Bosibori v Hasan & another (Petition E013 of 2025) [2026] KEELRC 2376 (KLR) (8 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **PETITION NO. E013 OF 2025** IN THE MATTER OF ARTICLES 3(1), 28, 29(a), 29(d), 29(f), 30(1), 30(2), 39, AND 41 OF THE CONSTITUTION **AND** IN THE MATTER OF THE CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS UNDER ARTICLES 28, 29(a), 29(d), 29(f), 30(1), 30(2), 39, AND 41 OF THE CONSTITUTION; **AND** IN THE MATTER OF SECTIONS 4 AND 17 OF THE EMPLOYMENT ACT, 2007; **AND** IN THE MATTER OF SECTIONS 2 AND 3 OF THE COUNTER-TRAFFICKING IN PERSONS ACT NO. 8 OF 2010; **AND** IN THE MATTER OF RULES 4 (1), 10 AND 11 THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS *&* FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES, 2013 **AND** IN THE MATTER OF THE TRAFFICKING AND ENSLAVEMENT OF THE PETITIONER **BETWEEN** MARIERA BOSIBORI.................................................................**PETITIONER** **VERSUS** ASHA HASAN........................................................................**RESPONDENT** THE NATIONAL EMPLOYMENT AUTHORITY...............................................................**INTERESTED PARTY** **JUDGMENT** 1. The Petitioner instituted this suit via a Petition dated 1st October 2025 alleging breach of the Constitution, the Counter Trafficking Act, the Employment Act, the Labour Institutions Act and the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. 2. The Petitioner's case is that, prior to the events giving rise to the Petition, she used to earn her livelihood by selling vegetables at Nyanchwa in Kisii Town. She states that while seeking better employment opportunities abroad, she was referred by a friend to the Respondent, who represented herself as operating a licensed employment agency with access to overseas employment opportunities. According to the Petitioner, in November 2024 she travelled to the Respondent's offices in Nairobi, where she was informed of an opportunity to work as a food packer in Thailand at a monthly salary of USD 2,000 for a period of two years. She avers that the Respondent required her to pay Kshs. 300,000/- as facilitation fees for securing the employment and processing a Thai work visa. She accepted the offer and paid the said amount through cash and electronic transfers, part of which was financed through a loan advanced by her SACCO. The Petitioner states that after receiving the payments, the Respondent facilitated her travel documentation and she was issued with a visitor's visa instead of the promised work visa. Upon raising the issue, the Respondent assured her that the visitor's visa would be converted into a work permit upon arrival in Thailand. She thereafter travelled to Thailand together with ten other persons. It is the Petitioner's case that upon arrival in Bangkok, she and her companions were received by Chinese nationals who transported them for several hours before unlawfully facilitating their entry into Myanmar across the Moei River at night. She contends that upon crossing into Myanmar they were received by armed guards and taken to a heavily guarded compound where they were confined. The Petitioner avers that instead of the promised food-packing job, she was compelled to participate in organised online fraud schemes. She states that the traffickers assigned her a false identity, required her to create fraudulent online accounts, provided her with mobile phones and trained her to deceive potential victims by posing as a wealthy investor interested in purchasing high-value real estate before introducing cryptocurrency investment schemes. She alleges that the information obtained from the targets was then passed to supervisors to perpetuate the fraud. The Petitioner further contends that while confined in Myanmar she was subjected to forced labour, physical assault, psychological abuse, intimidation and threats. She states that she was required to work for approximately seventeen hours daily without remuneration; that failure to meet assigned targets attracted punishments including beatings, electric shocks, denial of food, prolonged physical punishment and denial of medical treatment. She further avers that her mobile phone was confiscated, restricting communication with the outside world, and that despite working for several months she received no salary. She states that on 19th March 2025 she was rescued by the military and repatriated to Kenya. Upon her return and after obtaining legal advice, she discovered that the Respondent was not a licensed employment agency, had not obtained the requisite permits to deploy workers abroad and had never provided her with a written contract of employment before her departure. 3. The Petitioner asserts that by recruiting, transporting and facilitating her movement to Myanmar under false pretences, the Respondent subjected her to slavery, servitude, human trafficking, forced labour and forced criminality contrary to Articles 30, 39, 28, 29 and 41 of the Constitution, the provisions of the Employment Act, the Labour Institutions Act and the Counter-Trafficking in Persons Act. She further contends that the Respondent violated her constitutional rights to dignity, freedom of movement, security of the person and fair labour practices, and subjected her to cruel, inhuman and degrading treatment. 