1. Rita Kanana (the Claimant) sued Dolphin Professional Services Ltd (the Respondent) on 29 January 2025, alleging unfair termination of employment and breach of contract.
2. On 19 February 2025, the Respondent filed a Notice of Preliminary Objection contending that:
(i) This Honourable Court lacks the requisite jurisdiction to entertain, hear, determine and/or grant the prayers sought in the Statement of Claim as filed.
(ii) The Statement of Claim as filed is incompetent and fatally defective for want of compliance with the mandatory provisions of section 20 of the Civil Procedure Act, Cap 21 Laws of Kenya as read with Order 5 Rule 1 and 21 of the Civil Procedure Rules, 2010.
(iii) The Statement of Claim as filed is incompetent for want of compliance with the mandatory provisions of Rule 28(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024.
(iv) The Petition as filed herein is frivolous, vexatious and utter abuse of the court process and a waste of precious judicial time.
3. On 21 February 2025, the Respondent filed a Motion seeking orders:
(i) THAT pending the hearing and determination of this application, there be a stay of the proceedings.
(ii) THAT this Honourable Court be pleased to strike out the suit.
(iii) THAT the costs of this application be provided for.
4. The grounds supporting the Motion were that the Respondent was registered in Tanzania and, therefore, the Claimant should have first sought leave of the Court to serve outside jurisdiction; the Claimant had not served the Notice of Summons and that the proceedings were a waste of the Court’s precious time.
5. The Claimant filed a replying affidavit on 24 February 2025, in opposition to the Notice of Preliminary Objection and a replying affidavit opposing the Motion on 6 March 2025.
6. In the affidavits, the Claimant deponed that the contract was signed in Kenya and performance was in Kenya; the Respondent had a subsidiary, DPSL Tanzania Ltd incorporated and registered in Kenya; the contract was subject to Kenyan and Tanzanian laws; the objections were based on procedural technicalities; the validity or lifetime of the Notice of Summons had not lapsed and that the Preliminary Objection was filed before the service of Notice of Summons.
7. The Court gave directions on 6 May 2025 on the filing and exchange of submissions. The Respondent’s submissions were not on record by the agreed timeline of 13 May 2025. The Claimant’s submissions were also not on record.
8. The Court has considered the Motion, Notice of Preliminary Objection and affidavits.
Choice of law and choice of forum
9. Clause 13 of the contract between the Claimant and Respondent made it subject to both Kenyan and Tanzanian laws.
10. The place of agreement and performance of the contract was stated in clauses 2 and 3 as Nairobi, Kenya but with travel outside of Kenya as directed by the Respondent from time to time.
11. The Court, therefore, finds that it has the choice of law and choice of forum jurisdiction over the dispute on the basis of clauses 2, 3 and 13 of the contract.
Service outside jurisdiction and striking out of the Cause
12. Under Rule 23(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024, a Notice of Summons is valid in the first instance for 6 months.
13. Rule 28(3) of the Rules envisage that the Court will grant leave to serve a party who resides or is based outside the jurisdiction of the Court.
14. The Respondent contended in its Motion that the Claimant had not obtained the leave to serve it outside the jurisdiction of the Court and, therefore, the Cause should be struck out.
15. The Claimant deponed in her replying affidavit that the Respondent filed a Response and the Notice of Preliminary Objection before service of the Notice of Summons had been effected.
16. The Respondent would not have entered appearance or filed a Response if the Claimant had not served it.
17. It is apparent that the Claimant served the Respondent before securing the leave of the Court.
18. The Notice of Summons have a life of 6 months and have not lapsed by the time of the delivery of this Ruling.
19. Any prejudice to the Respondent if at all, caused to the Respondent can be ameliorated by the grant of leave and the striking out of the Cause would in the circumstances amount to a judicial overkill.
20. The Court will therefore decline the request to strike out the Cause merely because leave was not granted before service outside the Court’s jurisdiction.
21. Before concluding, the Court notes that the delivery of this Ruling was brought backwards with notice to the parties because the Court will not sit on 26 June 2025
Orders
22. Flowing from the above, the Court finds that both the Notice of Preliminary Objection filed on 19 February 2025 and Motion filed on 21 February 2025, are without merit and are dismissed with costs.
