Anne Njeri Gitau v Tectona Consulting Limited

Kshs.317,796/=, being the outstanding amount owing to the Claimant in unpaid salaries. (c) General damages. (d) Costs of the suit and interest at Court rates from the date of filing suit until payment in full. (e) Any other order as the Court may deem fit and just to grant. 2. The Claimant pleaded, inter-alia:(a) that vide an Amended Employment Contract dated 1st March, 2024, the Respondent employed the DRAFT Claimant in the capacity of a Data Innovation Lead, at a monthly salary of Kshs.211,075/=. That prior to the amendment of the said contract, the Claimant’s remuneration had been Kshs.175,000/= per month. (b) that the Claimant was to perform her contractual duties until 30th June, 2024 when her contract would come to an end pursuant to Clause 6 thereof. (c) that although the Claimant undertook her duties with utmost diligence and loyalty, the Respondent RULING Nairobi ELRC Cause No. E784 of 2025 2 of 20

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embarked on an adventure of withholding and/or failing to settle the Claimant’s monthly salary contrary to the terms of Clause 3.2 of the said Amended Employment Contract; and refused and/or declined to pay the Claimant’s salary for the months of March, April, May and June 2024. (d) that the Claimant made efforts to have the Respondent settle her dues to no avail; and that vide an email sent to the Claimant on 10th June, 2025, the Respondent reassured the Claimant that her dues would be settled by 15 th January, DRAFT 2025, but failed to pay. (e) that 20th January, 2025, The Respondent made a further undertaking, and that a settlement plan was availed to the Claimant; but no settlement was made. (f) that the Respondent owes the Claimant a total of Kshs.317,796/=. 3. The Respondent entered appearance on 9th September, 2025 and filed an evenly dated Chamber Summons application. RULING Nairobi ELRC Cause No. E784 of 2025 3 of 20

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dated 9 th This is the application before me for determination. The The Chamber Summons Application September, 2025 4. Respondent/Applicant seeks the following Orders:(a) That there be temporary stay of the proceedings herein pending the hearing and determination of the application. (b) That the matter be referred to Arbitration in accordance with Clause 16.3 of the Amended Employment Contract (Contract No. TCL/EMP/001/03/2024) between the Claimant and DRAFT the Respondent/Applicant herein dated 13 th March, 2024. (c) That the Court be pleased to issue such further orders as it shall deem fit and just in the circumstances of the case. (d) 5. That costs of the application be provided for. The application sets out on its face the grounds upon which it is brought, which grounds are substantially replicated in the affidavit of Faith Khaemba sworn in support of the application. It is deponed in the said affidavit, inter alia:- RULING Nairobi ELRC Cause No. E784 of 2025 4 of 20

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(a) that Clause 16.3 of the employment contract clearly and expressly provides that any dispute and/or disagreement between the parties arising out of or in connection with the contract shall be referred to arbitration. (b) that the Claimant has instituted the suit herein in total disregard of a valid and binding agreement to refer any contractual dispute between the parties to arbitration. (c) that this Court lacks the requisite jurisdiction in the first instance, to hear and determine the suit. DRAFT (d) that none of the exceptions set out in Section 6(1) of the Arbitration Act apply to the present case. 6. The application is opposed by Claimant/Respondent vide her replying affidavit sworn on 20th October, 2025. It is deponed in the said replying affidavit, inter-alia:(a) that the application is factually misconceived and legally misguided, and is an abuse of this Court’s process. (b) that the issues before this Court are not contractual, but arise from the Respondent’s RULING Nairobi ELRC Cause No. E784 of 2025 5 of 20

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breach of statutory duties and violation of the Claimant’s fundamental rights as an employee, including the right to fair labour practices under Article 41 of the Constitution of Kenya 2010, and Sections 7 and 8 of the Employment Act (Cap. 226 Laws of Kenya). (c) that the Respondent’s refusal to pay the salary for several months, as the statement of Claimant’s particularised in claim, constitutes an unfair labour practice. (d) that this Court has the requisite jurisdiction to DRAFT hear and determine the dispute herein pursuant to Article 162(2)(a) of the Constitution of Kenya and Section Relations 12 of the Court Act, Employment which and confer Labour exclusive jurisdiction upon this Court. (e) that the arbitration clause (Clause 16.3) in the Amended Employment Contract cannot lawfully oust this Court’s jurisdiction, which is arrogated to it by both the Constitution and the statute. (f) that Courts have consistently held that constitutional and statutory rights are not RULING Nairobi ELRC Cause No. E784 of 2025 6 of 20

