Vignir Demuson v Marriott Drilling Africa Limited & another [2022] KEELRC 196 (KLR)
The bottom line
#Kenya's Employment Court dismissed an unfair termination claim because the employee's contract required disputes to be heard in English courts.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction over an employment contract with an exclusive English jurisdiction clause performed in Kenya
The Court held it has no jurisdiction; the exclusive English jurisdiction and governing law clause must be honoured and the Claimant demonstrated no sufficiently strong reasons to depart from it
The Court applied the Lillian S test and the Madan JA factors in Five Forty Aviation: the evidence was exclusively documentary and available online, English law applied as agreed, both parties were closely connected to the UK, and the employer was a UK resident. The Claimant did not raise concerns about trial in the UK, and entering appearance while objecting to jurisdiction was not a waiver. The Court therefore downed its tools.
Whether the Respondents waived the exclusive jurisdiction clause by entering appearance
No waiver was found because the Respondents expressly objected to the Court's jurisdiction in their memorandum of defence
The Claimant relied on Universal Pharmacy, where unconditional appearance and failure to object amounted to waiver. The Court found those circumstances distinguishable: in this case the Respondents objected to jurisdiction in the memorandum of defence filed on 8th November 2016, so submission was not established.
Legal principles established
#- An exclusive foreign jurisdiction clause in a contract must normally be obeyed and departure requires sufficiently strong exceptional reasons
- Jurisdiction is a threshold issue that may be raised at any point in proceedings and courts must down tools where jurisdiction is absent
Court orders
#- 1.The Court held it has no jurisdiction to proceed and downed its tools
- 2.Parties to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; suit dismissed for lack of jurisdiction under the contract's exclusive English jurisdiction clause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vignir Demuson v Marriott Drilling Africa Limited & another [2022] KEELRC 196 (KLR)", Case Analysis (2022). Cause No. 1801 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/196/eng@2022-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.