Joao Soares v Tuegest Guerma & another [2014] KEELRC 1253 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an express choice of Ethiopian law ousts the jurisdiction of the Kenyan Industrial Court
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
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.
Whether the dispute should be referred to arbitration under Clause 23 of the contract
No. Employment disputes are excluded from the Arbitration Act's contemplation and the Respondents' invocation of Kenyan arbitration law undermined their Ethiopian-law argument
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.
Whether the Respondents showed a strong reason for avoiding Kenyan jurisdiction
No. The convenience factors favour Kenya - parties and evidence in Nairobi, Claimant not an Ethiopian resident
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.
Legal principles established
#- 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
#- 1.The preliminary objection is dismissed with costs to the Claimant
- Jurisdiction invoked
- Industrial Court Act; Civil Procedure Act Sections 14 and 15 applied to Industrial Court disputes
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.
- Kamurasi v Absa Bank Kenya PLC & another (Employment and Labour Relations Cause E612 of 2021) [2023] KEELRC 3229 (KLR)[2023] KEELRC 3229 (KLR)7 Dec 2023applied
- Musee v International School Of Kenya Ltd (Cause 60 of 2020) [2023] KEELRC 2102 (KLR)[2023] KEELRC 2102 (KLR)19 Sept 2023followed
Cite this brief
#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.