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ELRCPartially AllowedPetition No. 30 of 2019· [2019] KEELRC 2188 (KLR)

James Finlay (Kenya) Limited v Elly Okongo Inganga, Lucas Onduso Omoke, Vitalis Otieno Muga, Rebecca Okenyuri Nyakondo, Joice Mongere Ochoi, Christopher Omwambia Chuma & Getunga Masela Indinga (Petition 30 of 2019) (Employment and Labour) [2019] KEELRC 2188 (KLR)

Employment and Labour Relations Court of Kenya
22 February 2019
1,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenyan courts ruled that a Scottish court's orders cannot be carried out in Kenya unless a Kenyan court first adopts and approves them.

What this practically means

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Executive summary

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James Finlay (Kenya) Limited, a tea-growing company, petitioned the Employment and Labour Relations Court at Nairobi under Articles 162(2)(a), 165(3)(d)(ii) and 258 of the Constitution seeking declaratory orders concerning inspection orders issued by the All Scotland Sheriff Personal Injury Court on 22 November 2018 (amended 18 December 2018) in personal injury claims brought by seven of its current or former employees. The Scottish orders provided for locus inspections at the company's Kenyan estates to gather evidence for use in Scotland. The Petitioner sought declarations that the Scottish orders had to be adopted and recognised by the Kenyan court before execution under Article 159(1); that the Respondents must comply with Part VII of the High Court (Practice and Procedure) Rules under the Judicature Act when conducting any inspection; that execution without adoption would breach Kenyan sovereignty and the Foreign Judgments (Reciprocal Enforcement) Act; and that non-citizen inspectors required work permits or special passes under the Kenya Citizenship and Immigration Act. The Respondents filed responses and both sides filed submissions and authorities. After hearing the Motion on the record and by oral submissions on 21 February 2019, and noting the urgency demonstrated, Radido J delivered an order on 22 February 2019 ahead of the full judgment, allowing the motion in terms of Orders 1(a)-(f), 1A, 1B and 1C. The question of costs and the remaining prayers were reserved for the substantive judgment fixed for 28 May 2019.

Key legal issues

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01

Whether foreign court orders require adoption by a Kenyan court before execution in Kenya

Holding

Yes - the Scottish Court inspection orders must be adopted and recognised as orders of this Court before execution, and the Court granted this relief

Reasoning

The Petitioner sought declaratory orders that inspection orders issued by the All Scotland Sheriff Personal Injury Court in personal injury claims against it could not be executed directly in Kenya. The Court, acting with urgency, allowed the motion in terms of the declaratory prayers on adoption and recognition, observing the constitutional requirement under Article 159(1) and the scheme of the Foreign Judgments (Reciprocal Enforcement) Act.

p. 3
02

Whether foreign inspection teams must comply with Kenyan court practice rules when conducting locus inspections

Holding

Yes - the Respondents and their agents must abide by Part VII of the High Court (Practice and Procedure) Rules before conducting any locus inspection

Reasoning

The Petitioner argued that any locus inspection ordered by the Scottish Court is for collecting evidence for use in Scotland, and that failure to observe Part VII of the High Court (Practice and Procedure) Rules would breach Kenya's sovereignty as between the United Kingdom and Kenya. The Court granted this declaratory relief as part of the orders allowed.

p. 2

Legal principles established

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  • Orders of a foreign court must be adopted and recognised by the Kenyan court before they can be executed in Kenya
  • Executing a foreign court's orders in Kenya without prior adoption by a Kenyan court is contrary to the Foreign Judgments (Reciprocal Enforcement) Act

Court orders

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  1. 1.The motion is allowed in terms of Order 1(a)-(f) - the Scottish Court orders for inspection in respect of the first six Respondents are to be adopted and recognised as orders of this Court before being executed
  2. 2.The motion is allowed in terms of Order 1A - the Respondents must abide by Part VII of the High Court (Practice and Procedure) Rules before conducting any locus inspection
  3. 3.The motion is allowed in terms of Order 1B - failure to observe Part VII of the High Court (Practice and Procedure) Rules would breach the sovereignty of Kenya
  4. 4.The motion is allowed in terms of Order 1C - execution of the Scottish Court orders before adoption by this Court would be contrary to the Foreign Judgments (Reciprocal Enforcement) Act
Jurisdiction invoked
Articles 162(2)(a), 165(3)(d)(ii) and 258 of the Constitution

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, "James Finlay (Kenya) Limited v Elly Okongo Inganga, Lucas Onduso Omoke, Vitalis Otieno Muga, Rebecca Okenyuri Nyakondo, Joice Mongere Ochoi, Christopher Omwambia Chuma & Getunga Masela Indinga (Petition 30 of 2019)  (Employment and Labour) [2019] KEELRC 2188 (KLR)", Case Analysis (2019). Petition No. 30 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2188/eng@2019-02-22

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