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ELRCOtherCause No 1266 of 2012· [2017] KEELRC 1936 (KLR)

Isaac Opicho Mukhwana v Diakonia Sweden [2017] KEELRC 1936 (KLR)

Employment and Labour Relations Court of Kenya
13 January 2017
832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that vague foreign-law clauses in an employment contract do not strip it of jurisdiction unless they are clear and unequivocal.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on a preliminary objection dated 11th March 2016 in a claim for wrongful termination of employment filed on 25th July 2012. The Respondent, an international non-governmental organisation, objected that the Court lacked jurisdiction because the Claimant's employment contract dated 11th April 2011, executed in Nairobi but with the place of work at Garowe, Somalia, provided that the applicable law would be that of the place of work. It relied on Clause 4.1 of its Human Resource Handbook, which required conditions of employment to be regulated in accordance with the labour laws of the country where the workplace is situated, and on the jurisdictional authorities of Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia. The Claimant countered that the contract was concluded and consideration paid in Kenya, that the Respondent's main office was in Nairobi, that the contract would be performed partly in Kenya (as evidenced by R&R arrangements), and that the Respondent had submitted to jurisdiction. The Court held that an ouster clause must be clear and unequivocal, and finding nothing in the contract or handbook stripping it of jurisdiction, overruled the preliminary objection with costs in the cause.

Key legal issues

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01

Whether an employment contract performed partly in Somalia with a choice of foreign applicable law ousts the jurisdiction of the Employment and Labour Relations Court

Holding

It does not. The contract was executed in Nairobi, consideration was paid in Kenya, and Clause 4.1 of the Human Resource Handbook made only a general reference to existing labour laws with no specific law or agreement incorporated into the contract; nothing in the contract or handbook clearly and unequivocally stripped the Court of jurisdiction.

Reasoning

The court examined the Respondent's legal form and operations, finding it an international NGO with a regional office in Nairobi where the contract was executed and issued. It applied the principle that an ouster clause must be clear and unequivocal, found no such clause in the contract or Clause 4.1 of the handbook, and concluded the objection was not well taken and overruled it with costs in the cause.

p. 2
02

Whether the Respondent had submitted to the jurisdiction by entering appearance and filing a Memorandum of Response and Counterclaim

Holding

The Claimant argued this, but the court did not found its decision on submission to jurisdiction; the ruling rested on the absence of a clear ouster clause.

Reasoning

The Claimant argued that the Respondent had submitted to jurisdiction by entering an unconditional appearance and filing a Memorandum of Response and Counterclaim, and that the Court had earlier assumed jurisdiction suo moto without challenge. The court, however, disposed of the objection on the clarity of the purported ouster clause rather than on submission.

p. 1

Legal principles established

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  • A jurisdiction ouster clause must be clear and unequivocal.
  • Without jurisdiction, a court has no power to make any step; jurisdiction goes to the heart of the matter and is not a mere procedural technicality.

Court orders

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  1. 1.The preliminary objection raised by the Respondent by notice dated 11th March 2016 is overruled
  2. 2.Costs of the preliminary objection to be in the cause

Authorities

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Cases cited (3)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Kanti & Co Ltd v South British Insurance Co Ltd
    [1981] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the claim; the court determined whether an ouster clause existed in the employment contract and Human Resource Handbook

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, "Isaac Opicho Mukhwana v Diakonia Sweden [2017] KEELRC 1936 (KLR)", Case Analysis (2017). Cause No 1266 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1936/eng@2017-01-13

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