https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/188

Chemwachar v Collindale Security Ltd (Employment and Labour Relations Cause E104 of 2025) [2026] KEMC 188 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 188 (KLR) Republic of Kenya In the Nakuru Law Courts Employment and Labour Relations Cause E104 of 2025 PA Ndege, SPM June 25, 2026 Between Collins Kwemoi Chemwachar Claimant and Collindale Security Limited Respondent Ruling (In respect to the preliminary objection by the Respondent dated 9th September 2025 challenging the jurisdiction of this court by reason of an alleged arbitration clause contained in a Letter of Employment dated 18/08/2023 and further that the suit offends the doctrine of exhaustion). Background. 1.The preliminary objection by the Respondent is dated 8/09/2025. It is premised on two main grounds. The Respondent hold that the jurisdiction of this court is ousted by reason of an alleged arbitration clause contained in a Letter of Employment dated 18/08/2023 and further that the suit offends the doctrine of exhaustion. The PO was canvassed by way of written submissions. Issues for determination 2.The major issue for determination arising from the submissions is whether the Defendant’s preliminary objection meets the threshold set out in the Mukisa Biscuits case. Dependent on the finding on the 1st issue, the next one would be whether it is merited. 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-NDEGESENIOR PRINCIPAL MAGISTRATEIn the virtual presence of:……N/A………………… for the Respondent/Objector……N/A………………… for the Claimant