Arthur Kawino v Population Services Internaitonal (PSI) [2019] KEELRC 465 (KLR)
The bottom line
#Kenya's Employment Court reinstated an employee's claim, ruling that a foreign arbitration clause cannot force him to litigate in the USA he cannot afford.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 17/11/2017 striking out the claim contained an error apparent on the face of the record warranting review
Yes - the Court found it was an error to direct the Claimant to resolve the dispute in the USA when the Respondent had already submitted to the Court's jurisdiction by unconditional appearance
The Court applied Rule 33 which permits review for error apparent on the face of the record, discovery of new matter, or other sufficient reason. It held that since the Respondent entered unconditional appearance on 9/1/2017 before filing its preliminary objection, it had submitted to jurisdiction and could not resile from that position. Directing arbitration in Washington DC despite that submission was an error on the record, and the Respondent's Nairobi office meant it would suffer no prejudice from trial in Kenya.
Whether an exclusive foreign arbitration/jurisdiction clause ousts the ELRC's jurisdiction over an employment dispute
No - such a clause does not by itself divest the Court of jurisdiction, particularly where its effect would be to frustrate the employee's access to justice
Relying on Stephen Nyamweya v Riley Services and Universal Pharmacy v Pacific International Lines, the Court endorsed the position that Kenyan courts may assume jurisdiction despite exclusive foreign forum clauses, applying the Eleftheria factors of convenience, location of evidence and prejudice. The Claimant's inability to afford USD 50,000 and his visa ineligibility meant enforcing the clause would deny him access to justice under Article 50.
Legal principles established
#- A defendant who enters unconditional appearance submits to the court's jurisdiction and cannot thereafter contest it by a preliminary objection, including where an exclusive foreign jurisdiction or arbitration clause exists.
- Kenyan courts retain discretion to assume jurisdiction notwithstanding an exclusive foreign jurisdiction clause, weighing the convenience of the parties, location of evidence and prejudice.
Court orders
#- 1.The Court's ruling of 17/11/2017 striking out the claim is reviewed and set aside
- 2.The claim is reinstated for hearing and disposal before the Court
- 3.Costs in the cause
- Jurisdiction invoked
- Rule 33 of the Employment & Labour Relations Court (Procedure) Rules 2016; Sections 3, 12(3)(vii), 16 and 29 of the Employment & Labour Relations Court Act; Articles 41(1), 48, 50(1), 159 and 162(2)(a) and (3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Kawino v Population Services Internaitonal (PSI) [2019] KEELRC 465 (KLR)", Case Analysis (2019). Notice of Motion dated 24/04/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/465/eng@2019-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.