4. In support of the Petition, she attached Mpesa and bank statements evincing payment for the trip as annexture “MB-1”, affidavits evincing transmission of the amount to the Respondents as annextures “MB-2” and “MB-3”, her travel VISA as “MB-4” exit stamps from Myanmar and Thailand as “MB-5”, flight tickets and passport stamps as “MB-6” a medical report evincing physical abuse as “MB-7” and her demand letter to the Respondent as annexture “MB-8”. 5. Although duly served, the Respondent neither entered appearance nor filed a response to the Petition. The Interested Party entered appearance but similarly did not file any response. 6. The Petition was thereafter canvassed by way of written submissions. The Petitioner filed submissions dated 10th February 2026, while the Interested Party filed submissions dated 24th March 2026. Petitioner's Submissions 1. In support of the Petition the Petitioner identifies the following issues for determination: * + 1. Whether the elements of human trafficking, namely, recruitment, transportation, harbouring, and exploitation, have been established; 2. Whether the Respondent subjected her to inhuman and degrading treatment contrary to Articles 28 and 29 of the Constitution of Kenya; 3. Whether her freedom of movement under Articles 39 of the Constitution of Kenya was infringed upon by the Respondent; 4. Whether a permanent injunction should be issued against the Respondent; 5. Whether she is entitled to unpaid salaries and benefits; and 6. Whether she is entitled to general damages. 2. On the first issue she submits that all the elements of human trafficking to wit; recruitment, transportation, harbouring and exploitation have been proved. With respect to recruitment, she asserts that the Respondent's false representation of operating an employment agency and promising her employment as food packer in Thailand when she knew none existed establishes deceptive recruitment contrary to section 3(d) of the Counter Trafficking in Persons Act. Furthermore, she asserts that her action of demanding Kshs 300,000/- facilitation fees and lying to her that her VISA would be converted upon her arrival in Thailand was equally part of the deception. In support of her position, she relies on **Nyakong'o *v* Gratify Solutions International Limited *&* 3 others [2025] KEELRC 3258 (KLR)**, where the Court held that recruitment and transportation of the Petitioner albeit by his consent, through deception constituted trafficking. 3. As for the aspect of transportation and harbouring, she submits that the Respondent facilitated her travel from Kenya to Thailand whereupon she was transported to Myanmar. She highlights the fact that the Respondent called her on 2nd December 2025 informing her that her flight was scheduled for 4th December 2025, setting in motion in motion the chain of events that resulted in her being delivered to the heavily guarded compound. She asserts that these facts demonstrate the Respondent's participation in that stage of the trafficking process. With respect to exploitation, she draws attention to her compulsion to participate in organised online fraud under coercive conditions, deprivation of her identity documents and communication devices, subjection to forced labour without remuneration and punishment for failure to meet imposed targets. She maintains that this conduct constituted exploitation, forced labour and servitude as defined under Section 2 of the Counter Trafficking in Persons Act and Section 4 of the Employment Act. She further highlights the fact that the Respondent operated as an unregistered employment agency, contrary to section 55 of the Labour Institutions Act, and failed to provide the mandatory written foreign employment contract required under section 85 of the Employment Act and Rule 36 of the Employment (General) Rules. 4. On the question as to whether she is entitled to compensation for human trafficking, she submits that the Respondent is liable to compensate her for participating in the recruitment, transportation, harbouring and exploitation stages of her trafficking. She relies on sections 5(c), 13 and 16 of the Counter Trafficking in Persons Act which contemplate civil liability and compensation for trafficking victims. She also cites the case of **Asif *v* Republic [2017] eKLR** and **Benard Onyandi *v* Republic [2018] eKLR** for the proposition that participation in any one stage of the trafficking process is sufficient to establish liability. She further cites the case of **Geoffrey Mutemi Manzi *v* Republic [2021] eKLR**, where a fine of Kshs 10,000,000/- was imposed upon the Appellant for facilitating trafficking, as well as **Nyakong'o *v* Gratify Solutions International Limited *&* 3 others [2025] KEELRC 3258 (KLR)** and **Kifano *v* Loivin Limited *&* 4 others [2024] KEELRC 13536 (KLR)**, where the Court awarded Kshs. 5,000,000/- and Kshs. 4,000,000/- respectively to victims of trafficking, forced labour and servitude. 