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ELRCStruck OutNot stated in the judgment as provided (a 'Cause' presented before the Employment and Labour Relations Court)

Dahiya v Medecins Sans Frontieres (MSF) (Cause E569 of 2024) [2025] KEELRC 1801 (KLR)

Employment and Labour Relations Court
19 June 2025
RSRadido Stephen
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court struck out a worker's case against MSF because his contract required disputes to be heard in France, not Kenya.

What this practically means

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Executive summary

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The Claimant, Issack Yussuf Dahiye, sued Médecins Sans Frontières (MSF) on 25 July 2024 claiming damages for unfair and wrongful termination, damages for violation of international and domestic labour rights, a formal retraction of allegedly scandalous reports, a proper Certificate of Service, and costs and interests. The Respondent filed a Notice of Preliminary Objection contending that the Court lacked jurisdiction because the employment contract dated 13 September 2022 was governed by French law and vested exclusive jurisdiction in the French Employment Tribunal, and the contract was executed and performed outside Kenya. The Claimant opposed, arguing that Articles 1 and 13 of the contract were vague and ambiguous, that the contra proferentem rule should favour him, and that the objection was not a proper preliminary objection as it required proof of facts such as unconscionability. The Court found that the parties had settled on French law as the applicable law, and that the contractual reference to 'the employment tribunal' could not mean the Employment and Labour Relations Court since Kenya has no Employment Tribunal. The contract was not executed in Kenya, was performed in Nigeria, identified the Respondent as established under French law with its residence in Paris, and made no reference to the Kenyan office or Nigerian law and forum. The Court held that the agreed forum was the French Employment Tribunal and that it could not rewrite the contract to clothe itself with jurisdiction, adding that claims of unconscionability should have been raised earlier. The Court upheld the preliminary objection, declined jurisdiction and struck out the Statement of Claim, with no order on costs given that the Cause was struck out before pre-trial directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Employment and Labour Relations Court has jurisdiction over the dispute given the choice-of-law and choice-of-forum clauses in the employment contract
  2. 2.Whether the Notice of Preliminary Objection meets the threshold of a proper preliminary objection capable of disposing of the suit in limine

Key legal issues

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01

Effect of the choice-of-law and forum clause (Article 13) on the Court's jurisdiction

Holding

The parties agreed on French law and the French Employment Tribunal; the ELRC is not the tribunal the parties settled on and therefore lacks jurisdiction

Reasoning

Article 13 made the contract subject to French law and the jurisdiction of 'the employment tribunal'. The contract was not executed in Kenya, was performed in Nigeria, and identified the Respondent as established under French law with residence in Paris, with no reference to the Kenyan office. Since Kenya has no 'Employment Tribunal', the ELRC could not be the forum the parties settled on, and the Court declined jurisdiction.

p. 3
02

Whether the clause was vague or unconscionable so as to displace the forum agreement (contra proferentem)

Holding

The Court rejected the invitation to rewrite the contract; any claim of unconscionability should have been raised earlier

Reasoning

The Claimant argued vagueness, ambiguity and unconscionability and invoked contra proferentem because the contract referred to 'Employment Tribunal' rather than 'French Employment Tribunal'. The Court found the clause read with Articles 1 and 13, the place of execution and performance, and the parties' identity pointed clearly to the French forum, and declined to rewrite the contract.

p. 3

Legal principles established

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  • Where parties to an employment contract have validly agreed on a foreign law and forum, the Employment and Labour Relations Court cannot rewrite the contract to clothe itself with jurisdiction
  • Kenya has no Employment Tribunal; the equivalent forum is the Employment and Labour Relations Court, and where the contract does not clearly name that forum the parties cannot be taken to have settled on it

Court orders

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  1. 1.The Notice of Preliminary Objection is upheld
  2. 2.The Court declines jurisdiction
  3. 3.The Statement of Claim filed on 25 July 2024 is struck out
  4. 4.No order on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

Jurisdiction invoked
Preliminary objection on jurisdiction based on the parties' choice of French law and exclusive forum (French Employment Tribunal) in Articles 1 and 13 of the employment contract dated 13 September 2022

Relief refused

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All relief sought in the Statement of Claim (damages for unfair termination, damages for violation of labour rights, retraction of reports, certificate of service, costs and interests)

The Court lacked jurisdiction because the parties had agreed on French law and the French Employment Tribunal as the forum

p. 3

Costs

No order on costs considering that the Cause has been struck out even before the taking of pre-trial directions.

Quotable passages

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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 jurisdictional forum agreed on by the parties was the Employment Tribunal under French law, and that it is not within the province of this Court to re-write the parties' contract and clothe itself with jurisdiction
p. 3Choice of forum clause ousts ELRC jurisdiction
Kenya does not have an Employment Tribunal. It has the Employment and Labour Relations Court, which is a superior Court of record with the status of the High Court.
p. 3Status of the ELRC and meaning of the contractual forum clause
In light of the above, the Court upholds the Notice of Preliminary Objection, declines jurisdiction and strikes out the Statement of Claim filed in Court on 25 July 2024.
p. 3Final orders - disposition
No order on costs considering that the Cause has been struck out even before the taking of pre-trial directions.
p. 3Costs order
If the Claimant believed that the contract or portions of it were unconscionable, he should have engaged with the Respondent while the sun was still shining.
p. 3Obiter on unconscionability

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dahiya v Medecins Sans Frontieres (MSF) (Cause E569 of 2024) [2025] KEELRC 1801 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (a 'Cause' presented before the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1801/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.