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ELRCAllowedNot stated in the judgment (Memorandum of Appeal dated 12th March 2024)· [2025] KEELRC 2887 (KLR)

Omukoto v Shah (Employment and Labour Relations Appeal E011 of 2024) [2025] KEELRC 2887 (KLR)

Employment and Labour Relations Court
24 October 2025
AMAnna Ngibuini Mwaure
2,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nakuru against a ruling of Honourable B. Ochieng, Senior Principal Magistrate, upholding the Respondent's preliminary objection that the Kenyan courts lacked jurisdiction because Clause 13 of an overseas domestic worker employment contract designated the courts of England and Wales as having exclusive jurisdiction. The Appellant, an employee, argued that the contract was executed and performed in Kenya, both parties reside in Kenya, all material evidence and witnesses are in Kenya, and litigating in England would breach the constitutional right of access to justice under Article 48. The Respondent relied on the sanctity of contract and the burden on a party seeking to escape a jurisdiction clause to show strong reasons, none of which were proved. The court, applying Selle v Associated Motor Boat Company on the first appellate duty and National Bank of Kenya v Pipeplastic Samkolit on non-rewriting of contracts, found that strong reasons justified departing from the clause: Clause 3(2) preserved the employee's existing Kenyan contract; both parties reside in Kenya; evidence is local; and litigation abroad would prejudice the Appellant. The court held the Magistrate erred and set aside the preliminary objection dated 19th August 2022, directing the suit to proceed before the Chief Magistrate's Court in Kenya. On limitation, applying section 89 of the Employment Act and finding no document proving the date of separation, the court took the separation date as on or about 4th October 2019 and held the claim filed on 13th July 2022 was not time-barred. The appeal was allowed with costs in the cause.

Key legal issues

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01

Whether the exclusive jurisdiction clause (Clause 13, courts of England and Wales) barred the Kenyan courts from hearing the employment claim

Holding

The Magistrate erred in failing to consider exceptional reasons justifying litigation in Kenya; the preliminary objection should be set aside and the suit proceed in Kenya.

Reasoning

The court acknowledged that jurisdiction clauses are generally binding and cannot be rewritten, but drew on United India Insurance to hold that strong reasons permit departure. Clause 3(2) preserved the employee's existing Kenyan employment contract, which strengthened the exception. Strong reasons existed: both parties reside in Kenya, contract executed and performed partly in Kenya, evidence and witnesses in Kenya, convenience and prejudice to the Appellant. The threshold for exception was met.

p. 4
02

Whether the claim was time-barred under section 89 of the Employment Act

Holding

In the absence of any document proving the date of termination or separation, the court took the separation date to be on or about 4th October 2019, so the claim filed on 13th July 2022 was within three years and not time-barred.

Reasoning

The court examined the foreign contract covering 11th May 2019 to 4th October 2019 and noted payments made on 1st July 2019 and 7th October 2019. No document showed the actual date of termination; the Respondent's claim of desertion in 2019 gave no specific date. On that basis the claim filed on 13th July 2022 fell within the three-year limitation period under section 89 of the Employment Act.

p. 5

Legal principles established

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  • A court cannot rewrite a contract between parties; parties are bound by their terms unless coercion, fraud or undue influence is pleaded and proved.
  • Exclusive jurisdiction clauses should be respected, but Kenyan courts may assume jurisdiction where strong reasons are shown, such as the contract being performed in Kenya.
  • Strong reasons justifying departure from a contractual jurisdiction clause include parties residing in Kenya, location of evidence, convenience of litigating locally and potential prejudice.
  • Under section 89 of the Employment Act, claims arising out of employment or a contract of service must be commenced within three years of the act or default complained of.
  • A first appellate court must re-examine, reassess and reanalyse the evidence and reach its own justified conclusion.

Court orders

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  1. 1.The Preliminary Objection dated 19th August 2022 be set aside
  2. 2.The suit to proceed before the Chief Magistrate's Court in Kenya
  3. 3.The appeal is allowed and the claim to proceed to hearing
  4. 4.The costs of the appeal to be in the cause
On appeal from
Chief Magistrate's Employment and Labour Relations Court at Nakuru
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Employment and Labour Relations Court at Nakuru (appeal from ruling upholding a preliminary objection)

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, "Omukoto v Shah (Employment and Labour Relations Appeal E011 of 2024) [2025] KEELRC 2887 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 12th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2887/eng@2025-10-24

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