Nick Musili Musyoka v Dac Avition (EA) Limited [2021] KEELRC 23 (KLR)
The bottom line
#Kenya's Employment Court ruled that a foreign forum clause in a Kenyan employment contract cannot block a Kenyan employee's claim, and dismissed the employer's late attempt to defend.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to hear and determine this matter notwithstanding the contractual choice of Montreal, Quebec, Canada as the judicial jurisdiction
- 2.Whether the matter should proceed undefended or the respondent should be allowed to defend the suit
Key legal issues
#Whether the exclusive foreign jurisdiction clause (Montreal, Quebec, Canada) ousted the Kenyan court's jurisdiction
The court retained jurisdiction because the contract was executed in Kenya, between Kenyans (the respondent being a Kenyan-registered company), payable in Kenya Shillings, and its benefits are secured under Kenyan law; the party seeking to avoid Kenyan jurisdiction bears a heavy burden
The court applied the Owners of the Motor Vessel 'Lillian S' principle that jurisdiction must be addressed first, then the ouster-clause principles from United India Insurance as restated in Universal Pharmacy. Finding the contract made and performed in and from Kenya, and invoking sections 10(3)(f), 86 and 89 of the Employment Act, it held the claimant's protections are anchored in Kenyan law and the foreign clause could not defeat them.
Whether the respondent should be allowed to defend the suit after judgment was set to be rendered undefended
No. The respondent entered appearance in March 2020, was aware of the proceedings throughout, was represented and granted repeated indulgences including an adjournment allocated in the presence of its advocate, and failed to file a response
The court traced the litigation chronology showing service, appearance, extensions of time to plead, and hearing dates allocated in the presence of the respondent's advocates. Relying on Habo Agencies and Salat, it held that blaming counsel does not absolve a client who must follow up its case, that Article 159 does not excuse breach of procedure, and that the negligent counsel is the respondent's recourse.
Legal principles established
#- A contract of employment executed in Kenya by Kenyans for work within Kenya is subject to Kenyan law and cannot be defeated by a foreign choice-of-forum clause
- The burden is a heavy one on a party seeking to oust Kenyan jurisdiction under a foreign forum clause
- Parties have a responsibility to show interest in and follow up their cases even when represented by counsel; blame on advocates alone does not excuse them
- Article 159 of the Constitution was never meant to aid the overthrow of rules of procedure or to succor parties who exhibit scant respect for rules and timelines
Court orders
#- 1.The application dated 19th November, 2021 is dismissed with costs to the claimant
- 2.The judgement put in abeyance on 25th November, 2021 shall be delivered on 16th December, 2021 at 8.30AM
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 10(3)(f), 86 and 89) over a contract of employment executed in Kenya between Kenyan parties
Relief refused
#Prayer to strike out the Statement of Claim for want of jurisdiction
The court found the contract of employment was made in Kenya, for a Kenyan claimant, in Kenyan currency, and its benefits are secured under Kenyan law; the ouster clause was not shown to defeat the court's jurisdiction
Prayer to set aside the order directing the claim to proceed as undefended and grant leave to defend
The respondent was aware of the proceedings, entered appearance, was given repeated indulgences and adjournments, and blaming counsel was insufficient; the offer of throwaway costs was not a cure
Costs
The application dated 19th November, 2021 is dismissed with costs to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds not matter to justify the application dated 19 th November, 2021 which is dismissed with costs to the claimant. Judgement put in abeyance on 25th November, 2021 shall be delivered on 16th December, 2021 at 8.30AM.
This court has the requisite jurisdiction to hear and determine this matter.
Accordingly, the proceedings herein have come this far with the full knowledge of the respondent and to offer to pay throwaway costs is not a cure to the inaction and omission to file response. Such window is closed as judgement is due for good cause.
The respondent is not without recourse. A negligent counsel must be brought to bear and carry the burden, loss and damage incurred.
Issues in the judgment
#The judgment refers to both 'clause 23' and 'clause 34' of the employment contract as the jurisdiction clause
Counsel's name inconsistently spelled 'Clive Mshweshwe' and 'Clive Mushweshwe' within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nick Musili Musyoka v Dac Avition (EA) Limited [2021] KEELRC 23 (KLR)", Case Analysis (2021). Statement of Claim dated and filed on 21/02/2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/23/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.