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capable of being contracted away. That this Court cannot ignore the Claimant’s constitutional rights that have been violated, and the Respondent/Applicant’s statutory duties which it has blatantly breached. (g) that Section 6 of the Arbitration Act cannot apply in the circumstances of the case herein as the dispute concerns entitlements and violation rights, of the statutory [but] not a mere commercial or a contractual disagreement. (h) that whereas arbitration is a recognized dispute DRAFT resolution mechanism, it must not be weaponised against an employee or a former employee. (i) that arbitration appropriate is dispute not recognized resolution as an mechanism in employment disputes. (j) that Section 15(1) of the Employment and Labour Relations Court Act requires this Court to promote appropriate means of alternative dispute resolution, but deliberately omits arbitration as an acceptable mechanism in employment disputes. RULING Nairobi ELRC Cause No. E784 of 2025 7 of 20

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(k) that a dispute such as the one herein can only be referred to alternative dispute resolution by mutual consent of both parties. (l) that the application herein is made in bad faith, after the Applicant deliberately withholding the Claimant’s lawful dues despite numerous written promises and admissions of indebtedness. (m) that referring the matter to arbitration will occasion undue hardship, delay and unnecessary expense to the Claimant, as arbitration process is costly, and both parties will be required to jointly DRAFT appoint and pay a sole arbitrator, which the Claimant is not capable of doing at this stage; and that reference of the matter to arbitration will hinder the Claimant’s right of access to justice, contrary to Article 48 of the Constitution of Kenya. (n) that further, reference of the matter to arbitration would be unjust to the Claimant due to financial power imbalance between the employer and a former employee, as arbitration requires both parties to facilitate the process; including paying RULING Nairobi ELRC Cause No. E784 of 2025 8 of 20

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the arbitrator’s fees and venue costs. That the Respondent/Applicant would benefit from this financial power imbalance. 7. Both parties filed written submissions on the application pursuant to the Court’s directions in that regard. 8. I have noted from the Claimant’s statement of claim that basically, the Claimant’s claim against the Respondent is for Kshs.317,796/=, made up of unpaid salary (salary arrears) for specified months. The Claimant pleads that nonDRAFT payment of the said sum (her salary) amounted to an unfair labour practice, and asks the Court to so declare, and to order payment of damages to her. The Claimant also prays for costs and interest. 9. It is the Claimant’s pleading that “through authorised agents, the Respondent acknowledged the fact that it had delayed and/or withheld the Claimant’s salaries/dues and made assurances that her dues would be settled in due course”. That the Respondent provided the Claimant with a reconciliation of the dues on RULING Nairobi ELRC Cause No. E784 of 2025 9 of 20

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29th January, 2025, but no efforts were made to settle the same. 10. The issue of admission of the Claimant’s outstanding salary arrears is neither mentioned nor denied in the affidavit sworn in support of the Respondent’s application herein. There is no denial regarding the pleaded unpaid salary. In brief, no disagreement on the pleaded unpaid salary arrears has been demonstrated by either party. Refusal and/or failure to pay, even after admission of the owing sum and promise to pay, is what is demonstrated and/or DRAFT portrayed in the pleadings so far filed in Court. 11. Clause 16 of the Claimant’s Amended Employment Contract executed by the Respondent on 1st March, 2024 and by the Claimant on 11th March, 2024, copies whereof have been filed herein by both parties, states as follows:“16. DISPUTE RESOLUTION 16.1 Negotiation In the event of any dispute or disagreement arising out of or relating to this Employment Agreement, the parties agree to first attempt to RULING Nairobi ELRC Cause No. E784 of 2025 10 of 20

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resolve the dispute through negotiations between themselves. good faith The parties shall designate representatives with decisionmaking authority for such negotiations. 16.2 Mediation If negotiations do not lead to a resolution within thirty (30) days after the written notice of dispute, the parties agree to submit the dispute to Mediation. The Mediation shall be conducted by a Mediator with expertise in organizational change management and be mutually agreed DRAFT upon by both parties. The costs of negotiation shall be shared equally between both parties, unless the Mediator determines otherwise. 16.3 Arbitration If the dispute is not resolved through negotiation, or mediation, either party may elect to resolve the dispute through binding arbitration. The arbitration shall be conducted in accordance with the Arbitration Act (Cap. 4) Laws of Kenya and the rules of the Chartered Institute RULING Nairobi ELRC Cause No. E784 of 2025 11 of 20

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of Arbitrators (Nairobi Branch) for the time being in force at the commencement of the arbitration proceedings. The decision rendered by the arbitrator shall be final and binding. Each party shall bear its own costs of the arbitration, and the parties shall share equally the fees and expenses of the arbitrator, unless the arbitrator determines otherwise. The prevailing party in the arbitration shall be entitled to recover its reasonable attorney fees and costs incurred in connection DRAFT with the arbitration”. 12. It is clear from the foregoing that Clause 16 of the Claimant’s Contract of Employment (on resolution of disputes and disagreements) arising out of and relating to the contract, is to be read and construed as a whole, as its provisions are sequential. The Clause provides that its sequential dispute resolution provisions are to be resulted to/invoked “in the event of any dispute or disagreement”. RULING Nairobi ELRC Cause No. E784 of 2025 12 of 20