5. On the second issue of whether he was subjected to inhuman and degrading treatment contrary to Articles 28 and 29 of the Constitution, she highlights the forced labour, physical abuse, denial of food, excessive working hours without remuneration, punishment, torture and denial of medical care as evidence of violation of her constitutional right to dignity. She relies on the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples' Rights, all of which recognise the inherent dignity of every human being. Reliance is further placed on the case of **Jonathan Spangler *v* Centre for African Family Studies (CAFS) [2017] eKLR**, where failure to remunerate an employee was held to amount to degrading treatment, **Ahmed Issack Hassan *v* Auditor General [2015] eKLR**, where the Court described dignity as the foundation of all constitutional rights, and **M W K *&* another *v* Attorney General *&* 3 others [2017] eKLR**, in which damages were awarded for violation of the right to human dignity. The Petitioner therefore urges the Court to award damages for infringement of Articles 28 and 29 of the Constitution. 6. On the issue regarding curtailment of her freedom of movement, the Petitioner submits that her passport was confiscated in Myanmar and she was prevented from leaving unless she paid USD 4,500 for her release. She asserts that she only regained her freedom following a military rescue and subsequent repatriation to Kenya. On the prayer for permanent injunction sought against the Respondent, the Petitioner submits that it is unopposed hence it should be allowed. 7. On whether she is entitled to unpaid salaries and benefits, the Petitioner submits that the Respondent was under legal obligation to pay her USD 2,000 monthly salary which was not paid for the four months she was in forced labour. She therefore claims unpaid salary amounting to USD 8,000 together with interest. She also seeks special damages of Kshs. 15,095/- for her confiscated mobile phone and Kshs. 21,011/- being interest on the loan obtained to finance the recruitment fees. Lastly on exemplary damages, the Petitioner submits that they should be awarded to punish and deter human trafficking. She relies on the case of **Godfrey Julius Ndumba Mbogori *&* another *v* Nairobi City County [2018] eKLR**, where the Court held that exemplary damages are appropriate where a defendant's conduct is calculated to generate profit. She further refers to the **2025 United States Department of State Trafficking in Persons Report**, which classified Kenya as a Tier 2 country due to its failure to meet the minimum standards for elimination of human traficking, and asserts that an aggravated award is necessary to discourage trafficking and deprive traffickers of the profits derived from exploitation. Consequently, he urges the court to allow the Petition. Interested Party's Submissions 1. The Interested Party submits that it is not liable for the acts complained of by the Petitioner. It asserts that since the Respondent was never registered as an employment agency, no legal or statutory relationship existed between it and the Respondent. Consequently, it could not exercise its regulatory and enforcement powers under sections 34, 35, 36 and 38 of the Labour Institutions Act, including powers of inspection and entry into the Respondent's premises. In support of its position, it draws attention to section 6 of the National Employment Authority Act, 2016 pursuant to which it is mandated to regulate employment management and promotion in Kenya. Additionally, it highlights its responsibility for registration and regulation of private employment agencies under sections 55 and 60 of the Labour Institutions Act. It therefore maintains that it bears no responsibility for the Respondent's actions or omissions. Disposition 1. The Petitioner herein alleges she was subjected to degrading and inhuman treatment amounting to slavery and servitude in the hands of the Respondent. The right to dignity is protected in the Constitution and international instruments such as the Universal Declaration of Human Rights. Articles 3, 4, 5 and 8 of the Universal Declaration of Human Rights provide as follows: *Article 3 - Everyone has the right to life, liberty and the security of person.* *Article 4 - No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.* *Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.* *Article 8 - Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.* 1. The International Covenant on Civil and Political Rights (ICCPR) provides in Article 7 and 8 as follows: *Article 7* *No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.* *Article 8* *1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.* *2. No one shall be held in servitude.* *3. (a) No one shall be required to perform forced or compulsory labour;* *(b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;* *(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:* *(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;* *(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;* *(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;* *(iv) Any work or service which forms part of normal civil obligations.