Chemwachar v Collindale Security Ltd (Employment and Labour Relations Cause E104 of 2025) [2026] KEMC 188 (KLR)

Determination 3. The Court of Appeal of East Africa in the case of Mukisa Biscuit Manufacturing Company Limited –vs- West End Distributors Limited (1969) E.A. 696, had this to say of a preliminary objection (per Law JA, as he then was); …a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit, examples are objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to suit to refer the dispute to arbitration. 4. In the Nairobi High Court Constitutional Petition No. E260 of 2021 Boniface Akusala & Another – vs- Law Society of Kenya and 12 others (unreported), the court reiterated that: "The validity of any preliminary objection is gauged against the requirement that it must raise pure points of law capable of disposing of the suit at once. It is therefore mandatory for a court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence." 5. Ojwang J (as he then was) captured it more aptly in the case of Oraro –vs- Mbaja (2005) KLR 141, where stated that: “ A preliminary objection correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claim to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection." 6. Having carefully considered the Respondent’s preliminary objection under consideration, I do find that the PO does not raise pure point or points of law. On the issue, I do totally associate myself with the learned counsel for the claimant’s submissions. The Respondent is yet to answer the Claim herein and has therefore filed no document. I am aware of the requirements of section 6 of the Arbitration Act that requires that such an objection be filed at the earliest time possible and before the defence is filed, however we can rely on that section to allow such an objection where there is no evidence that an arbitration clause was inserted in the Claimant’s letter of employment without evidence of the same. Both grounds of the PO are therefore hereby found not to be candidates for a PO and are therefore dismissed with no order as to cots. It is so ordered. DATED SIGNED AND DELIVERED AT NAKURU VIRTUALLY THIS…25TH DAY OF JUNE 2026. ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the virtual presence of: ……N/A………………… for the Respondent/Objector ……N/A………………… for the Claimant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/188/eng@2026-06-25 2

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