Mokua v Samburu Project (Cause E051 of 2025) [2026] KEELRC 2201 (KLR) (30 July 2026) (Ruling)

Mokua v Samburu Project (Cause E051 of 2025) [2026] KEELRC 2201 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2201 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E051 of 2025 J Rika, J July 30, 2026 Between Naom Kemunto Mokua Claimant and The Samburu Project Respondent Ruling 1.The Claimant filed an application dated 12th March 2026, seeking an interlocutory anti-suit injunction against the Respondent. 2.She prays the Court to prohibit the Respondent, by itself, its agents or legal representatives, from prosecuting or proceeding in any manner whatsoever, with court proceedings in United States of America case, The Samburu Project v. Mokua, No.25STLC08629 [Cal. Super. Ct. Los Angeles Cnty], pending hearing and determination of this suit. 3.Secondly, the Claimant prays the Court to find that the USA suit above, is in abuse of the process, and therefore restrain the Respondent from proceeding further with the USA suit. 4.The Claimant urges the Court to grant her costs of the application. 5.The application is founded on the affidavit of the Claimant, sworn on 12th March 2026. She also filed a further affidavit, sworn on 2nd April 2026. 6.She explains that the Claim herein, was scheduled for hearing on 18th November 2025. 7.The Respondent filed an application dated 17th November 2025, asking the Court to refer the Parties to arbitration, in accordance with the contract of employment, executed between the Parties. 8.The application was declined in a ruling of the Court, dated 27th February 2026. 9.On 13th January 2026, the Claimant received an e-mail from the Respondent’s Attorney in the USA, Ms. Laura A. Noroski, informing her that the Respondent had filed the USA suit under reference, claiming damages from the Claimant, in the sum of USD 13,125. 10.She was required to file response within 30 days, failing which a default Judgment would be entered against her. 11.The sum claimed in the USA from the Claimant, in the sum of USD 13,125, is the same sum counterclaimed by the Respondent from the Claimant, in the Claim herein. 12.The dispute arises from a contract of employment made and performed in Kenya. Both Parties are resident in Kenya. Termination of the Claimant’s contract of employment by the Respondent took place in Kenya. The correct jurisdiction in the dispute, is the E&LRC in Kenya. 13.The Claimant submits that the Respondent’s action in a foreign jurisdiction is actuated by malice, and is in abuse of the process. It undermines the sovereignty, authority and dignity of the Kenyan Court. 14.The Claimant urges the Court to grant the prayers. 15.The Respondent opposes the application through a replying affidavit sworn by its Executive Director Linda Hooper, on 18th March 2026. 16.Hooper submits that the application is legally untenable, jurisdictionally defective and in misapprehension of both fact and law. 17.She states that the Court does not have jurisdiction to entertain the application. 18.The USA suit, was instigated by The Samburu Project Inc., a corporation registered in the USA, possessing distinct legal personality from the Respondent herein. 19.The Samburu Project Inc. is not subject to the Kenyan jurisdiction. The orders sought if granted, would be in violation of the concept of corporate separateness. The Court would be extending its authority to a non-party. 20.The application is in violation of territorial jurisdiction. The E&LRC cannot restrain proceedings commenced before a competent Court, in a foreign sovereign state. To grant the orders, the Court would be engaging in exercise of extraterritorial jurisdiction, which is unconstitutional. 21.Section 12 of the E&LRC Act, does not confer jurisdiction on the Court to issue anti-suit injunction. 22.Anti-suit injunction is a rare remedy, granted only in the clearest of circumstances. 23.The USA suit involves additional Parties, including the Claimant’s business entity – Mama Triple B Shop, and The Samburu Project Inc. – who are not Parties in the Claim herein. 24.Hooper states that the Claimant’s application is in abuse of the process, premature, speculative and legally untenable. 25.Parties agreed that the application is considered and determined on the strength of their affidavits and submissions. 