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ELRCOtherNot stated in the excerpt· [2019] KEELRC 297 (KLR)

Emmanuel Fresco v Camusat Kenya Limited & another [2019] KEELRC 297 (KLR)

Employment and Labour Relations Court
22 November 2019
2,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenyan courts can hear employment disputes even when the contract picks foreign law, especially where the work happened in Kenya.

What this practically means

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Executive summary

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The 2nd Respondent, a company incorporated in Mauritius, filed a Notice of Preliminary Objection on 21.3.2019 seeking the striking out of the claimant's suit against her on the ground that the employment contract dated 2.7.2014 chose Mauritius law and conferred exclusive jurisdiction on Mauritian courts, so the Kenyan court lacked jurisdiction and the claimant lacked standing. The 2nd Respondent relied on United India Insurance v East African Underwriters, Arthur Kawino v PSI, the Sudan Catholic Bishops case and KMWK v British Airways, contending the contract had its closest connection with Mauritius. The claimant countered that choice of law does not oust the jurisdiction of Kenyan courts, relying on Dorcas Kemunto Wainaina v IPAS where Radido J distinguished choice of law from choice of jurisdiction. The court framed a single issue: whether it had jurisdiction over the suit against the 2nd Respondent. Holding that the parties chose only the applicable law and not a foreign forum, Makau J held the court had jurisdiction provided it applied Mauritian law. The court further held that even an express foreign jurisdiction clause could be overridden where strong reasons exist, and found such reasons here: the contract was performed in Kenya, the claimant was based in Nairobi where the respondent had a regional office, the alleged misconduct, disciplinary proceedings and separation took place in Kenya, and witnesses and evidence were locally available. The Preliminary Objection was dismissed with costs.

Key legal issues

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01

Whether the choice of Mauritius law in the employment contract ousts the jurisdiction of the Kenyan court over the claimant's suit against the 2nd Respondent

Holding

The court has jurisdiction; the parties chose only the applicable law, not a foreign forum, and even an express foreign jurisdiction clause could be overridden for strong reason.

Reasoning

The court distinguished choice of law from choice of jurisdiction, following Radido J in Dorcas Kemunto Wainaina v IPAS. The contract chose Mauritius law as the law applicable to the employment relationship, but did not expressly confer exclusive jurisdiction on Mauritius courts; had the parties intended that, they would have said so plainly. The court also noted its residual discretion, per United India Insurance, to override even an express jurisdiction clause where strong reasons exist. On the facts, the contract was performed in Kenya, the claimant was based in Nairobi, the alleged misconduct, disciplinary proceedings and separation occurred in Kenya, and witnesses and evidence were in Kenya.

p. 3
02

Whether there are strong reasons for the court to assume jurisdiction notwithstanding the contractual choice of Mauritius law

Holding

Strong reasons were shown: the contract was performed in Kenya, the misconduct and separation took place in Kenya, and trying the suit in Mauritius would increase costs.

Reasoning

Applying the United India Insurance principles, the court found Kenya to be the natural forum. The claimant, a French national, was resident in Nairobi where the 2nd Respondent maintained a regional office; the salary amendment letter confirmed employment by Camusat Mauritius and Camusat Kenya based in Nairobi. The alleged misconduct, disciplinary proceedings and consequential separation all took place in Kenya, so witnesses and evidence were readily available locally, whereas referral to Mauritius would add travel costs. The claimant also enjoyed the protection of Kenyan employment law under international law.

p. 4

Legal principles established

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  • Choice of law in a contract does not necessarily amount to a choice of jurisdiction; a domestic court may assume jurisdiction and apply the chosen foreign law.
  • Even where parties have expressly chosen a foreign jurisdiction, a Kenyan court retains a discretion to assume jurisdiction if there is a strong reason for overriding the jurisdiction clause.

Court orders

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  1. 1.The Preliminary Objection dated 21.3.2019 is rejected/dismissed
  2. 2.The Preliminary Objection is dismissed with costs to the claimant

Authorities

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Cases cited (5)

  • United India Company Insurance Company Limited & 2 others v East African Underwriters (Kenya) Ltd
    [1985] KLR 998
  • Arthur Kawino v Population Services International (PSI)
    [2017] eKLR
  • Kenya Union of Employees of Voluntary and Charitable Organisation v Sudan Catholic Bishops Regional Conference
    [2013] eKLR
  • KMWK v British Airways Travel Insurance & Another
    [2017] eKLR
  • Dorcas Kemunto Wainaina v IPAS
    [2018] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court to determine whether it has jurisdiction notwithstanding a foreign choice-of-law clause in an employment contract

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emmanuel Fresco v Camusat Kenya Limited & another [2019] KEELRC 297 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/297/eng@2019-11-22

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