https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2253

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **APPEAL NUMBR E037 OF 2025** **BETWEEN** DAVID KIPYAPEI ...................................................................................APPELLANT **AND** PROTECTIVE CUSTODY LIMITED .......................................................RESPONDENT [An Appeal from the Ruling of Hon. Aloyce Ndege, S.P.M. dated 15th July 2025 in Nakuru C.M.E.L.R.C Cause No. E064 of 2024, between the Parties herein] *Rika J* *Court Assistant: Emmanul Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Maragia Ogaro & Company Advocates for the Appellant* *Njuguna & Partners, Advocates for the Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Appellant filed the Claim at the Trial Court against his former, Employer for unfair termination. 2. Clause 7 of his contract of employment exhibited at the Trial Court, contained an arbitration clause. 3. The Respondent applied to the Trial Courton 24th June 2024, that the Claim is stayed and referred to arbitration, in accordance with clause 7 of the contract. 4. The Trial Court struck out the Claim for want of jurisdiction with no order on the costs, in the Ruling subject matter of this Appeal. 5. The Appellant filed his Memorandum of Appeal dated 16th July 2025, asking the Court to overturn the Ruling of the Trial Court, and reinstate his Claim. 6. He lists 15 Grounds of Appeal, which can be reduced to 1 Ground: that the Trial Court erred in failing to uphold the Appellant’s position, that he did not execute the contract of employment, containing the arbitration clause. 7. Parties agreed that the Appeal shall be considered and determined on the strength of the Record of Appeal and their Submissions. The Appellant filed Submissions dated 7th April 2026. **The Court Finds**: - 1. The Ruling by the Trial Court was based on a contract of employment, which *prima facie*, was executed by the Parties. 2. Section 9 [1] and [2] of the Employment Act, imposes an obligation on an Employer, to issue an Employee a written contract of employment. 3. Where an Employer has exhibited a written contract before the Court, and no other contract is exhibited by the Employee, a rebuttable presumption is to be made, that the exhibited written contract was authored by the Employer, and executed by the Parties, in accordance with the Employment Act. 4. There was no other contract exhibited by the Appellant, contradicting the contract presented by the Respondent. 5. The Appellant merely disputed signing and thumbprinting the document, without providing evidence of forgery, or presenting the valid contract, through which he was employed. 6. Whenever a Party alleges that his / her signature or thumbprint has been forged, this is a serious allegation, involving serious crime. 7. The Party ought to show to the Court, that it has taken active measures to have the relevant investigative state agencies, look into allegations of forgery. It is not sufficient to just dispute authenticity of the signature and the thumbprint, in the expectation that the other Party, will be required to establish validity of execution. 8. The Appellant merely alleged that he did not execute the contract of employment, without suggesting to the Court what steps he took, upon realization that the Respondent had forged the document, to bring the Respondent to account. 9. He stated in his pleadings, that he was employed by the Respondent in the month of January 2021 as a night guard. He omitted to plead if he was employed by word of mouth, or through a written contract. He did not exhibit an alternative contract of employment, to that exhibited by the Respondent. 10. He stated in responding to the Application at the Trial Court, that even if there was an arbitration clause in his contract, the Arbitrator would not have jurisdiction to hear his dispute. 11. He asserted that the E&LRC has exclusive jurisdiction in the matter, pursuant to Article 162 [2][a] of the Constitution, and the E&LRC Act. 12. This was a wrong submission. Arbitration is recognized under Article 159 [2] [c] of the Constitution, as an alternative form of dispute resolution. 13. Exclusive jurisdiction of the Court, does not preclude the Parties in positively rejecting the jurisdiction of the Court, by opting for alternative dispute resolution mechanism. 14. Exclusive jurisdiction is not mandatory jurisdiction. 15. The Appellant appears to have been intent on avoiding arbitration at all costs, a mechanism he had endorsed from the outset, when he executed his contract of employment. 16. There was a catena of judicial authorities invoked by the Trial Court in its Ruling, in support of arbitration. 17. The Ruling cannot be faulted. The Appellant ought to place his dispute before an Arbitrator. 18. If there are issues picked by the Parties, or the Arbitrator on arbitration, which would require Parties return to Court, the door of the Court remains open. The Arbitrator shall make a determination on all the arbitrable matters, relating to the contract of employment, including whether that contract, was validly executed. 19. The Trial Court cannot at the moment, be compelled to assume a jurisdiction which was deprived to it, by the Parties. **IT IS ORDERED**: - 1. **The Appeal is declined.** 2. **No order on the costs.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5] of the E&LRC [Procedure] Rules, 2026, this 30th day of July 2026. James Rika Judge