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ELRCDismissedNot stated in judgment· [2024] KEELRC 2674 (KLR)

Tonui v DL Group of Companies Limited (Cause E524 of 2023) [2024] KEELRC 2674 (KLR)

Employment and Labour Relations Court
31 October 2024
645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court confirmed that picking Tanzanian law in a contract does not stop Kenyan courts from hearing the dispute.

What this practically means

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Executive summary

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The Claimant, Nicholas K. Tonui, sued DL Group of Companies Ltd for breach of contract arising from withheld salaries. The Respondent raised a Preliminary Objection on two grounds: first, that clause 16 of the employment contract designated Tanzanian law as the governing law, ousting the Court's jurisdiction; and second, that the claim fell outside the Court's territorial jurisdiction because the employment services were performed exclusively in Tanzania. The Respondent relied on Raytheon Aircraft Credit Corporation v Air Al-Faraj Limited and James Finlay (Kenya) Limited v Elly Okongo Inganga & others. The Claimant countered, citing Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, that the objection did not raise a pure point of law since it would require interrogation of contested facts, and relying on Dorcas Kemunto Wainaina v IPA, that the Respondent conflated choice of law with choice of jurisdiction. The Court, per Radido Stephen J, distinguished between choice of law and choice of forum. Clause 16 designated Tanzanian law but was silent on the forum for disputes. Where there is no consensual or statutory choice of forum, jurisdiction depends on factual questions such as domicile of the parties and place of performance or breach, which must be proved at trial. The Court also noted that Part XI of the Employment Act, 2007 addresses foreign contracts of service, an issue to be unravelled at trial. The Notice of Preliminary Objection was dismissed with costs.

Key legal issues

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01

Whether a governing-law clause conferring Tanzanian law ousts the ELRC's jurisdiction over the employment dispute

Holding

It does not; choice of law is distinct from choice of jurisdiction, and the contract was silent on the forum, so the objection fails.

Reasoning

The court distinguished between choice of law and choice of forum as separate conflict-of-laws principles. Clause 16 designated Tanzanian law as governing the contract, which the parties consciously chose, but the contract contained no clause designating the forum for disputes. In the absence of a consensual or statutory choice of forum, the court noted that jurisdiction may be determined by factual questions such as domicile and place of performance or breach, which must be proved at trial. Part XI of the Employment Act on foreign contracts of service may also apply. The preliminary objection therefore failed as it conflated the two concepts and sought to resolve factual matters on a point of law.

p. 2
02

Whether the preliminary objection raised a pure point of law

Holding

The objection could not succeed because determining it would require interrogation of contested facts.

Reasoning

The Claimant argued, citing Mukisa Biscuit, that the objection would require the court to interrogate contested facts such as the existence of the employment relationship and where the contract was performed. The court's reasoning on choice of law versus forum, and its observation that the considerations for forum where there is no consent are factual questions which must be proved at trial, aligns with this position and supports dismissal of the objection.

p. 2

Legal principles established

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  • A choice of law clause does not determine the choice of jurisdiction or forum; the two are distinct conflict-of-laws questions.
  • Where a contract is silent on the forum, jurisdiction depends on factual considerations such as domicile of the parties and place of performance or breach, which must be proved at trial.

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Part XI on foreign contracts of service considered); not expressly stated in judgment

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, "Tonui v DL Group of Companies Limited (Cause E524 of 2023) [2024] KEELRC 2674 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2674/eng@2024-10-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.