Kihu v Optisafe (K) Ltd (Employment and Labour Relations Cause E201 of 2021) [2024] KEELRC 527 (KLR)
The bottom line
#A Kenyan court refused to enforce a foreign employment contract that skipped mandatory legal formalities, and a signed settlement voucher sealed the worker's fate.
What this practically means
#Executive summary
#Key legal issues
#Compliance of foreign contracts of service with section 83 of the Employment Act
The contract was a foreign contract of service concluded in Kenya but performed in Nigeria; non-compliance with section 83 rendered it illegal and unenforceable
Section 83 of the Employment Act mandatorily requires foreign contracts of service to be in the prescribed form, signed by the parties, and attested by a labour officer. The contract between the parties contained none of the prescribed provisions (transport, death/desertion procedures, repatriation) and was never attested. Having consciously participated in the unlawful arrangement, the Claimant could not invoke the court's aid to enforce it, per the ex turpi causa principle in Kenya Airways Ltd v Satwant Singh Flora.
Whether the contract was frustrated by the Covid-19 pandemic
Yes - the project shutdown and closure of Nigerian airspace frustrated the contract, and the absence of a force majeure clause does not preclude the doctrine
The Respondent's project in Nigeria was shut down at the close of March 2020 as a Covid-19 containment measure, confirmed by the Claimant in cross-examination as rendering her work impossible. The court held that frustration can operate regardless of whether the contract expressly contemplates force majeure, so the Claimant's objection that no force majeure clause existed was untenable.
The legal effect of the Deed of Discharge dated 25th August 2020
The discharge voucher bound the Claimant, releasing the Respondent from further claims; the allegation of coercion was not proved to the required standard
The Claimant acknowledged receipt of Ksh. 26,785.00 in full and final settlement and affirmed she had no further claims. Her assertion of coercion was a bare allegation lacking particulars and cogent evidence; per Patel v MJC, vitiating elements like coercion must be pleaded specifically and proved to a standard higher than balance of probabilities. Financial need to sign is not coercion.
Legal principles established
#- A foreign contract of service not concluded in the prescribed form and not attested by a labour officer is illegal and unenforceable
- A party who knowingly participates in an illegal contract cannot ask the court to enforce it
- Frustration can operate despite the absence of a force majeure clause in the contract
- A discharge voucher binds the parties until set aside on grounds that would vitiate a contract, which must be proved to a standard higher than balance of probabilities
Court orders
#- 1.Dismissal of the Claimant's suit
- 2.No order as to costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the ELRC under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihu v Optisafe (K) Ltd (Employment and Labour Relations Cause E201 of 2021) [2024] KEELRC 527 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/527/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.