1. Kawino v Population Services International (PSI) [2025] KEELRC 1436 (KLR)

Foreign employers may sometimes include Clauses on applicable law or jurisdiction in employment contracts. These clauses specify which country’s laws govern the agreement. Kenyan courts scrutinize such clauses closely when the employee’s usual workplace is in Kenya. Although parties have contractual freedom, the court can interfere with such provisions to uphold the rights of employees. This was evident in the case of Kawino v Population Services International (PSI) [2025] KEELRC 1436 (KLR) which involved a Kenyan employed by an International Organisation. 

In this case, the Respondent, Population Services International (PSI) Advertised a Job vacancy indicating that the prospective candidate was to ”serve as a liaison with PSI procurement department in Washington DC and in Nairobi Kenya to coordinate the import of health and other non-ethical commodities for PSI operations. The Claimant (Kawino) was hired by the Respondent upon his success in the job Interviews. 

The terms of his contract had the following controversial terms that the court had to assess:

  1. The Employment Contract could be terminated at will except as was restricted by law. 
  2. The Applicable law in relation to the employment dispute would be the laws of the District of Columbia in the United States of America.
  3. The Claimant would not be entitled to compensation upon termination of the Employment Contract.
  1. The process of Termination

The employee received an email on the 9th of August 2016 informing him that he had violated the security protocol by carrying more than one bag during a safety evacuation process. His contract was also terminated on the same day the alleged breach was brought to his attention. 

  1. The conflict between the laws of the District of Columbia and the Kenyan labour laws:

The Kenyan labour laws require due process to be followed before termination of an employment contract. The court cited the case of Mary Mutanu Mwendwa v Ayuda [2013] eKLR where the Court held that the Employment Act has made it mandatory by virtue of Section 41, for an employer to notify and hear any representations an employee may wish to make whenever termination is contemplated by the employer, and is entitled to have a representative present. In Contrast, the Respondents relied on laws of the District of Columbia (USA) which permitted the termination of employment ‘at will’.

The Court adopted the Objective test that was used in the case of Dorcas Kemunto Wainaina v IPAS [2018) eKLR to determine which law was applicable. Under the Objective test, the court assesses which law or jurisdiction was deeply connected with the contract. In order to establish this connection the court had to determine Claimant’s usual place of work and where the alleged breaches occurred. 

The court made a finding that he Claimant neither travelled nor worked in Washington DC and that the alleged breaches and the subsequent termination of the Claimant occurred in Nairobi, Kenya. The Court found that the Kenyan law was applicable, and, consequently, the Respondent was found to have unfairly terminated the Claimant’s Contract. The Claimant was therefore entitled to the compensation as prayed for.

  1. Conclusion

This decision provides a guide on the validity and effectiveness of Applicable law clauses in employment Contracts. Before including such clauses, drafters are required to consider the objective test as applied in the case of Kawino v Population Services International (PSI) [2025] KEELRC 1436 (KLR). An employer who includes such a provision in the contract and fails to adhere to Kenyan labour laws would still be liable if the employee’s usual place of work is in Kenya. The courts view such clauses as attempts to block employees from court remedies. 

At Kioi & Company Advocates, we specialise in employment law, representing both employers and aggrieved employees. Our expertise encompasses employment disputes, drafting robust employment contracts, and conducting thorough reviews to ensure full compliance with Kenyan labour legislation.