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ELRCDismissedNot stated in judgment· [2014] KEELRC 1307 (KLR)

Godfrey Kitoto Ochieng & 6 others v Hydrobuild Construction Company Limited & another [2014] KEELRC 1307 (KLR)

Industrial Court of Kenya
17 September 2014
MMM. Mbaru
1,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts can hear employment claims involving work done abroad, and employers who fail to keep or produce records lose the argument.

What this practically means

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Executive summary

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The respondents, Hydrobuild Construction Company Limited and John Otieno Ooko, raised a preliminary objection in the Industrial Court contending that the court lacked jurisdiction because the employment contracts were executed in South Sudan, where the respondents' company was incorporated, and that the claim was an abuse of process. The claimants countered that the respondents were also incorporated in Kenya, that the contracts were issued in Kenya with a provision relocating the claimants to South Sudan, and that wages and advances had Kenyan connections. The court directed the claimants to file a certified Registrar of Companies search and the respondents to produce the original employment contracts. The claimants complied; the respondents did not, despite over 45 days. Relying on the Lillian S and Macharia decisions on jurisdiction, Articles 162(2)(a) of the Constitution and sections 4 and 12 of the Industrial Court Act, the court held it had exclusive original jurisdiction over employment disputes. Section 74 of the Employment Act obliges employers to keep employment records, and failure to produce them is construed in the employee's favour, supporting the inference that the withheld contracts were not favourable to the respondents. Section 89 of the Employment Act allows enforcement of contracts made outside Kenya. Finding no merit in the objection, the court dismissed it with costs in the cause.

Key legal issues

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01

Jurisdiction over foreign-executed employment contracts

Holding

The Industrial Court has jurisdiction where the respondent company is incorporated in Kenya and the contracts were issued in Kenya, notwithstanding work relocation to South Sudan.

Reasoning

Article 162(2)(a) and sections 4 and 12 of the Industrial Court Act confer jurisdiction over employment disputes. Part XI of the Employment Act, particularly section 89, permits enforcement of contracts made outside Kenya. The respondents failed to produce the original contracts despite directions, and the Registrar of Companies certified incorporation in Kenya, undermining the objection.

p. 4
02

Adverse inference from failure to produce employment records

Holding

Failure to produce contracts the employer is statutorily bound to keep supports an inference the records are unfavourable to the employer.

Reasoning

Section 74 Employment Act makes record-keeping mandatory; the respondents ignored a court direction to produce the original contracts for over 45 days. Read with Rule 14(7) and (8) of the Industrial Court Procedure Rules, the court drew the inference that the withheld records were not in the respondents' favour.

p. 2

Legal principles established

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  • Section 74 of the Employment Act obliges employers to keep employment records; failure to produce them in litigation is construed against the employer.
  • A court seized of a question of jurisdiction must address it before other issues.

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1), (2) and (3)
  • Industrial Court ActSections 4, 12, 27
  • Employment ActSections 74, 83, 85, 89 and Part XI
  • Industrial Court Procedure RulesRule 14(7) and (8)

Cases cited (2)

  • Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Industrial Court Act, sections 4 and 12

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Godfrey Kitoto Ochieng & 6 others v Hydrobuild Construction Company Limited & another [2014] KEELRC 1307 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1307/eng@2014-09-17

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