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Court of AppealDismissedCivil Appeal No. 111 of 2006· [2011] KECA 204 (KLR)

D. P. Bachheta v Government of the United States of America [2011] KECA 204 (KLR)

Court of Appeal
8 July 2011
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
2,100 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that Kenyan law governs a contract made and performed in Kenya, and foreign law must be specifically pleaded and proven.

What this practically means

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Executive summary

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The appellant, formerly a warehouseman employed by USAID in Kenya from 1965, sued in the High Court in 1992 alleging unlawful termination of his employment contract. Consent judgment was entered on liability in September 2001, leaving only the assessment of damages. In April 2002 the appellant applied under former Order XIV Rule 2 Civil Procedure Rules for the determination of a point of law - whether Kenyan or American law governs the assessment of his damages - before the reception of evidence. Aluoch, J. dismissed the application on 17th September 2004, finding the contract stipulated payment in Kenya shillings. The appellant appealed, contending the learned judge misdirected herself on the proper law of the contract. The Court of Appeal, in a unanimous judgment, dismissed the appeal. First, it held that former Order XIV Rule 2 applies only before evidence is given and where the question of law is discernible from the pleadings; a motion made eleven years after suit and six months after consent judgment on liability fell outside the rule. Second, foreign law is a matter of fact that must be specifically pleaded with particulars of the statute and proved by expert evidence; the appellant did neither, and relied on unadmitted documents. Third, since the contract was made and performed in Kenya, was paid in local currency, and contained no choice of law or exclusive jurisdiction clause, there was no conflict of laws: the proper law of the contract is Kenyan law and the question posed was theoretical. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Scope of former Order XIV Rule 2 CPR on determining questions of law before evidence

Holding

The rule applies only before evidence is given and where the question of law arises from the pleadings; it was not available where the application was made about 11 years after suit and over 6 months after consent judgment on liability, leaving only assessment of damages

Reasoning

The court noted the rule's wording and the commentary to the identical English Order 25 rule 2, which confines the procedure to cases adequately raised in the pleadings and not yet come on for trial. Since the appellant's claim save assessment of damages had been determined by consent judgment, the application fell outside the rule.

p. 3
02

Pleading and proof of foreign law

Holding

Foreign law is a matter of fact that must be specifically pleaded with particulars of the statute and proved by expert evidence; documents annexed to an affidavit but not admitted in evidence cannot establish foreign law

Reasoning

The court applied the pleading standard from Bullen & Leake & Jacob and held the appellant had not pleaded American law, specifying the statute or State, and had relied on documents neither accepted by the respondent nor admitted in evidence. The question of law therefore did not arise from pleaded facts.

p. 3
03

Proper law of the employment contract

Holding

The proper law of the contract is Kenyan law; absent an express choice of law and exclusive jurisdiction clause, there is no conflict of laws and the question posed was theoretical

Reasoning

The contract was made and performed in Kenya between USAID operating in Kenya and a non-US citizen resident in Kenya, salary was paid in local currency, the claim was computed in Kenya shillings and the Kenyan High Court's jurisdiction was invoked. The two clauses relied on did not expressly or impliedly make USA law applicable.

p. 4

Legal principles established

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  • A preliminary point of law under former Order XIV Rule 2 CPR applies only before any evidence is given and only where the question of law is discernible from the pleadings; it cannot be invoked after judgment on liability has been entered
  • It is a wrong exercise of discretion to allow a question of law to be determined as a preliminary point where facts beyond the pleadings must be ascertained or the law is unsettled or obscure
  • Foreign law is a matter of fact which must be specifically pleaded with full particulars of the statute and proved at trial by expert evidence
  • Where a contract is made and performed in Kenya, is paid in local currency, and contains no express choice of law or exclusive jurisdiction clause, the proper law of the contract is Kenyan law and no conflict of laws arises

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4973 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (no specific constitutional/statutory provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "D. P. Bachheta v Government of the United States of America [2011] KECA 204 (KLR)", Case Analysis (2011). Civil Appeal No. 111 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/204/eng@2011-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.