* 1. The Petitioner was promised a lucrative job overseas and she was compelled to make arrangements for her facilitation to snag this job that offered a handsome sum of USD 2,000 a month for the former fruit and vegetable seller from Nyanchwa. In her effort to move to greener pastures, she sadly did not confirm from the Interested Party if the Respondent was registered with the Interested Party to do what she was purportedly doing. It is on that basis that the Court agrees with the Interested Party that because the Petitioner was dealing with an unregistered entity, it had no control nor can it be held liable for the actions of the Respondent. It asserts that since the Respondent was never registered as an employment agency, no legal or statutory relationship existed between it and the Respondent. Consequently, it could not exercise its regulatory and enforcement powers under sections 34, 35, 36 and 38 of the Labour Institutions Act, including powers of inspection and entry into the Respondent's premises. Additionally, its mandate under section 6 of the National Employment Authority Act, 2016 could not be exercised over this illegal entity. The Court agrees with the Interested Party in so far as the foregoing. The Court will therefore not issue any sanctions to the Interested Party but some advice in passing. 2. In the recent past there has been an increase in reports indicating that Kenyans who are seeking greener pastures are suffering abroad. It is therefore critical that the Interested Party plays an increasing role in monitoring and enforcing the law against rogue agents like the Respondent. It is important that the role of regulating employment management and promotion be constantly reviewed to see where the National Employment Authority enjoined herein as the Interested Party can intervene. It is important to note the modes of recruitment are constantly evolving necessitating the inclusion of fresh roles such as online monitoring, surveillance at points of exit and the like to ensure there is a collation of the information gathered on the illegal recruiters. Of importance is the role the National Employment Authority has, to ensure the Respondent does not operate any employment agency in Kenya. 3. The Petitioner was seeking better employment opportunities abroad, when she was referred by a friend to the Respondent. The Respondent represented herself as operating a licensed employment agency with access to overseas employment opportunities. According to the Petitioner, in November 2024 she travelled to the Respondent's offices in Nairobi, where she was informed of an opportunity to work as a food packer in Thailand at a monthly salary of USD 2,000 for a period of two years. It was evidenced that the Respondent obtained a huge sum as facilitation fees for securing the Petitioner employment and processing a Thai work visa. On accepting the offer, the Petitioner paid the facilitation fees through cash and electronic transfers, a part of which was financed through a loan advanced by her SACCO. The Respondent thereafter facilitated processing of the Petitioner's travel documentation. The Petitioner was issued with a visitor's visa instead of the promised work visa and when she raised the issue, the Respondent assured her that the visitor's visa would be converted into a work permit upon arrival in Thailand. 4. The Petitioner thereafter travelled to Thailand together with ten other persons. Upon her arrival in Bangkok, the Petitioner and her companions were received by Chinese nationals who transported them for several hours before unlawfully facilitating their entry into Myanmar across the Moei River at night. Upon crossing Moei River into Myanmar, the trafficked persons were received by armed guards and taken to a heavily guarded compound where they were confined. This is when the horrors of her enslavement and servitude began. Instead of the promised food-packing job, the Petitioner was forced to participate in organised online fraud schemes where she was assigned a false identity by the traffickers. She was required to create fraudulent online accounts, and using the mobile phones provided to her, was trained to deceive potential victims by posing as a wealthy investor interested in purchasing high-value real estate before introducing cryptocurrency investment schemes. The Petitioner asserted that the information obtained from the targets was then passed to supervisors to perpetuate the fraud. The Petitioner, while confined in Myanmar was evidently subjected to forced labour, physical assault, psychological abuse, intimidation and threats. The medical report is proof of this. One can only imagine the horror of violence meted out to one abroad. This must have been one of the most traumatic of experiences and given the fact that her phone had been confiscated and she could not reach out to authorities either here or in Thailand, she was at the mercy of her abductors. The Petitioner was required to work for approximately seventeen hours daily without remuneration. Failure to meet assigned targets attracted physical punishment which included beatings, electric shocks, denial of food and prolonged denial of medical treatment. Despite working for several months, the Petitioner received no salary. 