Captain (RTD) Charles K.W. Masinde v Intergovernmental Authorityon Development [2018] KEELRC 520 (KLR)
The bottom line
#A Kenyan court ruled a foreign-law clause in an employment contract doesn't block Kenyan courts, but only small contract-based claims succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction where the contract was signed in Kenya, performed in Somalia, but subjected to Djibouti law
The court has jurisdiction; the Djibouti choice-of-law clause did not oust Kenyan jurisdiction.
The court distinguished choice of law from choice of jurisdiction, following Dorcas Kemunto Wainaina v IPAS. The contract was signed at the respondent's Nairobi office and the respondent has a local office within the court's jurisdiction, guaranteeing enforceability of any decree. Djibouti law would apply as the governing law, but the Kenyan court retained authority to adjudicate.
Whether the summary termination was wrongful and unfair
The summary dismissal was justified under Clause 10 of the contract given the claimant's habitual absenteeism and poor performance; unfair termination under Djibouti law was not proved.
The termination letter cited late reporting, minimal presence at Mogadishu and poor performance. The claimant's explanations were found unsatisfactory on a balance of probability. Clause 10 allowed IGAD summary termination with or without reason. The court declined to apply Kenyan unfair-termination law as the parties chose Djibouti law, under which no unfair termination was proved.
Whether the claimant is entitled to the prayers sought
Only refund of proved travel expenses and pro rata leave days were awarded, grounded on contract clauses, not Kenyan law.
Because the dismissal was justified and Kenyan law did not govern, claims for salary shortfall, notice pay and 12 months' compensation failed. Travel expenses proved by receipts were recoverable under clause 14 and leave days under clause 5 of the contract, totaling $7,814.08.
Legal principles established
#- Choice of foreign law in a contract is not synonymous with choice of jurisdiction; a foreign governing-law clause does not oust the jurisdiction of Kenyan courts.
- A court exercising jurisdiction may do so on the basis of the foreign law chosen by the parties.
Court orders
#- 1.Judgment entered for the claimant in the sum of $7,814.08 being refund of travel expenses ($5,698.70) and 10 leave days on pro rata basis ($2,115.38)
- 2.Costs of the suit to the claimant
- 3.Interest on the awarded sum at court rate from the date of filing the suit until payment in full
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution, section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Captain (RTD) Charles K.W. Masinde v Intergovernmental Authorityon Development [2018] KEELRC 520 (KLR)", Case Analysis (2018). ELRC Cause (Statement of Claim filed 4th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/520/eng@2018-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.