of 11

44. Third, on the Claimant's assertion that the Respondent could not rely on Clause 19 because it never issued a written invitation to negotiate, the Applicant submitted that this ground inverted the true position: the clause was available to either party, and it was the Claimant, as the party asserting a grievance and seeking remedies, who bore the obligation to trigger the negotiation step before approaching the Court. 45. It was argued that to accept the Claimant's position would produce the untenable result that a party could unilaterally defeat an arbitration clause simply by suing before the other side invoked it, a proposition said to be irreconcilable with AMREF International University & another v Mwitari (Supra), where the Court held that once parties elect arbitration, that choice must be respected and not overridden by the very procedural maneuver of the party seeking to escape it. 46. Fourth, on the contention that Clause 19 had become inoperative, it was submitted that inoperability requires cogent evidence of repudiation, waiver, or conduct plainly inconsistent with an intention to arbitrate, none of which existed on the facts. To the contrary, it was argued that the Respondent's consistent invocation of Clause 19, culminating in the ling of the present application within the time permitted under Section 6 of the Arbitration Act, was itself demonstrative proof that the clause remained live, operative and binding. 47. It is the Applicant’s submission that the Claimant's Grounds of Opposition disclosed no legal basis capable of resisting the application, and that the Motion ought accordingly to succeed whether by way of a strike-out of the Claim for want of jurisdiction, or, in the alternative, a stay of proceedings with referral of the dispute to arbitration. 48. Fifth, on the Claimant's contention that being compelled to arbitrate would, as a practical matter, bar her from access to justice on account of cost, the Applicant submitted that this argument was speculative, premature, and legally insucient to displace a valid arbitration agreement. It was argued that no evidence had been placed before the Court as to the specic costs of arbitration, the rules that would govern the process, or the applicable fee structure, such that the Claimant's averment of nancial hardship amounted to no more than a bare assertion. 49. In support of this position, it cited Nyakwara (Supra) for the proposition that: “The issues raised by the Claimant, about the skewed authorship of the contract of employment and his inability to nance arbitration, are matters he ought to have foreseen, and raised, when he executed the contract. These are not matters that would confer jurisdiction on the Court. There is no violation of the Claimant’s right of access to justice. The dispute resolution mechanisms Parties have elected, are themselves, avenues for exercise by the Parties, of their right of access to justice.” 50. It was additionally submitted that Clause 19 did not tie the parties to any specic institutional arbitration body or xed fee schedule, the process being expressly governed by rules "as agreed between the parties," such that there was no proper basis to presume the arbitration would necessarily be prohibitively expensive. Claimant/Respondent’s Submissions 51. The Claimant submitted on four issues: whether the Respondent’s prayer for striking out or dismissal of the suit for want of jurisdiction is legally competent; whether the existence of Clause 19 extinguishes this Court’s constitutional and statutory jurisdiction over this post-termination employment dispute; whether on the facts and law of this case the Respondent has satised the threshold for stay and referral under section 6 of the Arbitration Act; and what orders as to remedy and costs ought to follow. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 8

page 8 of 11

52. On the rst issue, the Claimant/Respondent submitted that the Respondent/Applicant's primary prayer is fundamentally misconceived because Section 6 of the Arbitration Act is not a strike-out provision but a stay and referral provision. It was argued that this provision does not speak in the language of extinction of the claim; it speaks in the language of suspension. 53. This position was submitted to be reinforced by Section 15(4) of the Employment and Labour Relations Court Act, which empowers the Court, where a dispute ought to have been referred for conciliation or mediation, to stay proceedings and refer the dispute accordingly. She contended that the statute speaks in terms of preservation through stay, not annihilation through strike out. 54. The Claimant placed reliance on Rule 56(5)(c) of the Employment and Labour Relations Court (Procedure) Rules, 2024, submitting that it expressly and decisively provides that a suit led before exhaustion of a contractual ADR mechanism "may be stayed and not struck out on account of such exhaustion." Therefore, she submitted that the Respondent/Applicant argue for a stay if it can satisfy section 6, but it cannot, consistently with the statutory framework governing this Court, invite the Court to treat the arbitration clause as a guillotine to terminate the suit outright. 55. On the second issue, the Claimant submitted that the Respondent's submission repeatedly collapsed two distinct questions; whether the Court has jurisdiction over employment disputes as a class, and whether, given a contractual ADR clause, the Court should stay its hand at this stage, into one. 56. The Claimant argued that this Court's jurisdiction ows from Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. Its jurisdiction is over employment and labour relations disputes as a class, and is neither conferred by contract nor removable by private contract. At most, the parties’ agreement may aect the timing or sequence in which the Court exercises that jurisdiction, which is precisely why Section 6 of the Arbitration Act is framed as a stay mechanism and not a jurisdiction-stripping provision. 57. The Claimant/Respondent submitted that this distinction was recognized inOkeyo v Board of Directors HHI Management Service Ltd & another [2024] KEELRC 1006 (KLR) , where the Court held that arbitration clauses in employment contracts do not negate the jurisdiction of the Employment and Labour Relations Court, and emphasized the Court’s exclusive jurisdiction under Article 162(2) and section 12. Reliance was also placed on Sammy Onyango Ochieng v Abno Softwares International Limited [2020] KEELRC 5 (KLR), where the Court held that the arbitration clause in the employment contract was meant as an internal dispute resolution mechanism and did not oust the application of the law, further emphasizing sections 26 and 47(3) of the Employment Act. 58. It is the Claimant/Respondent’s submission that the suit before Court is not a pure commercial quarrel. It is a post-termination statutory employment claim for unfair and unlawful dismissal, statutory dues, regularization of deductions and constitutional breach of Article 41(1). The led Statement of Claim pleads precisely that; that character of the dispute matters. 59. On the third issue, it was submitted that a stay is not automatic upon the mere existence of a signed arbitration clause, Section 6 itself preserving the Court's discretion to decline stay where the agreement is inoperative, incapable of performance, or no live dispute falls within its scope. Three diculties were advanced as fatal to the Respondent's application. 60. First, Clause 19 was a staged clause and was never invoked as prescribed. It was submitted that Clause 19 was not a simple "direct to arbitration" clause but rst contemplated negotiation through authorized representatives, with the dispute moving to arbitration only if unresolved within the contractual period; a characterisation the Claimant/Responted pointed to be consistent with the Respondent's own presentation of the clause. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 9