5. Thankfully on 19th March 2025 the Petitioner was rescued by the Thai military and was repatriated to Kenya. Upon her return and after obtaining legal advice, she ascertained that the Respondent was not a licensed employment agency and had therefore not obtained the requisite permits to deploy workers abroad. It is proved that the Petitioner was never provided with a written contract of employment before her departure contrary to the provisions of section 85 of the Employment Act and Rule 36 of the Employment (General) Rules which require issuance of a mandatory written foreign employment contract. 6. The Respondent was not only cruel and callous in the manner she treated the Petitioner and subjected the Petitioner to slavery, servitude, human trafficking, forced labour and forced criminality contrary to Articles 28, 29, 30, 39 and 41 of the Constitution, the provisions of the Employment Act, the Labour Institutions Act and the Counter-Trafficking in Persons Act. It is my finding that participation in any one stage of the trafficking process is sufficient to establish liability. In this case, the Petitioner asserts the Respondent called her on 2nd December 2025 informing her that her flight was scheduled for 4th December 2025, setting in motion in motion the chain of events that resulted in the Petitioner being delivered to the heavily guarded compound where she suffered incarceration and forced labour amounting to slavery. 7. The Respondent's false representation of operating an employment agency and promising the Petitioner employment as a food packer in Thailand when the Respondent knew full well that no such job existed establishes deceptive recruitment contrary to section 3(d) of the Counter Trafficking in Persons Act. In furtherance of this, there was the act of demanding Kshs. 300,000/- as facilitation fees and the blatant lie to the Petitioner that her tourist visa would be converted into a work visa upon her arrival in Thailand. This was equally part of the deception and was calculated to result in only one thing – the enslavement of the Petitioner. 8. The fact the Respondent participated in orchestrating her delivery to Myanmar, there is ample proof the Respondent participated in the Petitioner's trafficking. The participation of the Respondent in the trafficking process satisfied the liability threshold in sections 5(c), 13 and 16 of the Counter Trafficking in Persons Act which contemplate civil liability and compensation for trafficking victims. It is my finding that the Respondent is liable for the trafficking of the Petitioner. See **Asif *v* Republic [2017] eKLR** and **Benard Onyandi *v* Republic [2018] eKLR** for the proposition that participation in any one stage of the trafficking process is sufficient to establish liability. 9. The cases of **Geoffrey Mutemi Manzi *v* Republic [2021] eKLR**, where a fine of Kshs 10,000,000/- was imposed upon the Appellant for facilitating trafficking, as well as **Nyakong'o *v* Gratify Solutions International Limited *&* 3 others [2025] KEELRC 3258 (KLR)** and **Kifano *v* Loivin Limited *&* 4 others [2024] KEELRC 13536 (KLR)**, where the Court awarded Kshs. 5,000,000/- and Kshs. 4,000,000/- respectively to victims of trafficking, forced labour and servitude, were cited. The Petitioner herein had to be rescued by the security agencies in Myanmar. Had they not raided the place she was incarcerated she may have been in custody and enslaved for a longer period. She could easily have been trafficked out of Myanmar for she was no longer a free person but a prisoner at the mercy of her captors who forced her to partake of criminal activities by luring unsuspecting members of the public to invest in curated crypto currencies with the sole aim of defrauding them. This was far from the factory work she was prepared for. 10. In this case, I find that a sum of Kshs. 5,000,000/- would suffice for the award in respect of the Petitioner. In addition, the Petitioner proved she was not paid any salary. She sought a sum of USD 8,000 together with interest which I award. The Petitioner will also receive special damages of Kshs. 15,095/- for the confiscated mobile phone and Kshs. 21,011/- being interest on the loan obtained to finance the recruitment fees. The Petitioner will also have the sum of Kshs. 300,000/- being the sum paid for recruitment. She also will have Kshs. 1,000,000/- as exemplary damages for the items under that head. The National Employment Authority should check its database and ensure the Respondent is not permitted to operate a recruitment agency within Kenya for having participated in trafficking of persons. The Respondent will be required to also pay costs of the case and interest at court rates on all the sums awarded from the date of judgment till payment in full. 11. In the final analysis, a judgment is entered for the Petitioner against the Respondent for: 1. Kshs. 5,000,000/- as compensation for the trafficking to Myanmar. 2. USD 8,000 as unpaid salary 3. special damages of Kshs. 15,095/- for the confiscated mobile phone. 4. Kshs. 21,011/- being interest on the loan obtained to finance the recruitment fees. 5. Kshs. 300,000/- refund of recruitment fees 6. Kshs. 1,000,000/- as exemplary damages 7. Interest on the sums above at Court rates from the date of judgment till payment in full. 8. Costs of the suit. It is so ordered. **Dated and delivered at Kisumu this 8th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**