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ELRCStruck OutNot stated in the judgment as provided (a 'Cause' presented before the Employment and Labour Relations Court)· [2025] KEELRC 1801 (KLR)

Dahiya v Medecins Sans Frontieres (MSF) (Cause E569 of 2024) [2025] KEELRC 1801 (KLR)

Employment and Labour Relations Court
19 June 2025
RSRadido Stephen
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court struck out a worker's case against MSF because his contract required disputes to be heard in France, not Kenya.

What this practically means

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Executive summary

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The Claimant, Issack Yussuf Dahiye, sued Médecins Sans Frontières (MSF) on 25 July 2024 claiming damages for unfair and wrongful termination, damages for violation of international and domestic labour rights, a formal retraction of allegedly scandalous reports, a proper Certificate of Service, and costs and interests. The Respondent filed a Notice of Preliminary Objection contending that the Court lacked jurisdiction because the employment contract dated 13 September 2022 was governed by French law and vested exclusive jurisdiction in the French Employment Tribunal, and the contract was executed and performed outside Kenya. The Claimant opposed, arguing that Articles 1 and 13 of the contract were vague and ambiguous, that the contra proferentem rule should favour him, and that the objection was not a proper preliminary objection as it required proof of facts such as unconscionability. The Court found that the parties had settled on French law as the applicable law, and that the contractual reference to 'the employment tribunal' could not mean the Employment and Labour Relations Court since Kenya has no Employment Tribunal. The contract was not executed in Kenya, was performed in Nigeria, identified the Respondent as established under French law with its residence in Paris, and made no reference to the Kenyan office or Nigerian law and forum. The Court held that the agreed forum was the French Employment Tribunal and that it could not rewrite the contract to clothe itself with jurisdiction, adding that claims of unconscionability should have been raised earlier. The Court upheld the preliminary objection, declined jurisdiction and struck out the Statement of Claim, with no order on costs given that the Cause was struck out before pre-trial directions.

Key legal issues

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01

Effect of the choice-of-law and forum clause (Article 13) on the Court's jurisdiction

Holding

The parties agreed on French law and the French Employment Tribunal; the ELRC is not the tribunal the parties settled on and therefore lacks jurisdiction

Reasoning

Article 13 made the contract subject to French law and the jurisdiction of 'the employment tribunal'. The contract was not executed in Kenya, was performed in Nigeria, and identified the Respondent as established under French law with residence in Paris, with no reference to the Kenyan office. Since Kenya has no 'Employment Tribunal', the ELRC could not be the forum the parties settled on, and the Court declined jurisdiction.

p. 3
02

Whether the clause was vague or unconscionable so as to displace the forum agreement (contra proferentem)

Holding

The Court rejected the invitation to rewrite the contract; any claim of unconscionability should have been raised earlier

Reasoning

The Claimant argued vagueness, ambiguity and unconscionability and invoked contra proferentem because the contract referred to 'Employment Tribunal' rather than 'French Employment Tribunal'. The Court found the clause read with Articles 1 and 13, the place of execution and performance, and the parties' identity pointed clearly to the French forum, and declined to rewrite the contract.

p. 3

Legal principles established

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  • Where parties to an employment contract have validly agreed on a foreign law and forum, the Employment and Labour Relations Court cannot rewrite the contract to clothe itself with jurisdiction
  • Kenya has no Employment Tribunal; the equivalent forum is the Employment and Labour Relations Court, and where the contract does not clearly name that forum the parties cannot be taken to have settled on it

Court orders

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  1. 1.The Notice of Preliminary Objection is upheld
  2. 2.The Court declines jurisdiction
  3. 3.The Statement of Claim filed on 25 July 2024 is struck out
  4. 4.No order on costs
Jurisdiction invoked
Preliminary objection on jurisdiction based on the parties' choice of French law and exclusive forum (French Employment Tribunal) in Articles 1 and 13 of the employment contract dated 13 September 2022

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, "Dahiya v Medecins Sans Frontieres (MSF) (Cause E569 of 2024) [2025] KEELRC 1801 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (a 'Cause' presented before the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1801/eng@2025-06-19

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