BY SAM ALFAN.
Decisions made in foreign countries which are not compatible with Kenyan laws cannot be enforced in the country, a judge has ruled.
Principal Judge of Employment and Labour Relations court Bryan Ongaya declared 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.
“The declaration that the act of the Justice and Environment Foundation and Ronald Onyango collecting and transmitting evidence to foreign courts in a manner incompatible with Part 8 of the High Court Practise and Procedure Rules violates the right to equal protection and benefit of the law under article 27,” said the judge.
In a case filed by the Federation of Kenya Employers (FKE), the court said that no documentary evidence being sensitive personal data under the Data Protection Act can be presented to a foreign court unless the same has been collected in a manner established by the Data Protection Act and other relevant law.
The judge said actions by a non-governmental organisation- Justice and Environment Foundation and Ronald Onyango of recruiting individuals and filing suits in foreign jurisdictions in a manner incompatible with Kenyan law was illegal.
The judge added that the orders emanating from any such proceedings cannot be enforced in Kenya.
The court further declared that the Director of Occupational Health and Safety Services has the jurisdiction to deal with work injury claims arising from employment relationships within Kenya.
The judge said under section 16 of the Work Injury Benefits Act at first instance and the Scottish courts have no jurisdiction at all, unless, by law, otherwise established.
Judge Ongaya declared that any person dissatisfied with the decision of Director of Occupational Health and Services under the Act, will have redress in the Employment and Labour Relations Court of Kenya and not the Scottish courts or any other foreign jurisdiction, unless, by law otherwise established.
The judge said the NGO and Onyango or their agents should stop participating in the prosecution of the cases before the Scottish courts.
The court said the activists should first observe the mandatory constitutional and statutory provisions applicable in furthering any prosecution of a suit in a foreign court as required under Kenyan law and with respect to employment relationships and causes of action accruing within Kenya.
Justice Ongaya directed Cabinet Secretary for Labour and Social Protection and Attorney General 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 within 12 months.
This, he said should be expeditious, fair, just, and proportionate determination of the assessments for compensation and determination of disputes under the Act.
These includes instituting the relevant efficient and effective procedural safeguards, the role and guidelines for Designated Health Practitioners in assisting the Director of Occupational Safety and Health to undertake the initial and second assessments (in event of objections) and for expeditious making of awards across the Counties.
“The 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 Kenya,” ruled the judge.
FKE argued that it learnt from numerous media reports and has further confirmed at the Court’s registry as well as that of the Court of Appeal, that there are on-going legal proceedings between James Finlays Company and some of its current and former workers over employment and work injuries related issues being carried out in Scotland.
The proceedings in Scotland between James Finlays Kenya and some of its current and former employees are styled as cause GP1/22.
The FKE said its investigations established that James Finlays Kenya had been barred from engaging in, participating in and or in any way pursuing any legal remedies within the court system established in Kenya.
The Federation said the NGO has been actively recruiting persons in Kenya on its website to join and lodge proceedings in Scotland.
The FKE added that it was apprehensive that any suits filed in foreign jurisdiction automatically involve data transfers of sensitive personal information involving employees in Kenya and it is imperative that Kenya law regulating such data transfers be adhered to.
Federation of Kenya Workers being a representative body of employers in Kenya is concerned about the emerging trend of labour suits being filed outside jurisdiction to undermine the ability of Kenyan courts and administrative structures to resolve any such disputes in the manner provided under Kenyan law.
“Such a move will have drastic effect in resolving labour disputes and undermine the right of employees to access to justice and fair hearing as provided in the Constitution,” said the Federation.
Lawyer Onyango replied to the petition citing several disputes before Scottish land.
Lawyer Onyango said the current and former employees of James Finlay Kenya Ltd did not seek to stop proceedings undertaken in Kenya.
Instead, the workers sued James Finlay Kenya in the Scottish court for breach of an undertaking where they undertook not to intimidate any current or former employees who intends or has already joined the class action suit in Scotland or interfere with the Scottish proceedings in any way.
The order in Scotland was not an order to stop the proceedings in Kenya but an order asking James Finlay Kenya Ltd to stay the Kenyan proceedings pending the conclusion of the Scottish case so as not to frustrate the already ongoing Scottish proceedings.
The lawyer stated that he has never recruited anyone as Ronald Onyango.
However, the firm of Ronald K Onyango Advocates LLP which has several partners is involved in representing current and former tea workers of James Finlay Kenya Limited in an already ongoing proceedings in Scotland styled as cause GP1/22, he said.
The lead firm representing the tea workers, was issued with a letter of no objection on the class action suit from the Law Society of Kenya to publicise and advertise group proceedings against James Finlay Kenya Limited
“Instituting the suit in Scotland is not a violation of the Constitution of Kenya and does not in any way undermine the Kenya’s sovereignty or any laws as alleged,” said the lawyer
