Agnes Waruguru Gaita & another v RSM Eastern Africa LLP & another [2021] KEELRC 1846 (KLR)
The bottom line
#A Kenyan employment court confirmed that arbitration clauses in employment contracts don't remove its jurisdiction, and refused to refer disputes to arbitration because required pre-arbitration consultation never happened.
What this practically means
#Executive summary
#Key legal issues
#Effect of an arbitration clause on the court's jurisdiction
An arbitration clause does not oust the court's jurisdiction; Section 6 of the Arbitration Act provides for a stay, not dismissal, and the court retains jurisdiction unless a party elects arbitration
Section 6 of the Arbitration Act allows a court to stay proceedings where a party applies, but does not state that an arbitration clause ousts jurisdiction. Section 7 expressly preserves the court's power to hear interim applications. The court's jurisdiction is therefore conjunctive with arbitration and remains in situ absent an objection by the respondent.
Whether referral to arbitration was ripe
The application was premature because the contractual conditions precedent - written request for good-faith consultation, failing which written notice of referral to arbitration - were never complied with by either party
The arbitration clause required consultation in good faith commenced by written request, and only after fifteen days of failed consultation could a party refer the dispute to arbitration. Neither party made such a request. The 1st Respondent, aware of the intended suit from the demand letters of 3rd August 2020, never set the clause in motion. Following Nanchang Foreign Engineering and County Government of Kirinyaga, referral was premature.
Liability of the 2nd Respondent under the arbitration clause
The 2nd Respondent is sued in his personal capacity, not as agent of the employer, so vicarious liability principles do not attach to him on the sexual harassment and discrimination claims
The 2nd Respondent argued that as an 'employer' under Section 2 of the Employment Act he is bound by the arbitration clause. The court held the context is a personal-capacity suit; the employer would only be vicariously liable where a fellow employee had authority for the acts complained of. The court nonetheless agreed the damages prayers were capable of arbitration.
Jurat of the replying affidavits
The defect in the scanned affidavits was not fatal as the Claimants had filed grounds of opposition and the relevant issues were already pleaded
The applicant contended the replying affidavits were unsigned. The court held more evidence would be needed to establish non-compliance with the Oaths and Statutory Declarations Act on a scanned copy, and in any event the grounds of opposition sufficed since the relevant issues were pleaded in the claims and applications.
Legal principles established
#- An arbitration clause does not oust the jurisdiction of the Employment and Labour Relations Court; the court's jurisdiction is conjunctive with arbitration and remains in situ unless a party objects
- Where an arbitration clause makes consultation a condition precedent, referral to arbitration is premature until that step is taken
Court orders
#- 1.The preliminary objection by the 2nd Respondent is dismissed
- 2.The applications to stay the suits and refer the disputes to arbitration are dismissed as premature
- 3.The Claimants' withdrawn applications are withdrawn with no orders for costs
- 4.Costs of the applications shall be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution; court seized of applications under Section 6 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michaux v Chavda Educational Holdings Limited[2026] KEELRC 2476 (KLR)22 Sept 2026
- Kenindia Assurance Company Ltd v Kipnyekwei t/a Nyekwei & Company Advocates (Environment and Land Appeal E033 of 2022) [2026] KEELC 2694 (KLR)[2026] KEELC 2694 (KLR)7 May 2026
Cite this brief
#Cite this brief
Caselaw, "Agnes Waruguru Gaita & another v RSM Eastern Africa LLP & another [2021] KEELRC 1846 (KLR)", Case Analysis (2021). Cause No. E439 of 2020 (with identical application in Cause No. E428 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1846/eng@2021-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.