26.They confirmed filing and exchange of submissions at the last mention, on 11th May 2026. The Court Finds: - 27.The Court is not able to conclude at this stage, whether the suit in the USA, and the suit before it, relate to the same Parties, and the same subject matter. 28.The only Party who is certainly in the Claims pending before the two jurisdictions, is the Claimant herein, Naom Kemunto Mokua. 29.The suit in the USA involves an entity registered in the USA, a corporation named The Samburu Project Inc. 30.This Claimant describes the Respondent, at paragraph 2 of her Statement of Claim, as a Non-Profit Organization, duly registered in Kenya, of P.O. Box 26, Wamba, Kenya. 31.Her contract of employment indicates that she was employed by The Samburu Project, Kenya, not The Samburu Project Inc. USA. 32.The suit in the USA does not involve The Samburu Project, Kenya. It involves The Samburu Project Inc. USA, and also another entity, Mama Triple B Shop. 33.To be granted anti-suit injunction, the Claimant needs to establish that the dispute in the USA involves the same Parties. It goes beyond establishing that the same transactions, or series of events, are involved. 34.There could be a strong suspicion, in the mind of any reasonable person, that The Samburu Project Kenya, and The Samburu Project Inc. USA, are the same transnational business. After all Samburu is a community and place in Kenya, where Respondent’s non-governmental activities appear to have been centred. It is doubtful that there is a community or place in the USA, called Samburu, from which The Samburu Project Inc, could logically derive its name. 35.Executive Director Hooper, is a common feature to both entities. She depones for both entities. It is probable that the dispute filed in the USA involves the same amount of USD 13,125, counterclaimed by the Respondent from the Claimant in the Kenyan proceedings. 36.It is likely that the suit in the USA was initiated to divert the Claimant’s focus and resources, from her Claim in Kenya. 37.Her contract of employment, executed between her and The Samburu Project, Kenya, requires under clause 27, that the contract shall be governed by, and construed in accordance with the Laws of Kenya. The Courts of Kenya, shall have exclusive jurisdiction to adjudicate any dispute arising under, or in connection with the contract. 38.Prima facie evidence points to Kenya, as the convenient forum, the appropriate and exclusive jurisdiction, for adjudication between the Parties, as opposed to the Court in the USA. 39.But the Court cannot grant an anti-suit injunction, based on mere conjecture, suspicion, likelihood, and without the Claimant clearly establishing a link, between The Samburu Project, Kenya and The Samburu Project Inc., USA. It cannot grant an anti-suit injunction, in a suit that involves other Parties beyond the Claimant and the Respondent herein. 40.The Court must first determine whether the Parties and the issues in which the anti-suit injunction is sought, are functionally equivalent to those sought in the foreign action. The Claimant was not clear in her application, whether the trial and determination of her Claim in Kenya, would be dispositive of the issues raised in the USA. It is unlikely to be so, considering that not the same Parties, are involved in both jurisdictions. 41.In James Finlay Kenya Limited v. Anganga & 1043 Others; Hugh Campbell QC [Interested Party] [2022] KEELRC 12963 [KLR], this Court affirmed its jurisdiction to issue anti-suit injunctions, in matters involving employment and labour relations. 42.In an earlier ruling in Petition No. 30 of 2019 between James Finlay v. Elly Okong’o & 6 Others, the E&LRC assumed jurisdiction in a dispute concerning sovereignty and territoriality. 43.The Scottish Courts had issued an order of locus inspection, which was sought to be executed in Kenya, without recourse to the Kenyan Courts. The E&LRC assumed jurisdiction, ruling that locus inspection orders issued in Scotland, could not be executed in Kenya, without recourse to the Kenyan Courts. 