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ELRCStruck OutNot stated in the judgment· [2015] KEELRC 56 (KLR)

Mary Wairimu Moturi v Emirates Group [2015] KEELRC 56 (KLR)

Employment and Labour Relations Court
18 December 2015
654 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a claim because the worker's contract chose Dubai courts, showing forum clauses in employment contracts are enforced.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 16th November 2015 contending that the Employment and Labour Relations Court lacked jurisdiction because the Claimant's employment contract provided that the agreement be construed under the laws of Dubai, U.A.E, with the courts of Dubai having exclusive jurisdiction. The Respondent, a foreign company with its principal place of business in Dubai, argued the contract was executed in Dubai and performed wholly there. The Claimant countered that her duties as Security Coordinator required her to fly to various countries and that she performed part of her duties in Kenya; she relied on Sections 83 and 89 of the Employment Act, 2007, contending the contract was neither a foreign contract nor drawn in accordance with Section 83, and that the Respondent had submitted to jurisdiction by entering appearance without protest. In a ruling delivered on 18th December 2015, Linnet Ndolo J framed a single issue: whether the Court had jurisdiction to entertain the claim. The Court held that the contract was neither a foreign contract nor a contract made abroad as defined in the Employment Act, 2007, and that the parties' express choice of Dubai law and exclusive Dubai jurisdiction was clear and unequivocal, leaving no room for interference. The preliminary objection was upheld and the Claimant's claim was struck out with no order for costs.

Key legal issues

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01

Whether the Court has jurisdiction over the Claimant's claim despite the contract's Dubai forum and governing law clause

Holding

The preliminary objection was upheld; the Court lacks jurisdiction and the claim was struck out

Reasoning

The Court read the employment contract and found a clause titled 'other conditions' providing that the agreement shall be construed under the laws of Dubai, U.A.E, with the courts of Dubai having exclusive jurisdiction. The Court held the parties' intention on applicable law and jurisdiction was clear and unequivocal, leaving no room for interference, and therefore declined jurisdiction notwithstanding the Claimant's arguments that part of the duties were performed in Kenya and that the contract did not qualify as a foreign contract under Sections 83 and 89 of the Employment Act.

p. 2
02

Whether the contract was a foreign contract or contract made abroad under the Employment Act, 2007

Holding

The Court found the contract was neither a foreign contract nor a contract made abroad as defined in the Employment Act, 2007, and was therefore guided by the contract's own jurisdiction clause

Reasoning

The Court's reading of the contract led it to conclude it fell outside the statutory definitions relied upon by the Claimant. Having so found, the dispute resolution clause in the contract itself became decisive. This finding on characterisation was the analytical bridge to the ultimate conclusion that the parties' express choice of Dubai law and exclusive Dubai jurisdiction bound the Court.

p. 2

Legal principles established

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  • Where an employment contract contains a clear and unequivocal clause conferring exclusive jurisdiction on foreign courts and choosing foreign law, this Court lacks jurisdiction to entertain claims under that contract

Court orders

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  1. 1.The preliminary objection raised by the Respondent is upheld
  2. 2.The Claimant's claim is struck out with no order for costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (impugned by contractual forum selection clause in favour of the courts of Dubai)

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, "Mary Wairimu Moturi v Emirates Group [2015] KEELRC 56 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/56/eng@2015-12-18

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