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ELRCDismissedCause No E168 of 2022· [2024] KEELRC 1497 (KLR)

Bah v Living Goods Kenya (Cause E168 of 2022) [2024] KEELRC 1497 (KLR)

Employment and Labour Relations Court of Kenya
12 June 2024
2,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Respondent raised a preliminary objection seeking dismissal of the Claimant's employment claim on three grounds: that the relationship was governed by a consultancy contract (contract for service) rather than a contract of service; that section 12 of the Employment and Labour Relations Court Act read with Article 162(2) of the Constitution ousts the court's jurisdiction; and that the contract was entered into with a separate entity registered in the United States (Living Goods USA) to be performed in Sierra Leone, again ousting jurisdiction. The Claimant opposed, submitting that the agreement was prepared and executed in Nairobi, that he worked from the Kenyan global office, reported directly to the CEO in Nairobi, and that the relationship bore all the hallmarks of employment: integration into the Global Executive Team, a fixed monthly salary, bonuses, annual leave approved by the CEO, medical insurance, an official email, and authority to hire and terminate staff. The Claimant relied on authorities distinguishing contracts of service from contracts for service, including Kenya Hotels & Allied Workers Union v Alfajiri Villas and Christine Adot Lopeyio. The court applied the Mukisa Biscuit principle that a preliminary objection cannot be raised where facts must be ascertained, observing that the exhibited contract contained elements absent from consultancy contracts - leave, bonuses and monthly wage remuneration. The court held that the respondent's foreign base was immaterial and that under section 12 of the ELRC Act and Article 162(2)(b) of the Constitution it has jurisdiction over employment and labour matters. The preliminary objection was dismissed with costs on the higher scale, and the suit proceeds to full hearing.

Key legal issues

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01

Whether a preliminary objection was properly raised

Holding

No - the objection required ascertainment of facts from the contract and was improperly raised.

Reasoning

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.

p. 4
02

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

Holding

Yes - jurisdiction under section 12 of the ELRC Act and Article 162(2)(b) is not ousted by the respondent's foreign registration.

Reasoning

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.

p. 4
03

Whether the relationship was a contract of service or a contract for service

Holding

Prima facie a contract of service - the agreement contained elements of employment such as leave, bonuses and monthly wages.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Respondent's notice of preliminary objection is dismissed
  2. 2.Costs awarded to the Claimant on the higher scale

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2) and Article 162(2)(b)
  • Employment and Labour Relations Court ActSection 12
  • Employment Act, 2007Section 2

Cases cited (8)

  • Anthony Njuguna v Afri-China International Co. Ltd & another
    [2022] eKLR
  • United India Insurance Co. Ltd v E.A Underwriters K Ltd
    [1985] KLR 998
  • SN v Cabinet Secretary for Interior and Coordination of National Management Services, Director General, Kenya Citizens & Foreign Nationals Management Services & Attorney General
    [2016] eKLR
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Ltd)
    [2014] eKLR
  • Cassidy v Min. of Health
    [1951] 2 KB 343
  • Ready Mixed Concrete v Min. of Pensions
    (1968) 2 QB 497
  • Christine Adot Lopeyio v Wycliffee Mwathi Pere
    [2013] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.