44.The ruling of the E&LRC was challenged at the Court of Appeal, on among other grounds, the jurisdiction of the E&LRC, in Elly Okong’o Inganga & 6 Others v. James Finlay [Kenya] Limited [2021] e-KLR. The Court of Appeal did not rule against the E&LRC’s assumption of jurisdiction, underscoring that foreigners could not just walk in Kenya, and undertake execution of an order issued by a foreign Court, without recourse to the Kenyan Courts. 45.The submission by the Respondent that this Court does not have jurisdiction in anti-suit injunctions, is without merit. 46.Anti-suit injunctions fall within the category of interlocutory applications and temporary injunctions, regulated under Rule 45 of E&LRC [Procedure] Rules, 2024. 47.The E&LRC exercises its jurisdiction on all disputes brought before it, in accordance with Article 162 [2] of the Constitution, and Section 12 of the E&LRC Act. Section 12 [3] [1] of the Act, empowers the Court to issue interim preservation orders including injunctions. 48.The primary consideration by the Court, in determining whether to assume jurisdiction, is whether the proceedings in the domestic and foreign jurisdiction are related, involving the same Parties or their alter egos, and whether the proceedings relate to an employment and labour relations dispute. 49.In the James Finlay case, the issue concerning anti-suit injunction, arose from a Claim filed by Kenyan Workers in Scottish Courts, against James Finlay Kenya, for work injuries sustained in Kenya. 50.The Scottish Trial Court had selected to continue with its proceedings, directing James Finlay, to cease its anti-suit proceedings, initiated in Kenya. 51.While the Kenyan Court asserted its jurisdiction over the Kenyans who had opted to litigate WIBA in Scotland, the Scottish Court similarly asserted its own jurisdiction over the Kenyans, in what was viewed as a forum showdown. 52.Lord Peter Braid, in Hugh Campbell KC v. James Finlay [Kenya] Limited, [2022] CSOH 57, termed the anti-suit proceedings in Kenya as ‘’unconscionable, vexatious and oppressive’’ to his Scottish Court, sentiments which appeared to have little regard to judicial comity and sovereign equality. 53.On 23rd November 2023, the Inner House of the Court Session, partly reversed Lord Braid’s decision, in Hugh Hall Campbell KC v. James Finlay [Kenya] [2023] CSIH 39. It was concluded that the Claimants could get substantive justice in Kenya, under WIBA. The Inner House concluded that the suit could continue in Scotland, but ‘’sisted,’’ [temporarily stayed] Lord Braid’s decision, pending exhaustion by the Claimants, of the WIBA procedure in Kenya. The Inner House examined which system offered potentially faster and inexpensive remedy to the Kenyan Workers. 54.The Inner House affirmed that the Scottish Court has jurisdiction in the matter, but applied the forum non conveniens doctrine, a doctrine originated in the 17th century Scottish Courts, concluding that Kenya was clearly the more appropriate venue for adjudication. 55.The sist, means that the Scottish proceedings were suspended, instead of being permanently terminated, in favour of the convenient forum, Kenya. The thinking by their Lordships in Scotland, is that the sist could be lifted, and the Scottish Court proceedings resumed, if the Workers face excessive delays or obstacles under the Kenyan Judiciary. 56.The position by the Inner House appears to overlook that WIBA process, includes objection to the Director DOSH, and appeals to this Court. It could involve appeals to the Court of Appeal, and even Petitions to the Supreme Court of Kenya. WIBA disputes are not unusual at all levels of the appellate jurisdiction. A ‘’faster and inexpensive,’’ remedy mooted by the Scottish Courts, appears unrealistic. 57.The position seems to disregard the clear autonomy and self-sufficiency, of the Kenyan Judiciary. 58.It also seems to undermine the Kenyan Constitution, which strongly protects all persons right of access to justice, and mandates the Kenyan Judiciary to protect and promote the right. 59.What happens if the dispute moves all the way up to the Supreme Court of Kenya? Would the Scottish Courts resume their proceedings, as the dispute pends, at any level in the Kenyan Judiciary? 