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ELRCDismissedNot stated in the excerpt provided· [2025] KEELRC 1560 (KLR)

Dunaiski v Kenya Airways PLC (Cause E845 of 2024) [2025] KEELRC 1560 (KLR)

Employment and Labour Relations Court
29 May 2025
CBC. N. Baari
2,513 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 confirmed it can enforce foreign judgments stemming from employment disputes, dismissing an attempt to have the claim struck out.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 4th December 2024 seeking the striking out of the Claimant's claim, arguing that the ELRC lacked jurisdiction to recognise, adopt and enforce a foreign (Angolan) judgment, which it said belonged to the High Court under the Civil Procedure Act framework and principles of international comity. The objection was canvassed by written submissions. The Respondent relied on Mukisa Biscuits, Owners of the Motor Vessel 'Lillian S', Karisa Chengo, the NSSF/Kenya Tea Growers Court of Appeal decision, Raw Bank and the Judicature Act to argue that the ELRC is a specialised court of limited jurisdiction, distinct from the High Court, and cannot entertain foreign judgment enforcement. The Claimant countered that the High Court has no jurisdiction over employment matters, and that under Jayesh Hasmukh Shah v Navin Haria, enforcement of a judgment from a non-designated country proceeds under Section 9 of the Civil Procedure Act read with common law principles, and that such issues arise from the employer/employee relationship, falling within Section 12(1) of the ELRC Act. C. N. Baari J framed a single issue: whether the court has jurisdiction. The court agreed the objection was a pure point of law, but applying the Supreme Court's 2024 Kenya Tea Growers decision held that the ELRC is not precluded from determining matters lying at the centre of an employment dispute. Since the foreign judgment admittedly arose from an employment dispute, the claim fell squarely within Article 162(2)(a) of the Constitution and Section 12(1) of the ELRC Act. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELRC to recognise, adopt and enforce a foreign judgment

Holding

The ELRC has jurisdiction because the foreign judgment arises from an employment dispute; enforcement via Section 9 of the Civil Procedure Act does not oust that jurisdiction

Reasoning

The court applied the Karisa Chengo principle that the ELRC is a sui generis court distinct from the High Court, but relied on Kenya Tea Growers (Supreme Court, 2024) to hold that the ELRC may determine related issues lying at the centre of an employment dispute. Since the Respondent admitted the Angolan judgment arose from an employment dispute, and Section 9 CPA enforcement applies mutatis mutandis with common law principles (Jayesh Hasmukh Shah), the claim falls within Article 162(2)(a) and Section 12(1) of the ELRC Act.

p. 5
02

Whether the preliminary objection raised a pure point of law

Holding

Yes - the objection on jurisdiction was a pure point of law within the Mukisa Biscuits threshold

Reasoning

The court endorsed the Mukisa Biscuits definition, confirming that an objection questioning the court's jurisdiction requires no ascertainment of facts and is properly a preliminary objection. The court agreed with the Respondent on this threshold point but ultimately rejected the substantive jurisdictional challenge.

p. 5

Legal principles established

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  • Where a claim seeks adoption and enforcement of a foreign judgment that arises from an employment dispute, the ELRC has jurisdiction notwithstanding that enforcement is grounded on the Civil Procedure Act
  • A preliminary objection must raise a pure point of law

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 4th December 2024 is dismissed
  2. 2.Costs awarded to the Claimant in the cause
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12(1)(a)-(j) 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, "Dunaiski v Kenya Airways PLC (Cause E845 of 2024) [2025] KEELRC 1560 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1560/eng@2025-05-29

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