[2016] KEELRC 967 (KLR)
The court found that the preliminary objection raised by the Respondent involved issues of fact, particularly regarding where the contract was executed and performed, and the intention of the parties. These factual matters must be determined through a full hearing, not at the preliminary stage. The existence of a...
Source-derived case information.
- Citation
- [2016] KEELRC 967 (KLR)
- Parties
- Claimant: Captain (Rtd) Charles K.W. Masinde; Respondent: Intergovernmental Authority on Development
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1119 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- Preliminary objection not upheld at this stage; main claim to proceed to hearing.
- Judges
- L Ndolo
- Legal Topics
- Jurisdiction of Court, Choice of Law Clauses, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Captain (Rtd) Charles K.W. Masinde
Claimant
Intergovernmental Authority on Development
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether Clause 11 of the Employment Service Contract, which subjects the contract to the law of Djibouti, ousts the jurisdiction of the Kenyan Employment and Labour Relations Court.
- 2 Whether the facts surrounding the execution and performance of the contract affect the determination of jurisdiction.
Ratio Decidendi
The court found that the preliminary objection raised by the Respondent involved issues of fact, particularly regarding where the contract was executed and performed, and the intention of the parties. These factual matters must be determined through a full hearing, not at the preliminary stage. The existence of a choice of law clause in the contract does not, by itself, oust the jurisdiction of the Kenyan court, especially where the contract was executed in Kenya and the Claimant performed his duties primarily from Nairobi. Therefore, the objection could not be determined in limine and the main claim should proceed to hearing, with parties at liberty to adduce evidence on the subject...
Court Disposition
Preliminary objection not upheld at this stage; main claim to proceed to hearing.
Orders
- The main claim will proceed to hearing.
- Parties are at liberty to adduce evidence on the subject matter of the objection.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO 1119 OF 2014
CAPTAIN (RTD) CHARLES K.W. MASINDE......................................................CLAIMANT
V
INTERGOVERNMENTAL AUTHORITY ON DEVELOPMENT.....................................RESPONDENT
RULING
1. In its Memorandum of Response dated 24th July and filed in Court on 28th July 2014, the Respondent raises the following preliminary objection which is the subject of this ruling:
“The Respondent states the under Clause 11 of the Employment Service Contract the relationship between the claimant and the respondent was to be subject to the Law of the Republic of Djibouti and the services were to be performed in the Republic of Somalia and consequently an objection in limine shall be raised that the Industrial Court lacks jurisdiction to hear, and adjudicate the Claimant's claim.”
2. By its objection the Respondent states that this Court lacks jurisdiction to entertain the Claimant's claim and relies on Clause 11 of the Employment Service Contract which states:
“The contracting parties agree that this contract for consultancy service is subject to the law of Djibouti.”
3. The question then is whether this clause ousts the jurisdiction of this Court to entertain disputes arising from the said contract. In the submissions filed on behalf of the Claimant it is submitted that whereas Clause 11 provides that the applicable law to govern the contract would be the law of Djibouti this did not oust the jurisdiction of Kenyan Courts to determine disputes arising from the contract.
4. The Claimant further states that from the time he signed the contract with the Respondent in Nairobi in October 2010, he never set foot in Djibouti but discharged his duties from Nairobi while traveling occasionally to Mogadishu and Addis-Ababa as the Respondent had not facilitated his relocation to Mogadishu.
5. The contract in issue was evidently executed in Nairobi, Kenya and under it the Claimant was engaged as a Senior Liaison Officer, Mogadishu. The Claimant however states that he never set foot in Djibouti and that he only made occasional visits to Mogadishu. He adds that he performed most of his functions from Nairobi where the Respondent also has an office.
6. A preliminary objection as defined in the famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A 696 is one which raises a pure point of law and is argued on the basis that all the facts pleaded are uncontested.
7. In his submissions, the Claimant raises issues of fact whose determination will aid in constructing the intention of the parties to the employment contract forming the subject of the dispute now before the Court. In my view, this can only happen in a full hearing not in limine.
8. Consequently, and without overruling the objection at this stage, I direct that the main claim will proceed to hearing. The parties are at liberty to adduce evidence on the subject matter of the objection.
9. The costs of the objection will abide the outcome of the main claim.
10. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH DAY OF JULY 2016
LINNET NDOLO
JUDGE
Appearance:
Miss Guserwa for the Claimant
Mr. Amolo for the Respondent