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ELRCDismissedConsolidated Petitions Nos. 7 of 2019 and 8 of 2019· [2021] KEELRC 2309 (KLR)

Elly Okong’o Ingang’a & 6 others v James Finlay (Kenya) Limited [2021] KEELRC 2309 (KLR)

Employment and Labour Relations Court
23 September 2021
HWHellen Wasilwa
4,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed workers' information requests against a tea company because the same issues were already decided in an earlier case.

What this practically means

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Executive summary

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Two consolidated petitions filed on 18th December 2019 sought declarations that the respondent tea company's refusal to supply information requested by letters of 4th July 2019 and 4th November 2019 violated the petitioners' right of access to information under Article 35(1)(b) of the Constitution and section 4(1)(b) of the Access to Information Act, together with mandamus compelling release of information on tea workers' working conditions and the petitioners' medical records, and KShs. 500,000 in costs. The information was intended to support personal injury claims by the petitioners against the respondent pending before the All-Scotland Sheriff Personal Injury Court in Edinburgh. The respondent opposed, arguing that the same information was the subject of Nairobi ELRC Petition No. 30 of 2019, in which Radido J held that the Scottish Court's locus inspection orders could not be executed without adoption by Kenyan courts in accordance with the Foreign Judgments (Reciprocal Enforcement) Act and the High Court (Practice and Procedure) Rules, and that an appeal (Civil Appeal No. 297 of 2019) was pending before the Court of Appeal. The court held that the matters had already been determined in ELRC Petition No. 30 of 2019 by a court of competent and concurrent jurisdiction and were therefore res judicata. Adjudicating further would amount to an abuse of court process and misuse of judicial power. The petitions were found unmerited and dismissed, with no orders of costs. The petitioners were advised to await their pending appeal.

Key legal issues

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01

Res judicata in respect of information sought under Article 35(1)(b)

Holding

The petitions were dismissed because the information sought was already the subject of the judgment in ELRC Petition No. 30 of 2019, which barred the petitioners from obtaining the information without adoption of the Scottish Court orders by Kenyan courts

Reasoning

The court noted the petitioners sought similar information via the locus inspection orders from the Scottish Court. The prior judgment in Petition 30 of 2019 directed that the Scottish orders be adopted under the High Court (Practice & Procedure) Rules and the Foreign Judgments (Reciprocal Enforcement) Act. An appeal was pending, so the petitioners' remedy was to await the appeal outcome rather than re-litigate.

p. 6
02

Abuse of court process

Holding

Adjudicating the petitions would amount to an abuse of process and misuse of judicial power

Reasoning

The respondent had argued that the petitions were an attempt to circumvent the requirement for enforcing foreign orders through due process, using the court as a surrogate for the Scottish Court. The court agreed that continuing the petitions would misuse judicial power given the prior determination and pending appeal.

p. 6

Legal principles established

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  • A court of competent and concurrent jurisdiction's prior determination on substantially the same information renders a later petition res judicata
  • Continuing to adjudicate on matters already determined is an abuse of process and misuse of judicial power

Court orders

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  1. 1.Both petitions dismissed as res judicata and not merited
  2. 2.No orders of costs

Authorities

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Legislation

  • Constitution of KenyaArticle 35(1)(b)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticles 28, 41(1), 41(2)(b), 43(1)(a), 46, 48, 50(1), 24
  • Access to Information Actsections 4(1)(b), 6, 6(2)(j), 14
  • Food, Drugs and Chemical Substances Act (Food Hygiene) RegulationsRegulation 15(1)(b)
  • Occupational Safety and Health Actsection 2
  • Work Injury Benefits Actsection 16
  • Employment Actsection 87
  • Foreign Judgments (Reciprocal Enforcement) ActCap 43
  • High Court (Practice and Procedure) RulesPart VII
  • Commission on Administrative Justice Actsection 3

Cases cited (5)

  • East Africa Development Bank –v- Dari Limited and 5 others
    [2020] eKLR
  • Mutiri and Company Advocates –versus- LSG Lufthansa Services Europa Africa GMBH & Another
    [2015] eKLR
  • Kenya Commercial Bank Limited –Vs- Muiri Coffee Estate Limited and Another
    [2016] eKLR
  • Penn-Texas Corporation –versus- Anstal and Others
    [1963] ALL ER 258
  • Radio Corporation of America –versus- Rauland Corporation and Another
    [1956] ALL ER 549
Jurisdiction invoked
Article 35(1)(b) of the Constitution of Kenya and section 4(1)(b) of the Access to Information Act

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, "Elly Okong’o Ingang’a & 6 others v James Finlay (Kenya) Limited [2021] KEELRC 2309 (KLR)", Case Analysis (2021). Consolidated Petitions Nos. 7 of 2019 and 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2309/eng@2021-09-23

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