https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1877

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA** **CAUSE NO. E012 OF 2025** **GILBERT MAVISI SELEBWA ……………………… CLAIMANT** **-VERSUS**- **HARVEST OF HOPE AFRICA ……….................... RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **RULING** 1. **INTRODUCTION** 2. In a memorandum of claim dated 21st October 2025 filed through Ochutsi Munyendo & Co. Advocates the Claimant is seeking for the following reliefs – 3. ***A declaration that the respondent is in breach of contract of the acknowledgment of debt agreement;*** 4. ***Repayment of Kshs1,117,500/=;*** 5. ***Interest on a and b above.*** 6. ***Costs of this suit.*** 7. ***Such further relief or order as this Honourable Court may deem fit.*** 8. Upon service, the Respondent entered appearance through Bogonko, Otanga & Co. Advocates, but there is no response or defence to the claim on record. Further, the Respondent filed a notice of preliminary objection (PO) dated 9th December 2025 raising the following two issues for preliminary determination by the court – 9. ***That this honourable court has no jurisdiction to entertain the claimants claim against the respondent in view of the provision for alternative dispute resolution in the employment contracted dated 23.12.2024 at claused of the said contract.*** 10. ***That the claimant has not exhausted the provision for arbitration before filing the instant suit and this suit should be struck out with costs.*** 11. Since the PO attacked the jurisdiction of the court to hear and determine the cause, on 27th January 2026 the court directed that the PO be heard and determined first and that the same be canvassed by way of written submissions. 12. In support of the PO counsel for the Respondent filed written submissions dated 12th February 2026, alongside a bundle of the cited decisions, while counsel for the Claimant filed written submissions dated 20th February 2026, alongside a list and bundle of the cited decisions. 13. **SUBMISSIONS** 14. Counsel for the Respondent submitted that clause 9 of the contract of employment between the parties dated 23rd December 2025 provided for alternative dispute resolution and that the Claimant did not exhausted the arbitration mechanism before filing the claim in court. 15. Citing ***Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) LTD (1989) KECA 48 (KLR)*** counsel submitted that the arbitration clause in the contract ousted the jurisdiction of this court in the first instance. For ease of reference, the said clause provided that – ***Any dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to arbitration/mediation/negotiation (circle one) in accordance with, and subject to the laws of KENYA***. 16. Citing ***Intra Africa Assurance Company Limited v Owiti & Another (2025) KEHC 4688 (KLR)*** and ***Miathu & 3 Others V Stuart & 2 Others (2025) KEELC 5814 (KLR)***,counsel submitted that the above reproduced clause in the contract ousted the jurisdiction of this court. 17. The court is urged to dismiss the cause at this preliminary stage with costs to the Respondent. 18. Counsel for the Claimant submitted in opposition to the PO. It is submitted that as pleaded in the claim, the Respondent is a football club participating in the Football Kenya Federation Division One, a third tier of the Kenya football league structure. It is submitted that the Respondent engaged the Claimant as a football coach for a period of five years running from 23rd December 2024 at an agreed basic monthly salary of Kshs150,000/=, exclusive of house allowance and other allowances. 19. It is submitted from the bar that the parties subsequently agreed to mutually end the contract whereby the Respondent was to pay to the Claimant a sum of Kshs1,695,000/= in settlement for the termination of the contract. It is submitted that the Respondent eventually paid to the Claimant a sum of Kshs577,500/= leaving a balance of Kshs1,117,500/=. 20. Citing ***Mukhisa Biscuits Manufacturers Ltd V West End Distributors Ltd (1969) EA 696*** and ***Attorney General & Another V Andrew Mwaura Githinji & Another 2016 eKLR***, it is submitted that the PO by the Respondent is untenable. 21. It is further submitted that ***Section 6(1) of the Arbitration Act***, ***1995*** does not oust the jurisdiction of this court as vested by ***Section 12 of the Employment and Labour Relations Court Act***. Citing the Supreme Court in ***Synergy Industrial Credit Ltd V Cape Holdings Ltd (2019) KESC 12 (KLR)***, it is submitted that courts of law remain the ultimate guardians and protectors of justice and hence they cannot be completely shut-off from any process of seeking justice. Further, counsel cited ***Okeyo V Board of Directors HHI Management Services Lted & Another (2024) eKLR*** it is submitted that arbitration is essentially aimed at commercial disputes as opposed to matters employment and labour relations. 22. It is further submitted, again from the bar, that subsequent to entering into the contract, the parties mutually agreed to separate on specific terms and as such the arbitration clause in the contract was no longer applicable. It is submitted that it is on the basis of the mutual separation that the Respondent allegedly made payments to the Claimant in the sum of Kshs577,500/= leaving a balance of Kshs1,117,500/= that is now the subject matter of the cause. It is submitted that there is nothing left of the contract as to be referred for arbitration or any other form of alternative dispute resolution mechanism. 23. It is submitted that since the contract was mutually terminated, as per the evidence on record to that effect, the Respondent is estopped from claiming or alleging otherwise. 24. The court is urged to dismiss the PO with costs to the Claimant. 25. **ANALYSIS & DETERMINATION** 26. The facts and the circumstances leading to the filing of this cause in court are presumably as presented by the Claimant in the memorandum of claim as the same are not disputed by way of a response or defence. As far as the record shows, the Respondent only filed the PO in response to the claim. In the circumstances, the court *prima facie* presumes that the facts as presented by the Claimant are correct and undisputed. 27. The court has examined the contract between the parties dated 23rd December 2024 as availed by the Claimant. It is clear from the contract, in the clause on Alternative Dispute Resolution, as reproduced in an earlier part of this ruling, that the parties intended that any dispute arising therefrom shall be ***“submitted to arbitration/mediation/negotiation (circle one)”***. It is evidently clear from the foregoing that in the event of a dispute the parties intended to have such dispute resolved through ***one*** of the above methods and hence the words in bracket ***“circle one”***. However, none of the three items was ***“circled”*** in the contract availed in court and hence, in my considered view, that clause became superfluous, otiose, and moot. The question becomes – in case of a dispute, did the parties intend to arbitrate, mediate, or negotiate? The contract is clear that the parties ought to have ***“circled one”*** as their preferred mode of alternative dispute resolution. This simply means they had to choose one among the three methods. That was not done and hence that clause became meaningless, ambiguous, and vitiated the contract in that regard. 28. For the above reason, the PO as raised by the Respondent is misplaced and lacking in merit. 29. Further, it is not disputed, as no response was filed, that the contract was mutually terminated. However, the court notes that the alleged acknowledgement of debt filed in court by the Claimant was not executed and or signed by the parties to the contract. 30. Clearly, there are issues of fact that need to be heard and determined by the court, notwithstanding the fact that the court has found and held that the alternative justice resolution mechanism clause in the contract was rendered invalid by the parties themselves for the reasons stated above. 31. Going by the decision in ***Mukhisa Biscuits Manufacturing Company Ltd V West End Distributors Ltd (supra)***, this is not an appropriate cause for determination through the PO as raised by the Respondent. 32. For all the reasons above, the said PO is hereby dismissed for lack of merits. **ORDERS** 1. ***The PO by the Respondent dated 9th December 2025 is hereby dismissed.*** 2. ***The cause shall proceed to hearing.*** 3. ***Costs of the PO to the claimant.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25TH DAY OF JUNE 2026.** **....................................** **DAVID NDERITU** **JUDGE**