Scholastica Anyone Kilaha v Equity Bank Kenya Limited [2018] KEELRC 87 (KLR)
The bottom line
#Kenyan courts can hear employment claims for Kenyans working abroad if the employment contract was signed and anchored in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has territorial jurisdiction over employment performed in South Sudan
The court has jurisdiction because the contract of employment was secured in Kenya for a Kenyan citizen to work outside Kenya, protected under Kenyan law, including sections 86 and 89 of the Employment Act.
The claimant's contract was signed in Kenya and addressed in Nairobi, with statutory deductions under NSSF, NHIF and PAYE effected in Kenya, a pension scheme under the Retirement Benefits Act, and medical cover and leave allowance denominated in Kenya shillings. Section 10(3)(f) of the Employment Act requires specific terms for employees working outside Kenya, and sections 86 and 89 secure enforcement of such contracts in Kenya. The court distinguished the Sudan Catholic Bishops case, where the parties had agreed Sudanese law would apply.
Whether the claimant was employed by the respondent or by its South Sudan subsidiary
The claimant's evidence pointed to Equity Bank Kenya Limited as the principal employer, with the transfer letterhead reading Equity Bank (Kenya) Limited and benefits accruing under Kenyan schemes.
The letter of transfer dated 15th March 2016 noted the transfer was to Equity Bank Kenya Ltd (EBKL) on existing terms. The claimant accrued leave, pension and medical benefits recognised by EBKL. The South Sudan entity being a subsidiary of the respondent, the claimant argued the respondent was the principal employer. The court accepted the contract's Kenyan anchorage in determining jurisdiction.
Whether an ouster clause or foreign forum defeats Kenyan jurisdiction
Applying the Universal Pharmacy principles, the court may assume jurisdiction where the contract is connected to Kenya and it is convenient to hear the matter locally.
Relying on Universal Pharmacy (K) Limited v Pacific International Lines, which adopted United India Insurance Co. Ltd v E.A. Underwriters, Kenya courts have discretion to assume jurisdiction notwithstanding a clause conferring jurisdiction on a foreign court, and the onus on the party avoiding Kenyan jurisdiction is a heavy one. Here the benefits under the contract were secured under Kenyan law, so the court would hear the matter.
Legal principles established
#- Where a Kenyan citizen's contract of employment is made and secured in Kenya for work outside Kenya, with benefits protected under Kenyan law, the Employment and Labour Relations Court has jurisdiction over claims arising from that contract.
- Rights and remedies for breach of a lawful contract of service made outside Kenya may be enforced in Kenya under section 89 of the Employment Act.
Court orders
#- 1.The preliminary objection by the respondent is dismissed
- 2.Costs to the claimant
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution, 2010 read with Section 4 of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Scholastica Anyone Kilaha v Equity Bank Kenya Limited [2018] KEELRC 87 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/87/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.