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ELRCDismissedNot stated in the extract· [2017] KEELRC 1699 (KLR)

Shadrack Wachira Gikonyo v Abt Associates Inc [2017] KEELRC 1699 (KLR)

Employment and Labour Relations Court
27 February 2017
HWHellen Wasilwa
2,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court can hear employment disputes for work done abroad if the employer already accepted the court's jurisdiction by responding without reservations.

What this practically means

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Executive summary

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The Respondents raised a Notice of Preliminary Objection dated 4 April 2016 contending that the Employment and Labour Relations Court lacked jurisdiction because the suit fell outside its territorial limits: the employment contract was governed by the laws of South Sudan and was exclusively performed there, the Claimant having been based in Juba. Relying on the lex loci laboris principle and authorities including Dede Asi Annine Amanor-Wilks v Action Aid International, Raytheon Aircraft Credit Corporation and Bonython v Commonwealth of Australia, the Respondents urged that labour law is highly territorial and Kenyan courts could not assume jurisdiction over matters within South Sudan. The Claimant opposed, arguing that the Respondents had waived the jurisdictional objection by filing an unconditional Memorandum of Appearance on 19 March 2014 and a Response to the Claim, citing Kanti and Company Limited v South British Insurance Company Limited, Petra Development Services Limited and Universal Pharmacy (K) Limited. The Claimant further relied on the balance of convenience: the contract was executed in Nairobi, the Claimant resided in Nairobi, the Respondents were served at their Ngong Road offices in Kenya, and the Respondent had evacuated the Claimant to Kenya during the 2014 war in Sudan. The Court accepted that the lex loci laboris principle pointed to South Sudanese law but held that the Respondents had submitted to the Court's jurisdiction by their unconditional appearance and that the balance of convenience favoured Kenya. The Preliminary Objection was dismissed and the case ordered set down for hearing.

Key legal issues

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01

Lex loci laboris and territorial limits of labour law

Holding

The principle applies and, on its face, the law of South Sudan was to govern the employment relationship since the Claimant was based in Juba

Reasoning

The Court accepted the Respondents' authorities that labour law is highly territorial and that the applicable law is that of the country where the employee is based. The contract was executed in Kenya but the Claimant was informed he would be based in Juba, South Sudan, so the lex loci laboris pointed to South Sudanese law.

p. 4
02

Waiver of jurisdiction by unconditional appearance

Holding

The Respondents, by entering an unconditional Memorandum of Appearance and filing a Response, submitted to the jurisdiction of the Kenyan Court and cannot later challenge it

Reasoning

The Court applied Kanti and Company Limited v South British Insurance Company Limited and later similar authorities, holding that a defendant who enters an unconditional appearance confers jurisdiction on the Court and acquires a vested right in the plaintiff which cannot be unilaterally withdrawn.

p. 3
03

Balance of convenience in forum determination

Holding

The balance of convenience favours hearing the matter in Kenya

Reasoning

The contract was executed in Kenya, the Claimant resides in Kenya, the Respondents have an office in Kenya along Ngong Road where they were served, and the Respondent had evacuated the Claimant to Kenya in 2014. The Court followed American Express International Banking Corporation v Atul on convenience of forum.

p. 4

Legal principles established

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  • Filing an unconditional Memorandum of Appearance amounts to submission to the jurisdiction of the Court and a waiver of any objection to jurisdiction
  • Even where the lex loci laboris points to a foreign law, the Court may retain jurisdiction where the parties submitted and convenience favours the Kenyan forum

Court orders

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  1. 1.The Preliminary Objection dated 4.4.2016 is dismissed for lack of merit
  2. 2.The case to be set down for hearing

Authorities

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Legislation

  • Employment Actprovision on foreign contracts of service (section not specified)

Cases cited (9)

  • Dede Asi Annine Amanor-Wilks vs. Action Aid International
    (2014) eKLR
  • Todd vs. British Midland Airways Limited
    (1978) ICR 959
  • Raytheon Aircraft Credit Corporation and Another vs. Air All Faraj
    (2005) eKLR
  • Bonython vs. Commonwealth of Australia
    (1950) UKPCHCA 3, 486, 498
  • Kanti and Company Limited vs. South British Insurance Company Limited
    (1981) eKLR
  • Petra Development Services Limited vs. Evergreen (Singapore) PTE Limited and Another
    (2014) eKLR
  • Universal Pharmacy (K) Limited vs. Pacific International Lines (PTE) Limited and Another
    (2015) eKLR
  • United India Insurance Company Limited and Others vs. East African Underwriters (K) Limited
    (1985) eKLR
  • American Express International Banking Corporation vs. Atul
    (1990-1994) EA 10
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; Employment Act provisions on foreign contracts of service invoked by the Claimant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Shadrack Wachira Gikonyo v Abt Associates Inc [2017] KEELRC 1699 (KLR)", Case Analysis (2017). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1699/eng@2017-02-27

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