Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 1336 of 2015 (memorandum of claim dated 26th August 2015)· [2020] KEELRC 1208 (KLR)

N’Dri Therese Asssie - Lumumba v Forum For Africa Women Educationists [2020] KEELRC 1208 (KLR)

Employment and Labour Relations Court
23 April 2020
MOMaureen Onyango
6,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a consultant's accident claim against FAWE because she sued the wrong party, too late, in the wrong country.

What this practically means

#

Executive summary

#
The claimant, a professor at Cornell University, sued Forum of African Women Educationalists (FAWE) seeking special damages of Kshs.1,549,543 for medical treatment, further medical costs, and general damages for pain, suffering, future medication and loss of future earnings, arising from a road accident in Freetown, Sierra Leone on 1st April 2011 during a Mid-Term Review consultancy, on the basis that the respondent failed to take out or forward her insurance claim. The respondent denied liability, asserting the consultancy agreement dated 20th February 2011 was between FAWE-WASRO (Senegal) and the claimant and Dr. Kangbai Konate; that the claim was time barred under Section 90 of the Employment Act; that the claimant was a consultant, not an employee; and that clause 13 of the agreement chose Senegalese law and arbitration in Dakar, ousting this court's jurisdiction. The court framed five issues. It held the cause of action arose on 21st August 2012 when the respondent declined responsibility, so the suit filed 27th August 2015 was statute barred. It found the claimant failed to prove Dr. Kangbai lacked authority to sign on her behalf, and that the respondent was not privy to the agreement. Clause 6.1 established the claimant was an independent contractor, not an employee, so she was not covered by staff insurance. Applying the exclusive jurisdiction clause, the court held it had no territorial jurisdiction. The entire claim was dismissed with costs.

Key legal issues

#
01

Limitation of actions under Section 90 of the Employment Act

Holding

The claim was filed outside the limitation period; the cause of action arose when the respondent declined responsibility for the accident by letter dated 21st August 2012, so the suit filed on 27th August 2015 was time barred.

Reasoning

The court distinguished between the injury itself (sustained in an accident in Sierra Leone) and the true cause of action pleaded, namely the respondent's failure to pay or forward the claim to an insurer. That refusal occurred on 21st August 2012, and under Section 90 of the Employment Act the three-year limitation period lapsed on 21st August 2015, before the suit was filed on 27th August 2015. The claimant's 'continuing injury' argument did not save the claim because the cause of action was the refusal, not the ongoing medical treatment.

p. 6
02

Privity of contract - whether the respondent was party to the consultancy agreement

Holding

The consultancy agreement was between FAWE-WASRO and the claimant jointly with Dr. Kangbai Konate; the respondent was not party to it.

Reasoning

The claimant denied authorising Dr. Kangbai Konate to sign the agreement on her behalf but did not join Dr. Kangbai to the suit or call her as a witness. Since the documents showed Dr. Kangbai signed 'for Kangai Konate and N'Dri T. Assie-Lumumba', the burden lay on the claimant to prove lack of authority, which she failed to discharge. The court therefore found the agreement validly signed and, its parties being FAWE-WASRO and the two consultants, held the respondent was not privy to it.

p. 7
03

Whether the claimant was an employee or an independent consultant

Holding

The claimant was a consultant and not an employee; consequently she was not covered by staff insurance.

Reasoning

Clause 6.1 of the consultancy agreement expressly provided that nothing in it constituted the consultants employees of FAWE, the relationship being that of an independent contractor. The pleadings themselves (paragraphs 7, 10 and 15) repeatedly described the engagement as consultancy work. The claimant also did not deny having been paid USD 4,228.50 towards air ticket and travel insurance. Being a consultant, she was not covered by the respondent's staff insurance cover.

p. 8
04

Territorial jurisdiction and choice of forum

Holding

The court had no territorial jurisdiction because the parties had bound themselves to Senegalese law and arbitration in Dakar.

Reasoning

Clause 13 of the consultancy agreement provided that the agreement was governed by Senegalese law, that disputes would first be resolved by consultation and then referred to a single arbitrator seated in Dakar, Senegal, with proceedings in French. Applying the Raytheon Aircraft principle that effect should ordinarily be given to exclusive jurisdiction clauses, the court held the claimant had shown no strong reasons to sue in Kenya and that this court had no territorial jurisdiction to determine the suit.

p. 9

Legal principles established

#
  • The burden of proving a fact lies on the party who alleges it and to whose benefit the facts are made
  • Where parties have bound themselves by an exclusive jurisdiction clause, effect should ordinarily be given to it absent strong reasons for suing elsewhere

Court orders

#
  1. 1.The entire claim is dismissed with costs to the respondent

Authorities

#

Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSection 90
  • Employment ActSection 10
  • Employment and Labour Relations Court Act, Act No. 20 of 2011Section 12(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Industrial Court (Procedure) Rules, 2010 (repealed)Rule 17(1) (printed as 'Rule 1a7(1)')
  • Arbitration Act, 1995referred to in clause 13.3 of the consultancy agreement

Cases cited (14)

  • Kenneth Kimani Mburu v Muigai Holding Limited
    (2014) eKLR
  • Dr. Zipporah Gathuya v The Registered Trustees of Getrude Garden T/A Getrudes Children's Hospital
  • G4S Security Services (K) Limited v Joseph Kamau and 468 Others
    [2018] eKLR
  • Maria Machocho v Total (K)
    Industrial Cause No. 2 of 2012
  • E. Torgbor v Ladislaus Odongo Ojuok
    [2015] eKLR
  • Savings and Loan (K) Limited v Kanyenje Karangaita Gakombe and Another
    [2015] eKLR
  • City Council of Nairobi v Wilfred Kamau Githua T/A Githua Associates and Another
    [2016] eKLR
  • Agricultural Finance Corporation v Lengetia Limited
    [1985] KLR 765
  • Julius Kigen Kibiego v Angeline Korir and Another
    [2012] eKLR
  • Martin Juma Kundu v Kemu Salt Packers Production Limited
    [2016] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • Seascapes Limited v Development Finance Company of Kenya Limited
    [2009] eKLR
  • Starsky Limited v Five Forty Africa Limited and Another
    [2016] eKLR
  • Raytheon Aircraft Credit Corporation and Another v Air Al-Faraj Limited
    [2005] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act, Act No. 20 of 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "N’Dri Therese Asssie - Lumumba v Forum For Africa Women Educationists [2020] KEELRC 1208 (KLR)", Case Analysis (2020). Cause No. 1336 of 2015 (memorandum of claim dated 26th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1208/eng@2020-04-23

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