Fix gaps in law on orders by foreign judges – Kenya’s Supreme Court 

By Carmel Rickard

A judgment by Kenya’s top court has found significant gaps in the law dealing with orders of foreign courts. These were discovered in the course of a judgment related to litigation lodged by seven local tea-pickers employed by Scottish tea company James Finlay (Kenya). While addressing core issues of the judgment, Five judges of the Supreme Court ordered government agencies responsible for preparing and making new legislation to look into the legal framework in question with ‘utmost urgency’ to have the law conform to the Constitution.

The suit involves seven current or former employees of Finlay, each of whom filed an action in the Scottish courts – for work-related injuries. They said they had suffered work-related injuries while employed in the company’s tea estates and factories, which amounted to a negligence and a failure to provide a safe working environment.

The seven asked the Scottish court to issue inspection orders for a site visit to the tea estates and factories in Kenya. Among other purposes, the inspection is intended to allow inspectors to observe tea pickers picking both manually and with equipment, measure the tea plants and areas where the pickers had to work and the distances the workers needed to walk to weigh tea. The inspection will also allow a videoing of the work of the pickers, investigate the personal protective equipment available to them, weigh the tea baskets when they are full and observe the medical facilities available to the workers.

‘Judicial aid’

At the end of 2018, the Scottish court granted the orders for an on-site inspection in Kenya, in relation to each of the litigants. In response, however, the estate owners have tried to stop the inspections from taking place, by challenging the process to be adopted in such a case.

First, in response to legal action by the employer, Kenya’s employment and labour relations court found that in a matter involving an interim aspect of litigation, ‘judicial aid’ was needed in Kenya before inspections ordered by a Scottish court could be carried out: thus, none of the seven inspection orders could be executed until the orders were ‘adopted and recognised’ as orders of the Kenyan court.

Dissatisfied with the outcome, the tea pickers took the matter to the appeal court where the judges agreed with the labour court. Finally, the dispute over the procedure required before the inspections, ordered by the Scottish court, could be carried out in Kenya, arrived at the Supreme Court.

‘Eroding fair trial rights’

The tea pickers were presumably concerned that obtaining ‘judicial aid’ from the Kenyan courts before the inspection, authorised by the Scottish courts, could be carried out, would delay and prolong the litigation. They argued that there was nothing about the inspections that could be said to affect Kenya’s national security. They added that thousands of foreigners who came to Kenya lawfully, went on to engage in private business, with private persons, on private property, and none of this was seen as ‘threats to national security’ that required judicial assistance.

They argued that the Labour (High Court) and Appeal courts had created an impediment to the inspection ordered by the Scottish court, thereby eroding their fair trial rights, all without legal justification.

The tea company, however, said that any order by the Scottish court was null and void ‘unless first sanitized by Kenyan judicial authorities before being executed.’

Sovereign state

In its judgment, the Supreme Court found that democratic self-rule would be threatened if foreign courts, ‘to whom the [Kenyan] people have not donated judicial authority’, could directly exercise influence in Kenya. Instead, foreign court decisions had to be approved by the courts in Kenya.

The judges held: ‘We have no difficulty finding that decisions by foreign courts and tribunals are not automatically recognised or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced. Consequently, it is also our finding that Kenya, as a sovereign state, cannot automatically allow citizens, individuals or officers of a foreign state to carry out upon its own territory, the decisions of a foreign court, without authorisation from the Kenyan government, upon recognition of the foreign court or tribunal.’

This meant that the litigants’ experts and examiners could not enter Kenya to carry out the inspection orders without authorisation, according to the judgment.

This in turn created complications, however, since the correct route to be adopted in such a case ‘was not immediately apparent’, and neither the high court nor the appeal court could precisely identify the laws that applied to the situation.

‘Ambiguous and obstruse statutes’

The Supreme Court judges were critical of the situation that had been allowed to develop. They said that although ignorance of the law was not a defence, where the law wasn’t easily discernible or the proper course of action wasn’t easily perceptible to the litigants and the courts, then, ‘that speaks to the clarity of the law or lack thereof’, rather than being the fault of the litigant.

‘For this reason, we cannot fault the [tea-pickers] for stumbling through the complexity of ambiguous and obstruse statutes and failing to find a solution.’

The steps that had to be taken were still not clear, so the Supreme Court ‘for procedural propriety’ directed the appellants to ensure that the Scottish court channelled a letter of request to the registrar of the high court in Kenya for ‘assistance’.

Signal of the utmost urgency

Having dismissed the appeal and explained the way forward, the court then turned to how the gaps in the law in Kenya ought to be dealt with. The judges said they had taken ‘keen note’ that the laws dealing with this issue needed updating to be brought in line with the constitution and other laws. Using an exclamation mark, almost never seen in a court judgment, they commented that the relevant high court rules were ‘stuck in [a] time warp!’ and expressed their surprise that the relevant laws hadn’t been updated.

In conclusion, the court ordered each party to bear its own costs in this appeal, and directed that the judgment be placed before the National Assembly, the Senate, the attorney-general and the Kenya Law Reform Commission, with ‘a signal of the utmost urgency’, for the development of the law ‘on judicial assistance in obtaining evidence for civil proceedings in foreign courts and tribunals’.

While the judgment is important for remedying a significant gap in the law and ordering that it be dealt with, for the parties to the original dispute, the road ahead has now become even longer. (