[2018] KEELRC 1012 (KLR)
The court found that the issues raised by the respondent's objection involved serious questions of fact and law, particularly regarding the relationship between IRC Kenya and IRC New York-USA and the authority to terminate the claimant's contract. These matters could not be resolved through a preliminary objection,...
Source-derived case information.
- Citation
- [2018] KEELRC 1012 (KLR)
- Parties
- Claimant: Habiba Kadhey; Respondent: International Rescue Committee
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 139 of 2013
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; matter to proceed to trial on merits
- Judges
- NJ Abuodha
- Legal Topics
- Jurisdiction of Court, Employment Contracts, Preliminary Objection, Submission to Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habiba Kadhey
Claimant
International Rescue Committee
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court at Nairobi has jurisdiction over a dispute involving employment by a New York based organization for work performed outside Kenya.
- 2 Whether the respondent's unconditional memorandum of appearance constitutes submission to the jurisdiction of the court.
- 3 Whether IRC Kenya and IRC New York-USA are separate and distinct entities for purposes of the employment contract.
Ratio Decidendi
The court found that the issues raised by the respondent's objection involved serious questions of fact and law, particularly regarding the relationship between IRC Kenya and IRC New York-USA and the authority to terminate the claimant's contract. These matters could not be resolved through a preliminary objection, which is limited to pure points of law. The court also noted that the respondent's unconditional memorandum of appearance may amount to submission to the court's jurisdiction. Accordingly, the objection was disallowed and the matter was directed to proceed to trial on its merits.
Court Disposition
preliminary objection dismissed; matter to proceed to trial on merits
Orders
- The respondent's preliminary objection is disallowed.
- The matter shall proceed to trial on its merits.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE 139 OF 2013
HABIBA KADHEY........................................................CLAIMANT
VERSUS
INTERNATIONAL RESCUE COMMITTEE.......RESPONDENT
RULING
1. An objection was raised by the respondent to the effect that the claimant having been employed by New York based organization to work in Juba and not in Kenya, cannot legally institute a suit in Kenya’s courts and specifically ELRC at Nairobi which does not have jurisdiction to entertain the suit.
2. In opposition to the objection, claimant has contended that the respondent having entered unconditional memorandum of appearance willingly submitted to the jurisdiction of the court. In support of the submission counsel relied on the case of Kariti & Co Vs South British Insurance Co Ltd [1998] KLR.The claimant further submitted that she was a Kenyan, was interviewed for the position of finance controller in Kenya, inducted for the job here in Kenya and her termination letter was drawn by the respondent’s office in Nairobi Kenya and issued to her in Kenya.
3. The response to the objection by the claimant raises serious questions of fact and law which cannot be resolved by way of a preliminary objection. The relationship between IRC Kenya and IRC New York-USA would require to be decided to indeed show that the two are separate and distinct organizations from each other. The fact that IRC-Kenya issued the claimant with her termination letter raises fundamental question of law of contract to wit; whether a party not privy to a contract can terminate the same.
4. In this circumstance, the court will disallow the objection and direct that the matter proceeds to trial on merits.
5. It is ordered.
Dated at Nairobi this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
Delivered this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.