Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The Federation of Kenya Employers challenged the legality of Scottish court orders that barred James Finlay (Kenya) Limited from pursuing legal action in Kenya. The court found that the Scottish court's orders undermined Kenya's judicial authority and violated the Data Protection Act by transferring sensitive personal data without proper authorization. The court ruled in favor of the petitioner and declared the Scottish court's orders unenforceable in Kenya.

Facts

The Federation of Kenya Employers (the petitioner) brought a petition before the Employment and Labour Relations Court in Nairobi, Kenya, concerning legal proceedings initiated in Scotland involving James Finlay (Kenya) Limited and its workers. The petitioner argued that the Scottish court's orders, which barred James Finlay (Kenya) Limited from pursuing legal remedies in Kenya, undermined the country’s judicial authority and violated constitutional rights to access justice and a fair hearing.

The petitioner also raised concerns that the transfer of sensitive personal data of Kenyan employees to Scotland for the proceedings had occurred without the necessary approval from the Data Commissioner, as mandated by the Data Protection Act. This raised concerns about potential violations of data protection laws and the employees’ right to equal protection under the law.

The fifth respondent, an advocate representing the employees in the Scottish case, responded by arguing that:

• The Scottish court's orders were not intended to restrict the Kenyan court's jurisdiction but to facilitate a smooth resolution of the dispute and avoid conflicting decisions.
• He had not personally recruited anyone, but his firm, Ronald K Onyango Advocates LLP, was involved in representing the employees in the Scottish class action lawsuit, and this process was not illegal.
• The Law Society of Kenya had issued a letter of no objection to publicize the class action suit against James Finlay (Kenya) Limited.
• Filing the lawsuit in Scotland did not violate the Kenyan Constitution or undermine the country’s sovereignty.
• Previous cases existed where Kenyan employees had sued their employers in foreign jurisdictions where the parent company was domiciled.

The court declared that:

• The Scottish court’s orders indeed undermined Kenya’s judicial authority. The court found that the Scottish court's orders violated Articles 48 and 50 of the Kenyan Constitution, which guarantee the right to access justice and a fair hearing. The court held that the temporary nature of the Scottish court's orders did not negate their permanent effect, as compliance would exhaust all available legal avenues in Kenya.
• The transfer of sensitive personal data to Scotland without the Data Commissioner’s approval was a violation of the Data Protection Act. While acknowledging the employees’ consent to the data transfer, the court emphasized the legal obligation to inform and obtain approval from the Data Commissioner.