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ELRCDismissedNot stated in the judgment· [2015] KEELRC 1090 (KLR)

Halima Mueke Ngei v Simba Coach Limited [2015] KEELRC 1090 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
22 May 2015
LNLINNET NDOLO
1,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that employers cannot dismiss foreign-work claims on jurisdiction unless the facts are undisputed.

What this practically means

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Executive summary

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This ruling of the Industrial Court at Nairobi, delivered by Linnet Ndolo J on 22nd May 2015, determined a preliminary objection raised by the Respondent, Simba Coach Limited, challenging the Court's jurisdiction to entertain the Claimant's employment claim. The Respondent argued that the Claimant had been engaged by Simba Coach (K) Limited, a company incorporated in South Sudan, to perform functions exclusively in South Sudan, so the cause of action arose outside Kenya and the proper forum was the South Sudanese courts. It further relied on Section 4(3) of the Industrial Court Act, invoked the separate legal personality of companies to deny liability of the Kenyan parent entity, and contended that there was no employer/employee relationship, the Claimant being at most an independent contractor paid Kshs. 400,000 for a specific assignment. The Claimant replied that the contract was made, supervised and reported in Nairobi, that the Respondent had entered an unconditional appearance, and that enforcement of any South Sudanese judgment would be difficult given the Respondent's lack of assets there and the absence of a reciprocity agreement under the Foreign Judgment (Reciprocal Enforcement) Act. Applying the Mukisa Biscuits definition of a preliminary objection, the court held that the objection depended on contested factual issues - the nature of the engagement, the relationship between the two companies, and the circumstances of the Claimant's work in and departure from South Sudan - which had to be determined before jurisdiction could be resolved. The preliminary objection was accordingly dismissed, without going into the merits, with costs in the cause.

Key legal issues

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01

Whether a preliminary objection on jurisdiction can succeed where it depends on contested facts

Holding

The objection could not be determined on a pure point of law because the nature of the engagement, the relationship between the two companies, and the circumstances of the Claimant's work in and departure from South Sudan all required determination first.

Reasoning

The court defined a preliminary objection per Mukisa Biscuits as a pure point of law argued on the assumption that all facts pleaded are uncontested. Reading the pleadings, the court identified four factual issues: the nature of the engagement, the relationship between the Respondent and Simba Coach (K) Limited, the circumstances under which the Claimant went to work in South Sudan, and the circumstances of her leaving. These had to be resolved before a jurisdictional ruling could be made, so the objection failed without going into the merits.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded are uncontested; it cannot be raised if any fact has to be ascertained

Court orders

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  1. 1.The Respondent's preliminary objection challenging the jurisdiction of the Court is dismissed
  2. 2.Costs of the preliminary objection to be in the cause
Jurisdiction invoked
Industrial Court Act (No. 20 of 2011), Section 4(3) - territorial jurisdiction of the Industrial Court

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, "Halima Mueke Ngei v Simba Coach Limited [2015] KEELRC 1090 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1090/eng@2015-05-22

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