Wanjiru Mwai v University of British Columbia [2019] KEELRC 547 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether choice of British Columbia law under the contract ousts the ELRC's jurisdiction
No; choice of law is not synonymous with jurisdiction, and no contractual provision was established that ousts the Court's jurisdiction
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.
Whether prior complaints and proceedings in British Columbia bar the suit or render it an abuse of process
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
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.
Where the cause of action accrued
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
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.
Effect of the leave granted to serve summons outside the jurisdiction
The leave granted on 13.02.2017 was never challenged and cannot be revisited on the merits, applying res judicata
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.
Legal principles established
#- 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
#- 1.The respondent's application dated 19.09.2017 is dismissed with costs in the cause
- 2.Parties are directed to take appropriate steps for expeditious hearing and determination of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.