Bah v Living Goods Kenya (Cause E168 of 2022) [2024] KEELRC 1497 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear claims against foreign-registered employers, and dismissed Living Goods' attempt to end the worker's case early.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection was properly raised
No - the objection required ascertainment of facts from the contract and was improperly raised.
Relying on Mukisa Biscuit, the court held the objection was improper because the exhibited contract contained facts - leave entitlement, bonuses and monthly wage remuneration - that required ascertainment rather than pure points of law. The court noted the Newbold P. warning had not been heeded and termed the objection a needless exercise in futility.
Whether the ELRC has jurisdiction over a dispute where the contracting entity is registered in the USA and the contract was to be performed in Sierra Leone
Yes - jurisdiction under section 12 of the ELRC Act and Article 162(2)(b) is not ousted by the respondent's foreign registration.
The court held that the respondent's conflation of its persona with the court's jurisdiction was misconceived. Where the respondent is based is immaterial; what matters is the relationship between the parties and its severance. The dispute is an employment and labour matter over which the court has jurisdiction under section 12 of the ELRC Act and Article 162(2)(b) of the Constitution.
Whether the relationship was a contract of service or a contract for service
Prima facie a contract of service - the agreement contained elements of employment such as leave, bonuses and monthly wages.
The court observed that the exhibited agreement contained elements not found in a consultant's contract: entitlement to leave, bonuses and monthly remuneration as a wage. Determination of the true nature of the relationship is a factual inquiry into the relationship between the parties and its severance, not a matter resolvable by preliminary objection.
Legal principles established
#- A preliminary objection cannot be raised where facts have to be ascertained or where judicial discretion is sought to be exercised
- The ELRC has jurisdiction over employment and labour disputes irrespective of where the respondent is based; the situs of the respondent does not oust jurisdiction
Court orders
#- 1.The Respondent's notice of preliminary objection is dismissed
- 2.Costs awarded to the Claimant on the higher scale
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bah v Living Goods Kenya (Cause E168 of 2022) [2024] KEELRC 1497 (KLR)", Case Analysis (2024). Cause No E168 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1497/eng@2024-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.