Tonui v DL Group of Companies Limited (Cause E524 of 2023) [2024] KEELRC 2674 (KLR)
The bottom line
#A Kenyan employment court confirmed that picking Tanzanian law in a contract does not stop Kenyan courts from hearing the dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether clause 16 of the employment contract designating Tanzanian law as governing law ousts the Court's territorial jurisdiction
- 2.Whether the claim falls outside the Court's territorial jurisdiction because the services were performed in Tanzania
- 3.Whether the Preliminary Objection meets the standard of a pure point of law
Key legal issues
#Whether a governing-law clause conferring Tanzanian law ousts the ELRC's jurisdiction over the employment dispute
It does not; choice of law is distinct from choice of jurisdiction, and the contract was silent on the forum, so the objection fails.
The court distinguished between choice of law and choice of forum as separate conflict-of-laws principles. Clause 16 designated Tanzanian law as governing the contract, which the parties consciously chose, but the contract contained no clause designating the forum for disputes. In the absence of a consensual or statutory choice of forum, the court noted that jurisdiction may be determined by factual questions such as domicile and place of performance or breach, which must be proved at trial. Part XI of the Employment Act on foreign contracts of service may also apply. The preliminary objection therefore failed as it conflated the two concepts and sought to resolve factual matters on a point of law.
Whether the preliminary objection raised a pure point of law
The objection could not succeed because determining it would require interrogation of contested facts.
The Claimant argued, citing Mukisa Biscuit, that the objection would require the court to interrogate contested facts such as the existence of the employment relationship and where the contract was performed. The court's reasoning on choice of law versus forum, and its observation that the considerations for forum where there is no consent are factual questions which must be proved at trial, aligns with this position and supports dismissal of the objection.
Legal principles established
#- A choice of law clause does not determine the choice of jurisdiction or forum; the two are distinct conflict-of-laws questions.
- Where a contract is silent on the forum, jurisdiction depends on factual considerations such as domicile of the parties and place of performance or breach, which must be proved at trial.
Court orders
#- 1.The Notice of Preliminary Objection is dismissed with costs
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 (Part XI on foreign contracts of service considered); not expressly stated in judgment
Relief refused
#Respondent's Preliminary Objection on jurisdiction
The contract provided for choice of law only, not choice of forum; jurisdictional questions are factual matters for trial
Costs
The Notice of Preliminary Objection is dismissed with costs (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.
Considering that the contract only provided for the applicable or guiding law but did not provide for the forum in cases of disputes, the Court finds the Notice of Preliminary Objection without merit.
The choice of law is thus not in question herein.
Some of the considerations in determining the jurisdiction or forum where there is no consent include domicile of the parties or where the contract was performed or breach occurred.
Further, Part XI of the Employment Act, 2007 addresses the question of foreign contracts of service.
The Notice of Preliminary Objection is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tonui v DL Group of Companies Limited (Cause E524 of 2023) [2024] KEELRC 2674 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2674/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.