In a judgment, the court held that vetting all licensed recruitment agencies was a proportionate remedy to address concerns raised in the petition, instead of imposing a blanket suspension on labour migration to Middle Eastern countries.
The court directed the Ministry of Labour, the first respondent in the case, to immediately undertake the vetting of all local employment recruitment agencies.
The judge, however, declined to order the immediate evacuation and repatriation of all Kenyan migrant workers facing abuse, exploitation or deportation in the Middle East, finding that such an order was too broad and impractical to implement.
The court nevertheless ordered the government to repatriate the body of the late Lucy Ngana, who died while working in the Middle East, at the State’s expense. The judge found that the government had failed to comply with Section 84 of the Employment Act, which requires labour officers to ensure the repatriation of deceased migrant workers. A status report on the repatriation is to be filed in court within three months.
The court observed that although the government had argued that repatriation posed financial challenges to affected families, the State had a statutory obligation to facilitate the return of deceased Kenyan workers where the law had not been complied with.
On the petitioners’ request for Kenya to ratify various international labour conventions, the court held that ratification of treaties is a matter reserved for the Executive and Parliament and falls outside the court’s mandate.
Instead, the judge recommended that the government consider ratifying the proposed international instruments to strengthen the protection of Kenyans seeking employment abroad.
Citing the doctrine of separation of powers, the court declined to compel the government to suspend labour migration to the Middle East, establish labour officers in all Kenyan consulates, fast-track bilateral labour agreements, or enact the Labour Migration Management Bill.
However, the court directed that its judgment be forwarded to the Attorney General for consideration in the development of comprehensive labour migration legislation and a harmonised national labour migration policy.
The judge also declined to issue several other orders sought by the petitioners, including directives requiring the government to file reports on public awareness programmes, rehabilitation of migrant workers, return of confiscated travel documents, and payment of travel expenses for prospective migrant workers.
The court further ruled that it lacked jurisdiction to order the government to provide financial support to the children of the deceased migrant worker until they attain adulthood, noting that the children were not employees within the meaning of the Employment Act.
The petitioners’ request for compensation for alleged physical, mental and psychological suffering was also rejected. The court held that the matter had been brought primarily in the public interest to address systemic challenges affecting Kenyan migrant workers rather than individual claims for damages.