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13. There is not shown to have been a dispute and/or a disagreement between the Claimant and her employer (the Respondent) as at 30th June, 2024 when the Claimant’s contract terminated by effluxion of time, or thereafter. None of the parties is shown and/or pleaded to have invoked Clause 16.1 and initiated negotiations as per that clause, or to have invoked Clause 16.2 on mediation; either in the sequence set out in the contract or at all. 14. In the contrary, the Respondent is pleaded (and shown) to DRAFT have, on its own accord, issued a conciliation of the alleged salary arrears to the Claimant and promised/undertaken to pay, but never paid. to have The present suit is shown (pleaded) to be for recovery of the said undisputed salary arrears. It is also pleaded that failure to pay amounted to a violation of the Claimant’s right to fair labour practice, and hence a prayer for damages. 15. 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 RULING Nairobi ELRC Cause No. E784 of 2025 13 of 20

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accordance with the amended contract or at all, this Court cannot be called upon to refer the suit herein for arbitration. I find and hold that matters placed before this Court do not fall within the purview of Clause 16 of the Claimant’s amended contract of employment. 16. Contracting parties are always bound by the terms and conditions of their contract, and cannot call upon the Court to enforce some clauses of the contract when they themselves are shown to have ignored and/or breached other clauses of the same contract. The Court cannot re- DRAFT write a contract, but can only enforce lawful terms of a contract, strictly as agreed by the contracting parties. It was held as follows in National Bank of Kenya Ltd – vs – Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR):“. . . A court of law cannot re-write a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, RULING Nairobi ELRC Cause No. E784 of 2025 14 of 20

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fraud or undue influence in regard to the terms of the charge.” 17. The question that follows is whether this Court is seized of Jurisdiction to hear and to determine the suit herein. By dint of Article 162(2)(a) of the Constitution of Kenya 2010, this Court is endowed with jurisdiction to hear and to determine disputes relating to employment and labour relations. Article 162(3) mandated Parliament to determine this Court’s jurisdiction and functions; which mandate Parliament executed by enacting the Employment and DRAFT Labour Relations Court Act. 18. The preamble to the Employment and Labour Relations Court Act states as follows:“An Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes”. RULING Nairobi ELRC Cause No. E784 of 2025 15 of 20

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19. Any dispute relating to or connected to an employment relationship between an employer and an employee falls within the purview of this Court’s Jurisdiction. I stated as follows in the case of Grace Kadenge Anyembe – vs – National Bank of Kenya Limited [2026] KEELRC 461 (KLR):“12. Any dispute relating to or connected to an employment relationship employer employee and between falls within purview of this Court’s Jurisdiction. an the The words “for connected purposes” as used in DRAFT the aforestated preamble widens this Court’s Jurisdiction beyond the existence employer-employee relationship. of an That is why, for example, the Court will hear and determine disputes arising from and connected to an employment contract long after the employment contract is terminated. The Employment Act is called in aid in this regard”. RULING Nairobi ELRC Cause No. E784 of 2025 16 of 20

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20. Section 12(1)(a) of the Employment and Labour Relations Court Act provides as follows:“(1) The Court shall have exclusive original and appellate Jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including – DRAFT (a) disputes relating to or arising out of employment between an employer and an employee”. 21. It was stated as follows in the case of Abraham Nyambane Asiago – vs – Barclays Bank of Kenya Limited [2013] eKLR:“16. The question then is what constitutes a dispute relating employment employee. RULING Nairobi ELRC Cause No. E784 of 2025 to between or an arising out employer of and Is it confined to issues that are 17 of 20

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ordinarily found in employment contracts or does it extend to all matters emanating from the employment contract? . . . 17. By its nature, the employment relationship generates a multiplicity of rights and obligations, some of which are not to be found in the express provisions of the employment contract. In my view, all these fall under employment and labour relations as intended by the law makers. To rule DRAFT otherwise would be to create a situation where an employer or an employee traverses different Courts to enforce different rights arising from the same employment relationship. That in my view could not have been the intention of the legislators. . . .” 22. The long and short of all the foregoing is that this Court is seized of Jurisdiction to hear and to determine the Claimant’s suit herein. RULING Nairobi ELRC Cause No. E784 of 2025 18 of 20

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23. 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. 24. The Respondent shall file and serve its pleadings within 14 days of this Ruling, and hearing of the suit shall thereupon be fast-tracked. 25. Costs of the application shall abide the outcome of the main suit. DRAFT 26. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE RULING Nairobi ELRC Cause No. E784 of 2025 19 of 20

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ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: No appearance for the Claimant Mr. Wamunga for the Respondent DRAFT RULING Nairobi ELRC Cause No. E784 of 2025 20 of 20

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