2. On 19 February 2025, the Respondent filed a Notice of Preliminary Objection contending that:
(i) This Honourable Court lacks the requisite jurisdiction to entertain, hear, determine and/or grant the prayers sought in the Statement of Claim as filed.
(ii) The Statement of Claim as filed is incompetent and fatally defective for want of compliance with the mandatory provisions of section 20 of the Civil Procedure Act, Cap 21 Laws of Kenya as read with Order 5 Rule 1 and 21 of the Civil Procedure Rules, 2010.
(iii) The Statement of Claim as filed is incompetent for want of compliance with the mandatory provisions of Rule 28(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024.
(iv) The Petition as filed herein is frivolous, vexatious and utter abuse of the court process and a waste of precious judicial time.
3. On 21 February 2025, the Respondent filed a Motion seeking orders:
(i) THAT pending the hearing and determination of this application, there be a stay of the proceedings.
(ii) THAT this Honourable Court be pleased to strike out the suit.
(iii) THAT the costs of this application be provided for.
4. The grounds supporting the Motion were that the Respondent was registered in Tanzania and, therefore, the Claimant should have first sought leave of the Court to serve outside jurisdiction; the Claimant had not served the Notice of Summons and that the proceedings were a waste of the Court’s precious time.
5. The Claimant filed a replying affidavit on 24 February 2025, in opposition to the Notice of Preliminary Objection and a replying affidavit opposing the Motion on 6 March 2025.
6. In the affidavits, the Claimant deponed that the contract was signed in Kenya and performance was in Kenya; the Respondent had a subsidiary, DPSL Tanzania Ltd incorporated and registered in Kenya; the contract was subject to Kenyan and Tanzanian laws; the objections were based on procedural technicalities; the validity or lifetime of the Notice of Summons had not lapsed and that the Preliminary Objection was filed before the service of Notice of Summons.
7. The Court gave directions on 6 May 2025 on the filing and exchange of submissions. The Respondent’s submissions were not on record by the agreed timeline of 13 May 2025. The Claimant’s submissions were also not on record.
8. The Court has considered the Motion, Notice of Preliminary Objection and affidavits.
Choice of law and choice of forum
9. Clause 13 of the contract between the Claimant and Respondent made it subject to both Kenyan and Tanzanian laws.
10. The place of agreement and performance of the contract was stated in clauses 2 and 3 as Nairobi, Kenya but with travel outside of Kenya as directed by the Respondent from time to time.
11. The Court, therefore, finds that it has the choice of law and choice of forum jurisdiction over the dispute on the basis of clauses 2, 3 and 13 of the contract.
Service outside jurisdiction and striking out of the Cause
12. Under Rule 23(3) of the Employment and Labour Relations Court (Procedure) Rules, 2024, a Notice of Summons is valid in the first instance for 6 months.
13. Rule 28(3) of the Rules envisage that the Court will grant leave to serve a party who resides or is based outside the jurisdiction of the Court.
14. The Respondent contended in its Motion that the Claimant had not obtained the leave to serve it outside the jurisdiction of the Court and, therefore, the Cause should be struck out.
15. The Claimant deponed in her replying affidavit that the Respondent filed a Response and the Notice of Preliminary Objection before service of the Notice of Summons had been effected.
16. The Respondent would not have entered appearance or filed a Response if the Claimant had not served it.
17. It is apparent that the Claimant served the Respondent before securing the leave of the Court.
18. The Notice of Summons have a life of 6 months and have not lapsed by the time of the delivery of this Ruling.
19. Any prejudice to the Respondent if at all, caused to the Respondent can be ameliorated by the grant of leave and the striking out of the Cause would in the circumstances amount to a judicial overkill.
20. The Court will therefore decline the request to strike out the Cause merely because leave was not granted before service outside the Court’s jurisdiction.
21. Before concluding, the Court notes that the delivery of this Ruling was brought backwards with notice to the parties because the Court will not sit on 26 June 2025
Orders
22. Flowing from the above, the Court finds that both the Notice of Preliminary Objection filed on 19 February 2025 and Motion filed on 21 February 2025, are without merit and are dismissed with costs.