60.The Scottish Courts in any event, do not supervise the Judiciary in Kenya, and have no role in overseeing the administration of WIBA, so as to leave a window of opportunity for Kenyans to continue litigating in Scotland, if the Kenyan legal system does not offer a ‘’ faster and inexpensive’’ remedy. It is not the role of a foreign Court, to determine that the appropriate jurisdiction, has for lack of fulfilment of certain conditions imposed by the foreign jurisdiction, ceased to be the appropriate jurisdiction, reverting to a forum non conveniens, and enabling the foreign jurisdiction to convert itself to the forum conveniens, enabling the foreign jurisdiction to revive its sisted suit. 61.Is it the role of a foreign jurisdiction to determine if judicial processes in another jurisdiction, are fast and inexpensive? 62.Should not the Scottish Courts, without equivocation, have fully deferred to the doctrines of judicial comity and sovereign equality, and let the Parties litigate entirely in Kenya? 63.The doctrine of judicial comity ensures there is mutual respect between Courts in different jurisdictions. It upholds sovereign equality. 64.The doctrine of forum non-conveniens ought not to be applied conditionally. A forum is either convenient, or not convenient. It is either appropriate or inappropriate. If it is not convenient, the forum should, as in situations where there is no jurisdiction, down its tools, in full favour of the convenient forum. 65.The identity of the Parties, and the subject matter, was never in dispute in the James Finlay dispute, in Kenya and Scotland, unlike in the proceedings herein involving The Samburu Project. 66.James Finlay Kenya, which until recently, operated tea estates in Kenya, has its roots in James Finlay & Co, Scotland, a business founded in 1750 in Glasgow, originally trading in cotton, before expanding to global tea and coffee business. There was an uncontested link, between the Kenyan and Scotland enterprises. 67.The Samburu Project Kenya, the Respondent herein, has not been linked to The Samburu Project Inc, USA, the initiator of the foreign action. 68.It is not possible, based on the material placed before the Court, for the Court to issue an anti-suit injunction against continuation of the foreign proceedings initiated by The Samburu Project Inc. The Court cannot declare that those proceedings are in abuse of the process. It cannot apply the doctrine of forum non conveniens, and rule against the continuation of the proceedings in the USA. 69.The most appropriate recourse for now, in the current Claim, is to let each jurisdiction proceed with their respective matters. The Court need not issue an anti-suit injunction in vain, against a Party in foreign proceedings, who has not been shown to be a Party, to the Claim filed herein. 70.The Claimant shall lead evidence in establishing her Claim, while the Respondent shall do so, in not only responding to the Claim, but also, in establishing the Counterclaim. 71.If the Respondent herein has instigated foreign proceedings against the Claimant, over the same subject matter, for whatever reason, ultimately the outcome of such proceedings, if against the Claimant, would still have to be domesticated to be enforceable in Kenya. 72.The Claimant could yet apply for an anti-enforcement injunction against any foreign Judgment, if such Judgment was improperly obtained in a foreign land, to defeat justice before the Kenyan Court. 73.The issues raised by the Claimant in her anti-suit injunction could validly be raised, in future proceedings. 74.It is also presently open to the Claimant, to challenge the validity of the suit filed in the USA, before the Judge presiding over that suit. She could persuade the Court in the USA to strike out the suit, and direct the Parties to litigate exclusively in Kenya, assuming the Parties are the same, or similar. The Claimant can take pre-emptive action, to avoid any foreign Judgment that interferes with her Claim in Kenya. 75.Judicial comity and sovereign equality, persuades this Court not to issue an anti-suit injunction. 76.For now, the facts surrounding the identity of the Parties, and the subject matter, do not warrant an anti-suit injunction. 77.The Parties should schedule the full Claim for merit hearing.It is ordered: -a.The application filed by the Claimant dated 12th March 2026, is declined.b.No order on the costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68 [5] OF THE E&LRC [PROCEDURE] RULES. 2024, THIS 30TH DAY OF JULY 2026.JAMES RIKAJUDGE