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ELRCPartially AllowedELRC Cause (Statement of Claim filed 4th July 2014)· [2018] KEELRC 520 (KLR)

Captain (RTD) Charles K.W. Masinde v Intergovernmental Authorityon Development [2018] KEELRC 520 (KLR)

Employment and Labour Relations Court
30 November 2018
3,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed on 10th October 2010 as Senior Liaison Officer under a 12-month fixed-term contract with the respondent, sued for unpaid salary for the unexpired contract term, notice pay, refund of travel disbursements, 12 months' compensation for unfair termination and leave pay, alleging unlawful summary termination on 24th February 2011. The respondent raised a preliminary objection that the court lacked jurisdiction because the contract was governed by Djibouti law and the duty station was Mogadishu; Ndolo J declined to dismiss the suit in limine and directed that jurisdiction be canvassed at trial. The respondent did not call any witness at trial. The court held it had jurisdiction, distinguishing choice of law from choice of jurisdiction and applying Dorcas Kemunto Wainaina v IPAS: the Djibouti governing-law clause did not oust Kenyan jurisdiction, the contract having been signed in Nairobi and the respondent having a local office within the jurisdiction. On the merits, the court found the claimant's explanations for his habitual absence from Mogadishu unsatisfactory on a balance of probability and held the summary dismissal justified under Clause 10 of the contract, which reserved IGAD's right to summary termination with or without reason. The court declined to assess procedural fairness under Kenyan law, holding the dispute had to be determined under Djibouti law, under which unfair termination was not proved. Judgment was entered for the claimant for $7,814.08, being proved travel expenses and pro rata leave days grounded in contract clauses 14 and 5, plus costs and interest at court rates from filing until payment in full.

Key legal issues

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01

Whether the court has jurisdiction where the contract was signed in Kenya, performed in Somalia, but subjected to Djibouti law

Holding

The court has jurisdiction; the Djibouti choice-of-law clause did not oust Kenyan jurisdiction.

Reasoning

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.

p. 4
02

Whether the summary termination was wrongful and unfair

Holding

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.

Reasoning

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.

p. 5
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Whether the claimant is entitled to the prayers sought

Holding

Only refund of proved travel expenses and pro rata leave days were awarded, grounded on contract clauses, not Kenyan law.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Costs of the suit to the claimant
  3. 3.Interest on the awarded sum at court rate from the date of filing the suit until payment in full

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 47
  • Employment and Labour Relations Court Actsection 12
  • Employment Act 2007section 87
  • Employment Act 2007section 44(1)
  • Employment Act 2007section 44(3)
  • Employment Act 2007section 43
  • Employment Act 2007section 41

Cases cited (3)

  • Onesmus Mutuku Ndunda vs. Motorways Construction Limited
    ELRC Cause No. 1712 of 2012
  • George Katana Isanya vs. Aga Khan University Hospital & Another
    ELRC Cause No. 2172 of 2012
  • Dorcas Kemunto Wainaina vs. IPAS
    (eKLR)
Jurisdiction invoked
Article 162(2)(a) of the Constitution, section 12 of the Employment and Labour Relations Court Act

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, "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.