[2013] KEHAT 5 (KLR)

JKM v Dyncorp International (Cause 1 of 2013) [2013] KEHAT 5 (KLR) (15 November 2013) (Judgment)

Neutral citation: [2013] KEHAT 5 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 1 of 2013

JO Arwa, Chair, A Siparo, Vice Chair, M Deche, MN Kullow, S Bosire, J Muriuki & J Kyambi, Members

November 15, 2013

Between

JKM

Claimant

and

Dyncorp International

Respondent

Judgment

Jurisdiction - jurisdiction of the HIV Tribunal - ouster clause giving exclusive jurisdiction to foreign courts - whether the exclusive jurisdiction clause excluded all disputes arising between the Respondent and Claimant from the jurisdiction of the tribunal - whether there were special and exceptional circumstances that would justify the tribunal’s assumption of jurisdiction.Employment Law - contracts of employment - interpretation of the wording of contracts - whether the provisions of the contract excluded all kinds of disputes from the jurisdiction of the tribunal. Brief Facts: 1. The Claimant was employed by Dyncorp Internationals (Respondent). On or about 8 June 2012, the Respondent subjected the Claimant to mandatory HIV testing which was conducted by a Canadian specialist hospital in Dubai. The test results established that the Claimant was HIV positive. The Claimant was sent back to Kenya with instructions from the Respondent to conduct tests at Kenyatta National Hospital, Lancet Kenya, Aga Khan Hospital and Kemri who confirmed that the Claimant was HIV negative. On the basis of those results, the Claimant accepted the Respondent back into employment and even promoted him. However, when the Claimant returned to Dubai, another test was conducted and it revealed that he was HIV positive. Consequently, the Claimant was dismissed from employment. The Claimant insisted that he was HIV negative.

2. As a result of the events that transpired, the Claimant instituted a suit against the Respondent on the ground that his rights under section 13 and 33 of the HIV and AIDS Prevention and Control Act had been infringed and his fundamental rights under the Constitution had been violated. In response, the Respondent filed an application contesting the jurisdiction of the Tribunal. The Respondent relied on clause 20 of the Employment Agreement which provided that the contract was to be governed by and interpreted under the laws of commonwealth of Virginia, United States of America; and any dispute that arose under the contract had to be exclusively resolved in the Federal District Court of Virginia, if applicable, or the courts of the Commonwealth of Virginia.

3. The main issues for determination by the tribunal were:i.What types of disputes had been expressly referred to the jurisdiction of the courts of the state of Virginia in the USA by the parties;ii.What type of dispute was being referred to the tribunal by the Claimant;iii.Whether there were special and exceptional circumstances that would justify the Tribunal’s assumption of jurisdiction over the matter. Held:1. Clause 20 of the Agreement signed between the Claimant and the Respondent, referred to “all disputes that arise under the Contract” to the exclusive jurisdiction of the courts of the commonwealth of Virginia. It was clear from its terms that it was not referring to “all disputes that may arise between the Claimant and the Respondent” to the courts of commonwealth of Virginia. Hence, disputes that arose under the contract were disputes that involved alleged violations of any of the terms of the contract. Any other dispute that did not involve alleged violation of any of the terms of the contract did not arise under the contract.2. The Statement of Claim by the Claimant contained allegations that touched on alleged violations of the terms of the contract signed between the Claimant and the Respondent, as well as allegations of other violations that had absolutely no connection with that contract.3. All matters that touched on the alleged illegal termination of the Claimant’s Contract of Employment on account of his suspected HIV status or the allegations of subjection of the Claimant to discriminatory treatment in the work place fell clearly within the contract signed between the Claimant and the Respondent. Consequently, such disputes arose under the contract and were caught by the exclusive jurisdiction clause. Such disputes could only be entertained by the courts of the State of Commonwealth of Virginia in the United States of America.4. Allegations regarding subjecting the Claimant to mandatory HIV testing as well as allegations of unauthorized disclosure of information regarding the Claimant’s HIV status to third parties did not arise under the contract because they did not involve alleged violation of any of the terms of the said contract. The contract neither contained any clause dealing with mandatory HIV Testing nor unauthorized disclosure of confidential information. Any disputes touching on such allegations were never referred to the jurisdiction of the courts of the commonwealth of Virginia in the United States of America. Therefore, such matters could be adjudicated before the courts or tribunals in Kenya without offending the exclusive jurisdiction clause.5. The HIV and AIDS Tribunal had no jurisdiction to entertain any claims arising under the contract signed between the Claimant and the Respondent. Such matters had to be instituted before the courts of the state of the commonwealth of Virginia in the United States.6. The HIV and AIDS Tribunal, however, had jurisdiction to entertain any other dispute that arose between the Claimant and the Respondent outside the contract of employment signed between them. Such disputes included claims for damages for violation of the Claimant’s right to dignity, the Claimant’s right to liberty and security of the person and the Claimant’s right to privacy pursuant to the provisions either of the Constitution or the HIV and AIDS Prevention and Control Act. Such reliefs were available as against the Respondent in favour of any person who found themselves victims of such violation on account of acts or omissions of the Respondent, whether such persons were employees of the Respondent or not.7. The Claimant was not just complaining about mandatory tests conducted in Dubai by Canadian Specialists, he was also complaining about mandatory tests conducted in Kenya. In addition, the fact that some of the violations were committed abroad did not ipso facto deny the Tribunal jurisdiction to entertain a matter if it could have been shown that the matter had some necessary contact with Kenya and its laws. It was an inveterate principle of conflict of laws that in such cases the governing principle was the real and substantial connection test. The application of such test to the facts of the case revealed that for such disputes, the courts of the commonwealth of Virginia would be forums non convenience.

Application partly succeeded.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF NOVEMBER, 2013. ……………………………………………J. ARWA (CHAIRMAN)CHAIRMAN……………………………………………A. SIPARO (VICE-CHAIRPERSON)VICE-CHAIRPERSON……………………………………………M. DECHE (MEMBER)MEMBER……………………………………………M.N. KULLOW (MEMBER)MEMBER……………………………………………S. BOSIRE (DR-MEMBER)DRMEMBER……………………………………………J. MURIUKIMEMBER……………………………………………J. KYAMBIPROF.-MEMBER