Federation of Kenya Employers v Cabinet Secretary, Ministry of Foreign Affairs and International Relations & 4 others; Law Society of Kenya (Interested Party) (Petition E085 of 2023) [2023] KEELRC 3067 (KLR)
The bottom line
#Kenya's Employment Court ruled that Scottish orders cannot stop Kenyan workers or courts, and employee data cannot be sent abroad without the Data Commissioner.
What this practically means
#Executive summary
#Key legal issues
#Standing of the petitioner
The petitioner had standing under article 258(1) and 258(2)(b), (c) or (d) as a representative member-based organisation of employers, though it could not sue on behalf of the Judiciary or the Law Society of Kenya
The 5th respondent argued the petitioner was a proxy for James Finlay Kenya Limited and had no instructions from the Judiciary or LSK. The court found the petitioner relied on its undisputed representative mandate and article 258 entitlement. It did not claim to sue for the Judiciary or LSK. Its special mandate was unrebutted, giving it standing as of right to protect the Constitution and its members' interests.
Sufficiency of pleadings of constitutional violations
The petition passed the Anarita Karimi Njeru threshold as it set out the complaints and the constitutional provisions allegedly violated
The court examined the pleadings against the Anarita Karimi Njeru standard requiring precision in identifying the complaint, the provisions infringed and the manner of infringement. The allegations against the 4th and 5th respondents - undermining due process, recruiting for foreign litigation, and transferring data contrary to Kenyan law, violating articles 27, 48 and 50 - satisfied the test. Whether the violations were established was a separate question.
Whether the Scottish ad interim orders violated Kenya's judicial sovereignty and fundamental rights
The orders violated the sovereignty of the Kenyan Judiciary and curtailed fundamental rights and freedoms
The Scottish ad interim orders barred James Finlay Kenya Limited from prosecuting ELRC Petition E133 of 2022 and required it to seek recall of Kenyan orders. The court found they in effect suspended the Kenyan court's authority and access to justice contrary to articles 48, 50 and 25, were final in effect, and could only be implemented in Kenya through prescribed recognition and enforcement procedures per the Supreme Court in Elly Okong'o Ingang'a.
Breach of section 48 of the Data Protection Act
The 4th and 5th respondents were bound by section 48 and transferring employee data abroad required the Data Commissioner's involvement notwithstanding data subjects' consent
The respondents did not deny transferring personal data of current and former employees to Scotland. Consent of data subjects did not displace the statutory requirement that proof of appropriate safeguards be given to the Data Commissioner. The court linked this to the Supreme Court's directive that foreign evidence-gathering must proceed through a letter of request to the Registrar of the High Court, with the Data Commissioner to be involved in data transfers.
Alleged breach of rule 6 of the Advocates Practice Rules
The Court declined to determine the alleged professional misconduct for want of exhaustion of the statutory disciplinary process under the Advocates Act
Relying on justiciability and exhaustion doctrine, the court held that the Advocates Act provides an elaborate process - the Advocates Complaints Commission (Part X) and the Disciplinary Tribunal (Part XI) - for professional misconduct complaints. That statutory design with adequate safeguards bars constitutional adjudication of the issue unless the process is shown to be unavailable or incapable of being invoked.
Legal principles established
#- Decisions of foreign courts are not automatically recognized or enforceable in Kenya; they must be examined by Kenyan courts before recognition and enforcement
- The right to a fair hearing under article 50(1) applies to civil suits as well as constitutional petitions and is non-derogable
- Availability of an elaborate statutory process bars constitutional determination of alleged professional misconduct by an advocate
- An association acting in the interest of its members has standing under article 258 to institute constitutional proceedings
Court orders
#- 1.The Cabinet Secretary for Labour and Social Protection and the 2nd respondent to take appropriate participatory measures for legislative reforms towards removing the significant challenges and gaps in the implementation of the no-fault design of the Work Injury Benefits Act, and to file a progress report in Court within 12 months
- 2.Declaration that all persons have a right of access to justice and an absolute right to a fair hearing and no foreign court or order can be used to impede or stop the enjoyment of that right within the Republic of Kenya
- 3.Declaration that Kenyan Courts have jurisdiction to try any matter arising from causes of action that arise in Kenya in which parties are domiciled and operate in Kenya
- 4.Declaration that judgments and orders issued by courts in foreign countries are not enforceable in Kenya unless their enforcement is sought in the manner prescribed by law
- 5.Declaration that no documentary evidence being sensitive personal data under the Data Protection Act can be presented from within Kenya to a foreign court unless collected in a manner established by the Data Protection Act and other relevant law
- 6.Declaration that judgments and orders of foreign courts incompatible with the Kenyan Constitution cannot be enforced or given effect to within the Republic of Kenya
- 7.Declaration that the act of the 4th and 5th respondents recruiting individuals and filing suits in foreign jurisdictions in a manner incompatible with Kenyan law is illegal, null and void
- 8.Declaration that the Director of Occupational Health and Safety Services has jurisdiction under section 16 of WIBA to deal with work injury claims at first instance, and the Scottish courts have no jurisdiction unless by law otherwise established
- 9.Declaration that any person dissatisfied with the decision of the Director of Occupational Health and Safety Services will have redress in the Employment and Labour Relations Court and not the Scottish courts or any other foreign jurisdiction
- 10.Declaration that any transfer of data from Kenya for use in a foreign jurisdiction can only be undertaken within the framework of section 48 of the Data Protection Act
- 11.Declaration that the act of the 4th and 5th respondents collecting and transmitting data outside Kenya is incompatible with section 48 of the Data Protection Act and violates article 27
- 12.Declaration that the 4th and 5th respondents or their agents should forthwith stop aiding, abetting or participating in the prosecution of the Scottish proceedings styled GP/22 or similar proceedings without observing mandatory constitutional and statutory provisions
- 13.Declaration that the act of the 4th and 5th respondents collecting and transmitting evidence to foreign courts in a manner incompatible with Part 8 of the High Court Practice and Procedure Rules violates article 27
- 14.Each party to bear own costs of the suit
- Jurisdiction invoked
- Articles 22, 258(1) and 165 of the Constitution of Kenya 2010 (petition claiming contravention of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Federation of Kenya Employers v Cabinet Secretary, Ministry of Foreign Affairs and International Relations & 4 others; Law Society of Kenya (Interested Party) (Petition E085 of 2023) [2023] KEELRC 3067 (KLR)", Case Analysis (2023). Petition dated May 3, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3067/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.