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ELRCOtherStatement of Claim dated 17th April 2012, filed 25th April 2012· [2014] KEELRC 1253 (KLR)

Joao Soares v Tuegest Guerma & another [2014] KEELRC 1253 (KLR)

Industrial Court of Kenya
4 July 2014
1,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, Joao Soares, sued Tuegest Guerma and the African Medical and Research Foundation in the Industrial Court by a Statement of Claim filed on 25th April 2012, seeking orders as prayed in the Statement of Claim. The Respondents filed a Notice of Preliminary Objection on 2nd March 2014 contending that the contract of employment was performed in Ethiopia, was governed by Ethiopian law, and that the dispute should be referred to arbitration under Clause 23 of the contract, so the court lacked jurisdiction. The objection was argued by written submissions. The court held that the contract was executed in Kenya by a US citizen and a Kenyan-registered employer, making it a foreign contract of service governed by Part XI of the Employment Act. In the absence of specific jurisdictional provisions in the Industrial Court Act or Rules, the Civil Procedure Act (Sections 14 and 15) applies, allowing suit where the defendant resides, where the plaintiff resides, or where the wrong was done, at the plaintiff's option. Relying on Halsbury's Laws of England and United India Insurance Co. Ltd v East African Underwriters, the court held that a choice of Ethiopian law could not deprive the employee of mandatory protections. Both parties and the evidence were in Nairobi and the Claimant would be prejudiced by trial in Ethiopia. The court also declined to refer the matter to arbitration, restating its earlier reasoning that the Industrial Court Act and Labour Relations Act deliberately omit arbitration in employment cases. The preliminary objection was dismissed with costs to the Claimant.

Key legal issues

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01

Whether an express choice of Ethiopian law ousts the jurisdiction of the Kenyan Industrial Court

Holding

No. The choice of applicable law does not deprive an employee of the protection of mandatory rules of the law otherwise applicable; suit may be filed where the defendant or plaintiff resides or where the wrong was done, at the plaintiff's option

Reasoning

The contract was executed in Kenya by a US citizen and a Kenyan-registered employer; both parties and the evidence are in Nairobi. Under Sections 14 and 15 of the Civil Procedure Act, the plaintiff may sue where the defendant resides, where he himself resides, or where the wrong was done. Halsbury and United India Insurance confirm an employee cannot be deprived of protection by choice of law. Declining jurisdiction would greatly prejudice the Claimant.

p. 3
02

Whether the dispute should be referred to arbitration under Clause 23 of the contract

Holding

No. Employment disputes are excluded from the Arbitration Act's contemplation and the Respondents' invocation of Kenyan arbitration law undermined their Ethiopian-law argument

Reasoning

The Industrial Court Act and Labour Relations Act deliberately omit reference to arbitration in employment cases, showing legislative intent to exclude such disputes from arbitration. Further, the Respondents' willingness to apply the Kenyan Arbitration Act showed they were applying Kenyan law where convenient, indicating a desire for procedural advantage rather than genuine preference for Ethiopian courts.

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03

Whether the Respondents showed a strong reason for avoiding Kenyan jurisdiction

Holding

No. The convenience factors favour Kenya - parties and evidence in Nairobi, Claimant not an Ethiopian resident

Reasoning

Applying the United India Insurance factors, the court found the parties reside in Kenya, the evidence is in Nairobi, and the Claimant would be greatly prejudiced if referred to Ethiopian courts. The Respondents were seeking procedural advantage, not genuine trial in Ethiopia.

p. 3

Legal principles established

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  • A contract made in Kenya to be performed outside Kenya is a foreign contract of service governed by Part XI of the Employment Act
  • In the absence of specific jurisdictional provisions in the Industrial Court Act or Rules, the Civil Procedure Act applies to Industrial Court disputes
  • Employment contracts are not commercial contracts for which the Arbitration Act was intended

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the Claimant

Authorities

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Legislation

  • Civil Procedure ActSections 14 and 15
  • Employment ActPart X1
  • Industrial Court Actnot specified
  • Labour Relations Actnot specified
  • Arbitration Actnot specified
  • Rome Convention (OJ C282; 31.10.80)pl P.25

Cases cited (6)

  • Savings and Loan Kenya Limited V Mayfair Holdings Limited
    C.A. 152 of 2006
  • National Bank of Kenya Ltd V Pipe Plastic Samkolit (K) & Another
    (2001) KLR 112
  • Credit Corporation & Another V Air Al-Faraj Ltd
    C.A 29 OF 1999
  • United India Insurance Co. Ltd V East African Underwriters (Kenya) Ltd
    [1985] KLR 898
  • Areva T D India Limited V Priority Electrical Engineers and another
    CA 103 of 2011
  • Dr. Kennedy Amuhaya Manyonyi V African Medical and Research Foundation
    [2014] eKLR
Jurisdiction invoked
Industrial Court Act; Civil Procedure Act Sections 14 and 15 applied to Industrial Court disputes

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, "Joao Soares v Tuegest Guerma & another [2014] KEELRC 1253 (KLR)", Case Analysis (2014). Statement of Claim dated 17th April 2012, filed 25th April 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1253/eng@2014-07-04

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