Nyambura v Ziara Dairies Limited (Civil Case E004 of 2025) [2026] KEHC 8515 (KLR) (17 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CIVIL CASE NO. E004 OF 2025** **BETWEEN** **LUCY NYAMBURA……………………………………………** **PLAINTIFF/RESPONDENT** **AND** **ZIARA DAIRIES LIMITED.….………………………………. DEFENDANT/APPLICANT** **RULING** 1. The defendant/applicant moved the court through a Notice of Motion dated the 26th day of February 2026, which was brought under section 6 of the Arbitration Act. They are seeking the following orders: 2. That the application be certified as urgent and be heard exparte in the first instance. 3. Pending the hearing and determination of this application, there be a stay of any other proceedings save for this application. 4. The plaintiff do pay to the defendant the costs of this application. 5. The application was based on the following grounds: 6. The plaintiff had an engagement with the defendant to provide consultancy services. 7. The terms thereof were contained in an agreement dated 1st November 2023, which governed the said relationship. 8. The agreement had a clause providing for dispute resolution, which provided that any dispute arising between the parties and not settled in full by mutual agreement shall be referred to arbitration by a single arbitrator to be appointed by agreement between the parties or, in default of such agreement, within thirty (30) days of the notification of such dispute by either party. Each party was to bear its own costs of arbitration unless the arbitrator directs otherwise. 9. The plaintiff filed suit against the defendant on the 20th January, 2025, seeking various orders, including a declaration that the termination of the consultancy agreement was unlawful, unprocedural and in breach of contract. 10. The plaintiff filed the suit in regard to the dispute resolution mechanism provided for in the agreement between the parties. 11. Article 159 (2) (c) of the Constitution requires the court to promote an alternative dispute resolution mechanism. 12. The plaintiff/respondent opposed the application and advanced the following arguments: 13. That it is not disputed that she was engaged by the defendant as a consultant pursuant to a consultancy agreement commencing on or about the 1st November 2023. 14. That the said consultancy engagement was expressly stated to be for a fixed period of six (6) months ending in or about April 2024, subject to extension only upon mutual agreement of the parties. 15. That the copy of the consultancy agreement that was in the respondent’s possession and which governed her engagement with the defendant was never executed or signed by the defendant. 16. That in any event, the consultancy arrangement contemplated under the said document was for a defined term running from November 2023 to April 2024. 17. That the said period lapsed and expired in or about April 2024. 18. That notwithstanding the expiry of the said consultancy period, the defendant continued to retain my services and I continued performing my duties for the defendant beyond April 2024. 19. The respondent continued to render services to the applicant up to 31st July 2024, when the latter communicated that her services would no longer be required. 20. The events giving rise to the present dispute occurred after the expiry of the consultancy period contemplated under the said agreement. 21. By the time the dispute arose in July 2024, the consultancy agreement relied upon by the applicant had already run its course and was no longer operative. 22. There was no written extension or renewal of the said agreement executed between the parties after April 2024. 23. The defendant has not produced any document demonstrating a mutual written extension of the consultancy agreement as contemplated in the document they rely upon. 24. The application seeking to stay these proceedings is therefore misconceived and intended to delay the determination of the dispute before this honourable court. 25. In the interest of justice, this honourable court ought to decline the application and allow the suit to proceed to hearing. 26. Section 6 of the Arbitration Act provides: 27. ***A court before which proceedings are brought in a matter which is the subject*** ***of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—*** 28. ***that the arbitration agreement is null and void, inoperative or incapable of being performed; or*** 29. ***that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.*** 30. ***Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.*** 31. ***If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.*** 32. The applicant argues that their dispute falls under an arbitration agreement. Conversely, the respondent claims that the consultancy agreement, which was in their possession and governed her engagement with the defendant, was never signed or executed by the applicant. She exhibited a copy of the agreement between her and the applicant (LN1). The applicant had not signed the copy. However, the copy exhibited by the applicant was signed by both parties. The respondent’s argument has no basis. 33. In the agreement, the parties agreed as follows: ***Any dispute arising between the parties hereto and not settled in full by mutual agreement of the parties shall be referred to arbitration by a single arbitrator to be appointed by agreement between the parties or, in default of such agreement, within thirty (30) days of the notification of such dispute by either party. Each party will bear their own cost of arbitration unless the arbitrator otherwise directs.*** 1. I therefore find that the dispute before the court is subject to an arbitration agreement. 2. The applicant entered an appearance on the 28th July 2025. The application for stay of proceedings was filed on the 26th day of February 2026. The application is therefore in contravention of section 6 (1) of the Arbitration Act, which provides: ***A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—*** *[Emphasis added]* 1. The applicant, having failed to comply with the timeline in subsection 1 or to acknowledge the claim, cannot have the application granted. The same is dismissed with costs. **Delivered and signed at Nyandarua, this 17th day of June 2026.** **KIARIE WAWERU KIARIE** **JUDGE**