page 9 of 11

61. She submitted that her led adavit is categorical that no written invitation to negotiate was ever issued, no negotiation meeting was convened, and arbitration was never proposed by the Respondent before or after termination. 62. She argued that this mattered, as in Agnes Waruguru Gaita & another v RSM Eastern Africa LLP & another [2021] KEELRC 1846 (KLR), the Court therein considered a materially similar staged clause requiring good-faith consultation rst, and only thereafter arbitration upon written notice. The Court held that section 6 does not state that an arbitration clause ousts the jurisdiction of the Court; it gives a defendant freedom to choose either to have the matter resolved in Court or to stay, not dismiss or strike out, the suit and refer it to arbitration. The Court also treated the consultation step seriously. 63. The Claimant/Respondent submitted that a party that sits on a staged ADR clause until litigation is led, and only then seeks to wield it as a procedural bar, does not present a strong case for the drastic relief now sought. Therefore, the Respondent cannot selectively rely on the tail end of Clause 19 while ignoring the front end of the same clause. She argued that if it wants the clause enforced, it should be enforced as written and not as redrawn in argument. 64. Secondly, this is a post-termination statutory dispute, not an ongoing relational dispute to be managed privately. The Claimant/ Respondent submitted that by the time this suit was led, the relationship had already been terminated; what remained was not a live employment relationship to be saved but a dispute over the legality of the termination, the absence of fair procedure and the employee's statutory dues. She argued that this is not a trivial distinction but one going to the appropriateness of driving the employee away from the specialised statutory forum. 65. In support thereof, she cited Rono v Delish Nail & Beauty Ltd [2023] KEELRC 2996 (KLR), where Baari J held that " It is my considered opinion that the wording of Clause 19 of the employment contract between the parties herein, was to allow negotiation, mediation and subsequently arbitration to disputes arising in the course of employment and not after the contract of employment has been terminated. The respondent/applicant has not shown that it did try the alternative methods of dispute resolution prior to terminating the Claimant’s contract. I arrive at the conclusion that the instant application is one intended to delay the course of justice, is without merit and is dismissed.” 66. Thirdly, the Court must apply Section 6 with sensitivity to the employment context and access-tojustice consequences. The Claimant/Respondent submitted she is an individual employee of modest means, already o payroll, and that her led adavit expressly says that private arbitration with its own fees and structure would in practice shut her out of the process. 67. She argued that the burden is not on her to prove the entire future cost architecture of a hypothetical arbitration before the Court can recognize the obvious asymmetry between a private educational institution and a foreign national former employee who has lost her employment income. 68. The Claimant/Respondent submitted that Rule 56(5)(b) of the ELRC Procedure Rules provides that want of exhaustion of ADR does not operate as a bar where a suit is brought alleging unconstitutionality or unlawfulness of the action or omission in dispute pending such exhaustion. She maintained that is the character of her case as pleaded: unlawful termination, want of fair procedure and constitutional breach of Article 41(1). 69. On the nal issue, the Claimant/Respondent submitted that the application be dismissed with costs, on the basis that the Respondent/Applicant overstated the eect of Clause 19, understated the distinction between jurisdiction and stay, ignored the staged nature of the very clause it sought to invoke, and asked for a remedy unsupported by the governing statutes and rules. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 10

page 10 of 11

70. She submitted that if the Court should reject her prayer for strike out or dismissal, the law points clearly in one direction, that is, preservation and not destruction. In that event, the Claimant proposed that the appropriate course in that event would be: to decline the prayer for striking out or dismissal; to stay the suit only; to direct the parties, if necessary, to comply strictly with the negotiation stage contemplated by Clause 19 within a dened period; to preserve the Claimant's suit and liberty to apply; and to order costs in the cause, or that each party bear its own costs of the application. 71. It was submitted that this approach accords with Section 6, Section 15(4), and Rule 56(5)(c), and prevents a procedural dispute becoming an unjust substantive wipeout. 72. I have examined all the averments and submissions of the parties herein. It is indeed true that under clause 19 of the claimant’s appointment letter, the issue of ADR was spelt out. It is also evident from the claim led that the dispute between the claimant and respondent started on 6/5/2025 with the respondent placing the claimant on administriave leave which was further extended on 14/5/25. Within this period, the respondent had an issue that needed to be resolved and to which they had an opportunity to deal with through negotiation as per clause 19. They did not invite the claimant to try and resolve the dispute but proceeded to terminate her services on 20/6/25. 73. 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 le this case. 74. 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. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2476/eng@2026-09-22 11

page 11 of 11