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ELRCDismissedMemorandum of Claim dated 9th September 2024· [2025] KEELRC 2978 (KLR)

Semiti v Mercy Ships & another (Employment and Labour Relations Cause E755 of 2024) [2025] KEELRC 2978 (KLR)

Employment and Labour Relations Court
30 October 2025
3,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Employment Court confirmed that foreign companies operating in Kenya can be sued and served here without special permission.

What this practically means

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Executive summary

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The Claimant sued the Respondents alleging an employment relationship established through a contract dated 30th January 2023, in which the 2nd Respondent acted as employer of record for the 1st Respondent, a foreign corporation registered in Texas, USA. She alleges irregular termination through redundancy and seeks reliefs in a Memorandum of Claim dated 9th September 2024. The 1st Respondent filed a Notice of Preliminary Objection contending that, as a foreign corporation with no place of business in Kenya, it cannot be sued in Kenya and is subject only to US federal laws. In submissions, its advocates added a second ground: that Summons to Enter Appearance could only have been served on it with the court's leave under Order 5 of the Civil Procedure Rules. The court found no affidavit of service on the record, and declined to make any finding on the mode of service, holding such a finding would be purely speculative; further, the service point was raised for the first time in submissions without being anchored in pleadings or affidavit evidence. On the merits of the objection, the court held that the material on record, including the employment agreement and the 2nd Respondent's Statement of Defense, showed the 1st Respondent had ongoing programs and presence in Kenya through the 2nd Respondent as its disclosed agent, so service at the agent's business premises would be permissible irrespective of foreign registration. The Court of Appeal decisions relied on (Raytheon and Misnak) were distinguished on the facts, as those foreign companies had no Kenyan presence. The court further held that a foreign corporation enjoys no absolute immunity from suit in Kenya unless covered by the Privileges and Immunities Act Cap 179, and that the connecting factors - contracting, performance and breach all in Kenya, plus clause 24.1 submitting to non-exclusive Kenyan jurisdiction and Kenyan law - confer jurisdiction. The preliminary objection was dismissed, with costs of the objection to abide the outcome of the suit.

Key legal issues

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01

Service of Summons to Enter Appearance on a foreign corporation out of jurisdiction without leave

Holding

The court declined to make a definitive finding on whether service was effected out of jurisdiction because there was no affidavit of service, and the issue was raised for the first time in submissions without being anchored on pleadings or affidavit evidence.

Reasoning

The court record contained no affidavit of service, making it impossible to determine how the Respondents learned of the suit. Both Respondents had entered appearance. The court held that a determination would be speculative conjecture, and that a matter of fact raised only in counsel's bare submissions, without being pleaded or deponed to, cannot found a finding of improper service.

p. 3
02

Whether the 1st Respondent had presence in Kenya permitting service without leave

Holding

The material on record, including the employment contract and the 2nd Respondent's Statement of Defense, indicated the 1st Respondent had ongoing programs and presence in Kenya, so service could properly be effected at its place of business through the 2nd Respondent, its disclosed agent.

Reasoning

The employment agreement hired the Claimant to work for the 1st Respondent in Kenya, and the 2nd Respondent's defence implied the 1st Respondent had regional staff in Kenya. Under Order 5 rule 3(b)(iii), a corporation with presence in Kenya may be served at its place of business regardless of whether it is locally or foreign registered.

p. 4
03

Whether a foreign corporation can be sued in Kenyan courts

Holding

A foreign corporation is not absolutely immune from suit in Kenya; only bodies covered by the Privileges and Immunities Act Cap 179 may claim such immunity, and the 1st Respondent did not demonstrate such coverage.

Reasoning

The court framed the question within private international law, applying connecting factors. The contract was entered into, performed and allegedly breached in Kenya; the redundancy letters were issued in Kenya; and clause 24.1 of the contract submitted to the non-exclusive jurisdiction of Kenyan courts and the application of Kenyan law.

p. 5
04

Distinguishability of the Court of Appeal authorities relied on by the 1st Respondent

Holding

Raytheon Aircraft Credit Corporation v Air Al-Faraj and Misnak International (UK) Limited v 4MB Mining Limited were distinguishable because in both cases the foreign company had no presence or business interests in Kenya, unlike the 1st Respondent.

Reasoning

In Raytheon, the parties had chosen foreign law and courts, and the lessor had no business in Kenya; here the parties chose Kenyan law and courts. In Misnak, the appellant had no presence in Kenya; here the 1st Respondent had ongoing programs in Kenya through the 2nd Respondent as its disclosed agent.

p. 5

Legal principles established

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  • A foreign corporation with ongoing programs and presence in Kenya, whether direct or through an agent, may be served at its place of business in Kenya without leave, and is not immune from suit absent coverage under the Privileges and Immunities Act.
  • Jurisdiction over a foreign party is determined by connecting factors such as the place of contracting, performance and breach of the contract.

Court orders

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  1. 1.The 1st Respondent's preliminary objection to the court's jurisdiction is not merited and fails
  2. 2.Costs of the objection shall abide the outcome of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the applicable law; private international law connecting factors and contractual submission to Kenyan courts (clause 24.1 of the employment contract)

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, "Semiti v Mercy Ships & another (Employment and Labour Relations Cause E755 of 2024) [2025] KEELRC 2978 (KLR)", Case Analysis (2025). Memorandum of Claim dated 9th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2978/eng@2025-10-30

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