Emmanuel Fresco v Camusat Kenya Limited & another [2019] KEELRC 297 (KLR)
The bottom line
#Kenyan courts can hear employment disputes even when the contract picks foreign law, especially where the work happened in Kenya.
What this practically means
#Executive summary
#Key legal issues
#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
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.
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.
Whether there are strong reasons for the court to assume jurisdiction notwithstanding the contractual choice of Mauritius law
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.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 21.3.2019 is rejected/dismissed
- 2.The Preliminary Objection is dismissed with costs to the claimant
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Guo v Beijing Zhongji Jingu Integrated Housing Technology Company Limited & 2 others (Cause E328 of 2023) [2024] KEELRC 1024 (KLR)[2024] KEELRC 1024 (KLR)15 Apr 2024
- Tonio v Kenya Power & Lighting Co Ltd (Cause 1359 of 2018) [2023] KEELRC 2544 (KLR)[2023] KEELRC 2544 (KLR)19 Oct 2023followed
Cite this brief
#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.