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ELRCDismissedNot stated in the excerpt (memorandum of claim dated 05.10.2016; application dated 19.09.2017)· [2019] KEELRC 547 (KLR)

Wanjiru Mwai v University of British Columbia [2019] KEELRC 547 (KLR)

Employment and Labour Relations Court
18 October 2019
1,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondent, the University of British Columbia in Canada, filed a notice of motion under rules 13(5) and 17 of the ELRC (Procedure) Rules 2016 seeking the striking out of the claimant's memorandum of claim dated 05.10.2016 and dismissal of the cause for want of jurisdiction, on the grounds that the contract of employment was governed by British Columbia law, the claimant's complaints had been investigated and decided under the respondent's internal Policy 61 in Canada, the respondent's witnesses and operations were in British Columbia, and the respondent had no assets in Kenya. The claimant opposed the application, asserting that she was employed as a postdoctoral research fellow deployed to Kenya to lead the Weltel Project in the Northern Arid Lands; that the contract was performed in Kenya and partly in Canada; that the cause of action accrued in Kenya; and that sections 5, 87 and 83-86 of the Employment Act, 2007 and section 12 of the Employment and Labour Relations Court Act confer jurisdiction on the Court. The Court held that no contractual provision ousts its jurisdiction, that choice of law is not synonymous with jurisdiction (following the Masinde decision), that the claimant had only invoked internal mechanisms so the suit was not an abuse of process, that the cause of action accrued in Kenya, that the unchallenged leave to serve summons out of jurisdiction could not be revisited per res judicata, and that sections 83-86 of the Employment Act reinforce jurisdiction over foreign contracts of service. The application dated 19.09.2017 was dismissed with costs in the cause, and the parties were directed to take steps for expeditious hearing of the suit.

Key legal issues

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01

Whether choice of British Columbia law under the contract ousts the ELRC's jurisdiction

Holding

No; choice of law is not synonymous with jurisdiction, and no contractual provision was established that ousts the Court's jurisdiction

Reasoning

The Court examined the contract and Policy 61 and found no express ouster clause. The cited BC Acts would be the substantive law applicable to the dispute, binding the parties, but they do not confer exclusive jurisdiction on Canadian or BC courts. Following the Masinde decision, the Court distinguished the governing law from the forum's mandate, holding the ELRC retains jurisdiction over a dispute partly performed in Kenya despite a foreign choice-of-law clause.

p. 2
02

Whether prior complaints and proceedings in British Columbia bar the suit or render it an abuse of process

Holding

No; the claimant only invoked the respondent's internal dispute resolution mechanisms, and there is no pending or determined suit in a Canadian court on the same matters

Reasoning

The respondent did not dispute that the claimant had only invoked internal Policy 61 processes. In the absence of a pending or decided suit by an appropriate court in Canada on the matters in dispute, the Kenyan suit is not an abuse of court process. Internal procedures do not diminish or replace the Court's jurisdiction.

p. 3
03

Where the cause of action accrued

Holding

The cause of action accrued in Kenya, as the claimant and her supervisor were in Kenya and the contract was performed in Kenya and partly in Canada

Reasoning

On the evidence, the claimant was deployed to lead the Weltel Project in the Northern Arid Lands of Kenya, based at AMREF offices and project sites including Kibera, Isiolo, Nanyuki and Meru. Termination occurred while the claimant and her supervisor were in Kenya. A cause of action accruing in Kenya confers jurisdiction on the ELRC notwithstanding partial performance abroad.

p. 3
04

Effect of the leave granted to serve summons outside the jurisdiction

Holding

The leave granted on 13.02.2017 was never challenged and cannot be revisited on the merits, applying res judicata

Reasoning

The respondent entered appearance on 04.08.2017 following leave to serve out of jurisdiction granted on 13.02.2017. Having not challenged that leave, the respondent could not collaterally attack it in the jurisdiction application; the Court, invoking res judicata, declined to delve into the merits or otherwise of the leave as granted.

p. 3

Legal principles established

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  • Choice of law in a contract of service is not synonymous with jurisdiction; it relates to the governing substantive law, while jurisdiction concerns the authority of the court or tribunal to determine the dispute
  • A contract of service performed in Kenya accrues a cause of action in Kenya, conferring jurisdiction on the ELRC notwithstanding a foreign choice-of-law clause
  • The Employment Act, 2007 does not exclude foreign contracts of service from the ELRC's jurisdiction; sections 83 to 86 expressly reinforce such jurisdiction
  • Unchallenged leave to serve summons outside the jurisdiction cannot be revisited on merits, per res judicata

Court orders

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  1. 1.The respondent's application dated 19.09.2017 is dismissed with costs in the cause
  2. 2.Parties are directed to take appropriate steps for expeditious hearing and determination of the suit

Authorities

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Legislation

  • Employment & Labour Relations Court (Procedure) Rules 2016rule 13(5); rule 17(1),(2),(3)
  • British Columbia University Act, R.S.B.C 1996c. 468
  • Employment Standards Act (BC), RSC 1996c. 113
  • Human Rights Code (BC), RSBC 1996c. 210
  • British Columbia's Court Order Enforcement Act, R.S.B.C.c. 78
  • Employment Act, 2007 (Kenya)section 5; Part IV; sections 87, 83-86
  • Employment and Labour Relations Court Actsections 12, 12(3), 13
  • Constitution of Kenya 2010Articles 27, 28, 29, 41

Cases cited (3)

  • Captain (Rtd) Charles K.W. Masinde –Versus- Intergovernmental Authority on Development
    [2018] eKLR
  • Raytheon Credit Corporation & Another –Versus- Air Al-Faraj Limited
    [2005] 2 KLR 47
  • Barakat Exploration Inc Talpan Resources Inc.
    [2014] eKLR
Jurisdiction invoked
Sections 12 and 13 of the Employment and Labour Relations Court Act; Sections 5, 83-87 of the Employment Act, 2007; Articles 27, 28, 29 and 41 of the Constitution of Kenya 2010

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, "Wanjiru Mwai v University of British Columbia [2019] KEELRC 547 (KLR)", Case Analysis (2019). Not stated in the excerpt (memorandum of claim dated 05.10.2016; application dated 19.09.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/547/eng@2019-10-18

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