[2016] KEELRC 980 (KLR)
The court held that since the employment contract did not specify the applicable law or jurisdiction, and given that the facts regarding jurisdiction were not fully established, it would be unsafe to strike out the claim at the preliminary stage. The issue of jurisdiction involves factual matters that require...
Source-derived case information.
- Citation
- [2016] KEELRC 980 (KLR)
- Parties
- Claimant: Antony Muthama Musila; Respondent: Hotel Intra-Africa Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 971 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objection not upheld; main claim to proceed to hearing.
- Judges
- L Ndolo
- Legal Topics
- Jurisdiction of Court, Employment Contracts, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Muthama Musila
Claimant
Hotel Intra-Africa Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court of Kenya has jurisdiction over a dispute arising from an employment contract with a company incorporated and operating in South Sudan.
- 2 Whether the absence of a jurisdiction clause in the employment contract precludes the Kenyan court from hearing the matter at the preliminary stage.
Ratio Decidendi
The court held that since the employment contract did not specify the applicable law or jurisdiction, and given that the facts regarding jurisdiction were not fully established, it would be unsafe to strike out the claim at the preliminary stage. The issue of jurisdiction involves factual matters that require evidence from both parties. Therefore, the preliminary objection was not upheld at this stage, and the main claim will proceed to hearing, with the issue of jurisdiction remaining open for determination upon presentation of evidence.
Court Disposition
Preliminary objection not upheld; main claim to proceed to hearing.
Orders
- The main claim will proceed to hearing.
- The issue of jurisdiction remains open for determination at the hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 971 OF 2014
ANTONY MUTHAMA MUSILA.......................................................................CLAIMANT
VS
HOTEL INTRA-AFRICA LIMITED.............................................................RESPONDENT
RULING
1. This ruling proceeds from a preliminary objection raised by the Respondent in paragraph 8 of the Response to the Statement of Claim. The Respondent states that the cause of action herein arose outside the jurisdiction of this Court.
2. The Respondent submits that it is a company incorporated in the Republic of South Sudan where it carries on its business and operations. Kenyan Courts therefore lack jurisdiction to entertain a claim arising from an employment contract to which the Respondent is a party.
3. A preliminary objection as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A 696 is one which “raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
4. The Claimant's employment with the Respondent is evidenced by an appointment letter dated 26th December 2011. While this letter contains the terms and conditions of employment, it neither specifies the applicable law nor the courts with jurisdiction to hear and determine any disputes arising from the contract of employment. The Claimant did not respond to the objection and the Court did not therefore have the benefit of his position on these matters.
5. In my view, these are important issues of fact that would aid the Court in determining the issue of jurisdiction. That being the case, I am of the opinion that it would be unsafe to strike out the Claimant's claim on account of lack of jurisdiction in limine. In similar vein, I will not rule on the Respondent's objection at this stage. The net effect is that the main claim will proceed to hearing, the issue of jurisdiction remains live and parties are at liberty to adduce evidence on this account.
6. The costs of this objection will be in the cause.
7. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH DAY OF JULY 2016
LINNET NDOLO
JUDGE
Appearance:
Mr. Amadi for the Claimant
Mr. Njuguna for the Respondent