Semiti v Mercy Ships & another (Employment and Labour Relations Cause E755 of 2024) [2025] KEELRC 2978 (KLR)
The bottom line
#The Employment Court confirmed that foreign companies operating in Kenya can be sued and served here without special permission.
What this practically means
#Executive summary
#Key legal issues
#Service of Summons to Enter Appearance on a foreign corporation out of jurisdiction without leave
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.
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.
Whether the 1st Respondent had presence in Kenya permitting service without leave
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.
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.
Whether a foreign corporation can be sued in Kenyan courts
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.
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.
Distinguishability of the Court of Appeal authorities relied on by the 1st Respondent
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.
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.
Legal principles established
#- 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
#- 1.The 1st Respondent's preliminary objection to the court's jurisdiction is not merited and fails
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.