Uchendu v Smec International Pty Limited & another (Employment and Labour Relations Cause E153 of 2023) [2023] KEELRC 2847 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of an unsigned but mutually acknowledged written employment agreement
The unsigned instrument nonetheless binds the parties as the reflection of their agreed terms since both sides relied on it
Although the claimant did not sign the employment agreement dated November 10, 2016, he extensively referred to it in his Statement of Claim and the respondents invoked its clause 17 in the preliminary objection. The court held that both parties acknowledge the contract was anchored on the terms of that document, so its choice-of-law and forum clause applies.
Whether the parties' contractual choice of Singapore law and forum can be displaced by the claimant's pleas of convenience and bargaining imbalance
No - absent cogent evidence of undue influence or coercion, the court must respect the parties' choice of forum
The court accepted that parties to a contract of service generally stand in a position of imbalance but refused to adopt an inflexible attitude. The claimant never pleaded undue influence in his Statement of Case and only raised the plea to resist the objection. Witness location and expense were matters the parties must have considered when contracting, so the court would not go behind the plain terms of the forum clause.
Whether the dispute falls within clause 17's scope
Yes - the unfair termination grievance stems from the employment agreement and is covered by the clause
The claimant's grievance of unfair termination under the guise of operational requirements arises directly from the employment agreement, which by clause 17.1 is governed by Singapore law and by clause 17.2 submits disputes to the Singapore courts. The question of whether the 1st or 2nd respondent was the actual employer is a matter for the court with jurisdiction, not this court.
Legal principles established
#- A court must, as a general principle, respect the parties' choice of foreign law and forum even where the contract has been performed in Kenya
- A court should not invalidate a contractual term absent cogent evidence of coercion, undue influence or mistake
Court orders
#- 1.The respondents' preliminary objection is allowed
- 2.The suit is struck out for want of jurisdiction
- 3.Costs of the suit awarded to the respondents
- Jurisdiction invoked
- Preliminary objection on choice-of-forum clause (clause 17 of the letter of appointment) ousting the Kenyan court's jurisdiction; no constitutional/statutory provision expressly invoked in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uchendu v Smec International Pty Limited & another (Employment and Labour Relations Cause E153 of 2023) [2023] KEELRC 2847 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2847/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.