Dede Esi Annie Amanor-Wilks v Action Aid International [2014] KEELRC 439 (KLR)
The bottom line
#Kenya's employment court ruled that a foreign law clause cannot block Kenyan unfair termination claims for jobs performed in Kenya, then dismissed the executive's case.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction despite a foreign choice-of-law clause
The Industrial Court of Kenya had jurisdiction notwithstanding Clause 30 choosing the laws of England and Wales, because unfair termination law under the Employment Act 2007 is a mandatory law embodying labour standards as international public policy
The Court restated its earlier ruling: party autonomy in choice of law is subject to mandatory state laws and international public policy. Labour law is highly territorial and the lex loci laboris applies. The Claimant held a Kenyan work permit, was resident in Kenya and performed the contract from Kenya, so the Kenyan unfair termination provisions applied. The Court found no substantive difference between Kenyan and English employment law on unfair termination.
Validity of reasons for termination
Two of the three grounds were valid: the negative attitude/incompatibility ground and the inappropriate campaign letter; the allegations over the Gambia contract amounted to insubordination; but the allegations on the Cameroon and Guinea Bissau exit plans and RTEP Review Plan were not made out
The Court found the Claimant had an attitudinal problem evidenced by the 180 degrees appraisal, her attacks on Jellema and the CEO, and her own dossier. The Gambia contract signing despite the CEO's instructions amounted to non-verbal insubordination. However, on the office closures and RTEP Review, the Respondent led no evidence beyond the CEO's word that the Claimant refused to implement collective decisions.
Incompatibility and insubordination as fair reasons under Section 45
The Claimant was incompatible and insubordinate; termination was validly based on incompatibility and conduct under Section 45 of the Employment Act 2007
Drawing on South African authority (Fijen, Jabari, Wright) and the concept of incompatibility, the Court held the Claimant, a sophisticated executive, could not work harmoniously with her colleagues and did not fit the corporate culture. Her conduct over the Gambia contract, her language toward the CEO and her persistent refusal to engage constituted persistent insubordination, itself a valid ground for summary dismissal under Section 44(4)(d) and (e).
Fairness of procedure
The Respondent did not fully meet fair procedure requirements, but the Court was not compelled to find the termination procedurally unfair given the weaknesses in the HR Manual and the Claimant's own obstructive conduct
The disciplinary process was frozen during the Board's investigation and the CEO did not resume a full hearing with a Special Investigation Panel before the 5th March 2010 termination. However, the Court held the employee's own elusiveness, delaying tactics and last-minute grievance frustrated the process; the employment relationship was irreparable and termination by e-mail was acceptable in an international organization.
The Counter-claim
The Counter-claim for GB Sterling Pounds 20,696 fails; the school fees and housing were paid under contractual obligation and are not refundable
The contract and HR Manual provided for reimbursement of 90% of school fees for dependent children and housing provisions for expatriate staff. There was no evidence these payments were conditional on faithful service. Advance payment was made on the Respondent's contractual obligation, and such benefits cannot be clawed back on account of the employee's misconduct, just as salaries cannot be refunded.
Legal principles established
#- Labour standards are matters of international public policy and are highly territorial; the lex loci laboris applies to labour relationships created within a state's territory, and a choice of foreign law clause does not bar the Kenyan Industrial Court from assuming jurisdiction over unfair termination
- Incompatibility is a fair ground for termination under Section 45(2)(b) of the Employment Act 2007 where the employee's conduct causes an irreparable breakdown of the employment relationship, particularly for sophisticated employees
- Insolence is a form of insubordination, and repeated acts of insubordination can lead to a finding of incompatibility
- Kenyan law does not permit instant dismissal without a hearing; the mandatory hearing requirement under Sections 41 and 45 of the Employment Act 2007 applies irrespective of the gravity of the offence, and employer manuals must be read consistently with it
- In assessing procedural fairness, the Court considers not only the employer's adherence to procedure but also the employee's conduct in making procedural justice possible
- Benefits such as school fees and housing paid by an employer in performance of contractual obligations cannot be recovered from an employee dismissed for misconduct, just as earned salaries cannot be refunded
Court orders
#- 1.Termination of the Claimant's contract of Employment was fair
- 2.The Claim is rejected in its totality
- 3.The Counter-claim is rejected
- 4.The Claimant shall meet the costs of this Cause
- Jurisdiction invoked
- Assumed jurisdiction on the maxim lex loci laboris; the Court held that the choice of English law in Clause 30 of the contract did not oust the Industrial Court of Kenya's jurisdiction over a contract performed in Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dahiya v Medecins Sans Frontieres (MSF) (Cause E569 of 2024) [2025] KEELRC 1801 (KLR)[2025] KEELRC 1801 (KLR)19 Jun 2025
- Ochieng v Rhombus Concrete (Cause E057 of 2024) [2025] KEELRC 1010 (KLR)[2025] KEELRC 1010 (KLR)28 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Dede Esi Annie Amanor-Wilks v Action Aid International [2014] KEELRC 439 (KLR)", Case Analysis (2014). Industrial Court Cause Number 635 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/439/eng@2014-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.