Isaac Opicho Mukhwana v Diakonia Sweden [2017] KEELRC 1936 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the Respondent had submitted to the jurisdiction by entering appearance and filing a Memorandum of Response and Counterclaim
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.
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.
Legal principles established
#- 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
#- 1.The preliminary objection raised by the Respondent by notice dated 11th March 2016 is overruled
- 2.Costs of the preliminary objection to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.