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Court of AppealDismissedCivil Appeal No. 297 of 2019

Elly Okong’o Ingang’a & 6 others v James Finlay (Kenya) Limited [2021] KECA 551 (KLR)

Court of Appeal of Kenya
21 May 2021
RNR.N. NambuyeWKW. KaranjaSKS. ole Kantai
2,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that foreign court orders, like a Scottish site inspection order, cannot be carried out in Kenya without approval from Kenyan courts first.

What this practically means

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Executive summary

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Seven serving or former employees of James Finlay (Kenya) Limited sued the company in the All-Scotland Sheriff Personal Injury Court at Edinburgh over bodily injuries allegedly suffered while working on its Kericho tea estates. The Scottish court granted locus inspection orders on 22nd November 2018, permitting named experts and a legal team to enter and observe the estates and factories. The respondent then petitioned the Employment and Labour Relations Court seeking declarations that the Scottish orders had to be adopted and recognised as orders of the ELRC before execution. Radido, J. allowed the petition, holding that the interlocutory orders could not be enforced or executed in Kenya without the involvement of Kenyan authorities. The employees appealed to the Court of Appeal, arguing the orders were self-executing interlocutory discovery steps that required no domestic judicial assistance. The Court of Appeal, in a first appeal conducted under Rule 29, framed the sole issue as whether the Scottish orders could be executed in Kenya without intervention by Kenyan authorities. The Court agreed with the ELRC: sovereignty under Articles 1, 2 and 159 of the Constitution vests judicial power in Kenyan courts; the Scottish Court is not a court established by the Constitution; and although the Foreign Judgments (Reciprocal Enforcement) Act and Civil Procedure Act are silent on interlocutory orders, a broad reading requires the foreign court to seek assistance of the Kenyan Judiciary. Public policy required Kenyan judicial oversight to verify proper process, consistency with Kenyan law, and the qualifications of foreign experts. The appeal was dismissed with costs to the respondent, affirming the judgment of the ELRC.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the locus inspection orders issued by the Scottish Court on 22nd November, 2018 could be executed in Kenya without intervention by Kenyan authorities

Key legal issues

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01

Whether interlocutory locus inspection orders of a foreign court are self-executing in Kenya

Holding

They are not; their execution in Kenya requires judicial aid and intervention of Kenyan authorities, given issues of sovereignty and public policy.

Reasoning

Sovereign power belongs to the people of Kenya and is exercised through organs including the Judiciary, established under Articles 1, 2 and 159 of the Constitution. The Scottish Court is not a court established by the Kenyan Constitution. The Foreign Judgments (Reciprocal Enforcement) Act and Civil Procedure Act provide mechanisms for enforcement of foreign judgments, involving the Ministry of Foreign Affairs and the Judiciary. Although the statutes are silent on interlocutory orders, a broad reading requires the foreign court to seek assistance of the Kenyan Judiciary. Public policy considerations demand that a Kenyan court verify proper judicial process, consistency with Kenyan laws and policy, and the qualifications of foreign experts before such activities occur on Kenyan territory.

p. 3

Legal principles established

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  • Interlocutory orders of a foreign court, such as locus inspection orders, cannot be executed in Kenya without the intervention and judicial aid of Kenyan authorities; the foreign court must be moved to seek assistance of the Kenyan Judiciary.
  • The Foreign Judgments (Reciprocal Enforcement) Act and the Civil Procedure Act prescribe the mechanism for enforcing foreign judgments in Kenya, involving the Ministry of Foreign Affairs and the Judiciary.
  • A Kenyan court whose assistance is sought for enforcement of a foreign order must satisfy itself on public policy, proper judicial process, consistency with Kenyan law, and qualifications of foreign experts.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
WK
majority
SK
majority
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC No. 30 of 2019 (Constitutional Petition No. 30 of 2019)
Jurisdiction invoked
First appeal under Rule 29 of the Court of Appeal Rules from the Employment and Labour Relations Court

Relief refused

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Setting aside the ELRC judgment and dismissal of the petition filed in that Court

The Court agreed with the ELRC findings that the Scottish interlocutory orders required the involvement of Kenyan judicial and other authorities before execution; the appeal had no merit

p. 4

Costs

The appeal was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a broad reading of the statutes would dictate that the foreign court, like the Scottish Court here, be moved to seek assistance of the Kenyan Judiciary and other Kenyan authorities for enforcing orders issued by such a Court.
p. 3Enforcement of foreign interlocutory orders in Kenya
A reading of Articles 1, 2 and 159 of the Constitution of Kenya, 2010, shows that sovereign power belongs to the people of Kenya and the people exercise that power through themselves or through their representatives and that power may be delegated to State organs, like the Judiciary. The Scottish Court is not one of the courts established by the Constitution.
p. 3Sovereignty and foreign courts
Would a sovereign State, and Kenya is one, allow foreigners to walk into its territory and undertake such and related activities without supervision or assistance?
p. 3Public policy and foreign experts on Kenyan territory
We think that the Judge reached the correct conclusions. The appeal has no merit and we dismiss it with costs to the respondent.
p. 4Disposition and costs

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] KECA 551 (KLR)", Case Analysis (2021). Civil Appeal No. 297 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/551/eng@2021-05-21

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