Musee v International School Of Kenya Ltd (Cause 60 of 2020) [2023] KEELRC 2102 (KLR)
The bottom line
#Kenya's Employment Court ruled that foreign choice-of-law clauses cannot block a Kenyan teacher's discrimination claim, and time-limit objections must be tested with evidence at trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's Notice of Preliminary Objection meets the threshold of a Preliminary Objection.
- 2.Depending on the answer to (i), whether the Preliminary Objection is merited.
Key legal issues
#Whether the Notice of Preliminary Objection met the Mukisa Biscuits threshold
It did, since it challenged jurisdiction on the basis of ouster clauses and limitation under Section 90 of the Employment Act - pure points of law.
The court applied the celebrated Court of Appeal decision in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, quoting Law JA and Sir Charles Newbold P. A plea of limitation and an objection to jurisdiction are paradigm examples of a pure point of law that may dispose of the suit without hearing evidence. The Respondent's notice rested squarely on limitation under Section 90 of the Employment Act, 2007 and ouster clauses in the employment contracts, so it satisfied the threshold.
Whether the claims for underpayment and house allowance were statute barred under Section 90 of the Employment Act
Not determined conclusively at this stage; the court held it has jurisdiction because the suit, filed on 4th February 2020 after retirement on 7th June 2019, was within the limitation period, and the claims arguably constituted a continuing injury requiring an evidential inquiry.
Relying on Indian Supreme Court authorities and the Court of Appeal's decision in German School Society v Helga Ohany, the court accepted that a wrong of a continuing nature gives rise to a recurring cause of action. Because the contested issues were factual and evidence had not been canvassed, fairness required that the Claimant be accorded the opportunity to prove her case on merit. Even if the claims were not continuing injuries, the suit was filed within three years.
Whether the USA choice-of-law/ouster clauses in the employment contracts ousted the court's jurisdiction
No. The court has jurisdiction notwithstanding the ouster clauses, because the contracts were concluded and performed in Kenya and mandatory labour protections are territorial.
While accepting that a contract of employment is governed by general contract principles (Krystalline Salt), the court emphasized that the employment relationship is regulated by the Employment Act and Article 41 of the Constitution guaranteeing fair labour practices. Halsbury's Laws (para 354) and Rika J.'s dictum in Dede Esi Annie Amanor-Wilks establish that choice-of-law clauses cannot deprive an employee of mandatory protections; labour law is territorial (lex loci laboris). The Sudan Catholic Bishops case was distinguished as the contract there was performed entirely in Sudan.
Whether the court lacks jurisdiction over the taxation of the Respondent's expatriate teachers, the matter being vested in the Tax Appeal Tribunal
Not expressly determined as a discrete holding; the court's overall finding of jurisdiction covers the suit, framed as a discrimination/equal pay claim rather than a tax assessment dispute.
The Claimant submitted that the true question was equal pay for equal work between expatriate and locally employed teachers, not the liability of any person to tax under the Income Tax Act. The court did not address the Tax Appeal Tribunal's exclusive mandate head-on but found, on the totality of the analysis on ouster and limitation, that it has jurisdiction to hear and determine the instant suit, which was accordingly preserved for determination on merit.
Legal principles established
#- A preliminary objection consists of a pure point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit (Mukisa Biscuits test).
- Under Section 90 of the Employment Act, a suit based on a continuing injury or damage must be instituted within twelve months after cessation thereof.
- An ouster/choice-of-law clause in an employment contract does not deprive the employee of the protection of the mandatory rules of the law of the place of employment; labour law is territorial (lex loci laboris).
- Employment contracts concluded and performed in Kenya fall within the jurisdiction of the Kenyan courts notwithstanding foreign choice-of-law clauses.
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 12th May, 2023 is dismissed.
- 2.Parties shall bear own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 (Employment and Labour Relations Court); Article 41 of the Constitution cited on the employment relationship
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Flowing directly from the foregoing analysis, it is clear that the Respondent's Notice of Preliminary Objection dated 12th May, 2023 is for dismissal and it is accordingly dismissed.
Parties shall bear own costs.
For the foregoing reasons, it is the finding of the court that the court has jurisdiction to hear and determine the instant suit, the ouster clauses in the contract of employment notwithstanding.
In the court's view, since the matter being contested are factual in nature and evidence is yet to be canvassed, it is only fair, that the Claimant be accorded the opportunity to prove her case and the same is determined on merit.
States will not cede their sovereignty easily over issues that concern implementation of labour standards within their territorial boundaries. Like criminal law, labour law is highly territorial.
Issues in the judgment
#The judgment text contains recurring typographical errors (e.g. 'afiorded', 'lanches', 'each tie he was paid', 'homeport' for 'homport'/'import'), indicating a poorly proofread transcript.
The judgment bears the marking 'DRAFT' at the end, suggesting the version analysed may not be the final signed copy.
The case name of the Court of Appeal decision is inconsistently rendered ('German School Society V Helga Ohany' and 'German School. SocietyHelga Ohany').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omar t/a Meat Magic Enterprises v Kalu (Appeal E088 of 2024) [2025] KEELRC 325 (KLR)[2025] KEELRC 325 (KLR)6 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Musee v International School Of Kenya Ltd (Cause 60 of 2020) [2023] KEELRC 2102 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2102/eng@2023-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.