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ELRCDismissedNot stated in the judgment extract· [2019] KEELRC 1264 (KLR)

Fredrick Kiprotich Koigei & another v Afritrack Investments (E.A) Limited & another [2019] KEELRC 1264 (KLR)

Employment and Labour Relations Court
18 June 2019
HWHellen Wasilwa
1,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimants filed a Memorandum of Claim alleging constructive dismissal, contending that their contracts of employment were entered into in Kenya under the Employment Act. The Respondents filed an application on 22nd February 2019 seeking to strike out the claim as scandalous, frivolous, vexatious and an abuse of court process, on grounds that the cause of action arose in Luanda, Angola; that the Claimants signed contracts in Angola with Afritrack Angola Civil & Industrial Limitada, a non-party; and that any remedy lay in Angolan municipal courts. The Claimants opposed, asserting that the 1st Respondent is a Kenyan limited liability company capable of suing and being sued, that their appointment letters were issued by the 1st Respondent through its Chief Executive Officer, that no term ousted the Court's jurisdiction, and that any Angolan contracts were procured by fraud, misrepresentation and duress. In submissions, the Respondents relied on authorities on jurisdiction where contracts are made and breached abroad, while the Claimants relied on the reliefs available under section 12 of the Employment and Labour Relations Court Act and authorities on ouster of jurisdiction. The Court found that the 1st Claimant signed his 2013 contract on the letterhead of the Kenyan company and was only later deployed to Angola, which did not oust jurisdiction; but the 2nd Claimant's contract bore the Afritrack Angola letterhead and some contracts were in a language other than English, which the Court could not interpret. Applying the Mukisa Biscuit principle, the Court held that the application could not be determined without reference to further evidence and facts, and therefore fell outside the scope of a preliminary objection. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the application is a proper preliminary objection

Holding

The application fails as a preliminary objection because it cannot be resolved without venturing into facts and further evidence

Reasoning

Applying the classic definition of a preliminary objection in Mukisa Biscuit, the Court noted that such an objection must be determined on pure points of law without reference to facts. Here, determining whether the Court has jurisdiction requires examination of the contracts, letterheads, deployment documents and untranslated Angolan-language contracts. Since factual inquiry is indispensable, the application cannot stand as a preliminary objection and is dismissed.

p. 3
02

Territorial jurisdiction over employment contracts connected to Angola

Holding

The 1st Claimant's contract was signed in Kenya on the letterhead of the Kenyan company, and his later deployment to Angola did not oust the Court's jurisdiction

Reasoning

The Court observed that the 1st Claimant signed his 2013 contract on the letterhead of Afritrack Investments (E.A) Limited with a Nairobi address, and was only later deployed to Angola by a 2014 contract. There was no indication that the deployment contract overrode the earlier Kenyan contract or ousted the Court's jurisdiction. However, the 2nd Claimant's contract bore the Afritrack Angola letterhead, and Angolan-language documents could not be interpreted by the Court.

p. 2
03

Interpretation of foreign-language contracts

Holding

The Court cannot determine the contents of contracts presented in a language other than English

Reasoning

Some documents presented related to a contract in a language other than English, which is not the official language of the Court. Because the Court could not determine the contents of those documents, it was unable to fully appreciate the terms of engagement and render a just verdict on the jurisdictional question on that basis — reinforcing the conclusion that the matter requires full factual inquiry rather than summary striking out.

p. 3

Legal principles established

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  • An application that requires reference to facts and further evidence cannot be sustained as a preliminary objection

Court orders

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  1. 1.The Respondents' application dated 22nd February 2019 seeking to strike out the Claimants' claim is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Actsection 2 (definition of employer)
  • Employment and Labour Relations Court Actsection 12

Cases cited (5)

  • WK & MWK (both suing as the administrators of the Estate of Dr. W.K) & Another v British Airways Travel Insurance & Another
    [2017] eKLR
  • United India Insurance Company Limited v East African Underwriter (Kenya) Limited
    [1945] KLR 898
  • Barakat Exploration Inc v Taipan Resources Inc
    [2014] eKLR
  • P.O v Board of Trustees, AF & 2 Others
    [2014] eKLR
  • Mukisa Biscuit
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Employment Act

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, "Fredrick Kiprotich Koigei & another v Afritrack Investments (E.A) Limited & another [2019] KEELRC 1264 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1264/eng@2019-06-18

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