L'accesso alla giustizia dei lavoratori vulnerabili in Kenya: un caso di studio
10.6092/issn.2421-2695/14095
L’articolo analizza le modalità di accesso alla giustizia per i lavoratori dell'industria floricola keniota. Sulla base di un'indagine empirica - che include interviste con quattordici esperti del settore - alcune istituzioni sono state considerate rilevanti al fine di consentire l’accesso alla giustizia: l'istituto nazionale dei diritti umani, gli uffici del lavoro del Ministero del Lavoro e della Protezione Sociale e i Tribunali. Pur tenendo presente che alcuni aspetti sono una conseguenza della posizione del Kenya all'interno della più ampia economia politica internazionale, l’articolo intende approfondire quali siano le barriere per l'accesso alla tutela giudiziaria e illustrare come gli interessi delle élite politiche ed economiche rischino di ridurre l’adeguatezza dei rimedi.
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Aleydis Nissen
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Labour & Law Issues
L'accesso alla giustizia dei lavoratori vulnerabili in Kenya: un caso di studio
Text.Serial.Journal
https://labourlaw.unibo.it/
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Comparative & International Overview
2021-12-21
2021-12-19
2021-12-21
2021-12-21
C.21-C.46
LLI
Aleydis Nissen
2021/12/21
10.6092/issn.2421-2695/14095
C.21
Leiden Law School
2421-2695
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en
C.46
Yin R., Case Study Research and Applications. Design and Methods, Sage, 2018.
Kenyan Vulnerable Workers' Access to Justice: a case study
https://labourlaw.unibo.it/article/download/14095/13537
7
Kenyan Vulnerable Workers’ Access to Justice:
               a case study




                ALEYDIS NISSEN
              Leiden Law University




               vol. 7, no. 2, 2021
                  ISSN: 2421-2695
Kenyan Vulnerable Workers’ Access to Justice:
               a case study


                                                              ALEYDIS NISSEN
                                                             Leiden Law School
                                                        Postdoctoral Researcher
                                                 a.m.h.nissen@law.leidenuniv.nl


                                  ABSTRACT

        This article aims to study access to justice for workers in the Kenyan
floriculture industry. Through a case study – including interviews with fourteen
experts in the field – the following justice institutions have been identified as
relevant: the national human rights institution, the labour offices of the Ministry
of Labour and Social Protection and courts. While keeping in mind that capacity
constraints are a product of Kenya’s position within the broader international
political economy, this article studies related barriers to justice on the ground.
It explains that the perceived interests of political and economic elites usurp
sound remediation.


Keywords: remedies; conflict-resolution; courts; agriculture.

                               https://doi.org/ 10.6092/issn.2421-2695/14095
                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



           Kenyan Vulnerable Workers’ Access to Justice:
                          a case study

SUMMARY: 1. Introduction. – 2. Metodology. – 3. Naming, blaming and claiming. – 4.
     Intermediaries. – 5. Remedies. – 5.1. KNCHR. – 5.2. Labour Offices. – 5.3 Courts. –
     6. Conclusion.


         1. Introduction

        Kenya is the number one producer of cut flowers for European
consumption. A few European colonisers started flower cultivation before
Kenya gained independence from the United Kingdom. Kenya’s first President
Jomo Kenyatta (1964-1978) further stimulated the floriculture industry when
prices for coffee and tea were falling(1). While domestic consumption of Kenyan
flowers is negligible, it is estimated that Kenyan flowers contribute to one per
cent of the country’s Gross Domestic Product nowadays(2). 65 per cent of
Kenyan flower exports go to the Dutch auction(3). From there, they are
distributed to the other European Union Member States and Russia, Japan and
the United States(4). Approximately 32 per cent of exported flowers are sent
directly from Kenya to supermarkets in the United Kingdom, Germany and
France(5). A minority of flowers is exported to Dubai. From there, they are
distributed to various Middle-Eastern and Indian customers(6). New direct
flights to other countries such as China are expected to open up more business

          * Aleydis Nissen is a postdoctoral researcher at Leiden Law School (Institutions
for Conflict Resolution research group), VUB (sponsored by FWO Postdoc grant 74910)
and ULB (sponsored by F.R.S.-FNRS Chargé de Recherche Fellowship grant FC 38129).
          (1) Horticultural Crops Directorate, Welcome to Horticultural Crops Directorate,
https://horticulture.agricultureauthority.go.ke, accessed 20 February 2018.
          (2)      Kenya        Flower        Council,       Floriculture     in    Kenya,      2018,
http://kenyaflowercouncil.org/?page_id=92.
          (3) W. Mitullah - P. Kamau - J. Kivuva, Employment Creation in Agriculture & Agro–
Processing Sector in Kenya in the Context of Inclusive Growth: Political Economy & Settlement Analysis,
Partnership for African Social & Governance Research Working Paper, 2017, 20, www.pasgr.org/wp–
content/uploads/2017/08/Employment–creation–in–agriculture–and–agro–processing–
sector–in–Kenya–in–the–context–of–inclusive–growth.pdf, 25.
          (4) Ibid., 22; M. Nowakowska - A. Tubis, Reliability of the Cut Flowers’ Supply Chain, in L.
Podofillini - B. Sudret - B, Stojadinovic - E. Zio - W. Kröger (eds), Safety and Reliability of
Complex Engineered Systems, CRC Press, 2015, 1757.
          (5) EEAS, Information on the EAC-EU Partnership Agreement’, 2015,
http://eeas.europa.eu/archives/delegations/kenya/documents/press_corner/trade_betwee
n_the_eu_and_kenya_2105.pdf, 12.
          (6) M. Nowakowska - A. Tubis, (n 4), 1757.



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                 A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



opportunities to countries such as China. Despite the coronavirus disease
pandemic, the value of the floriculture sector increased by 3.3 per cent in
2020(7).
        The Kenyan floriculture industry is labour-intensive. Workers are
reportedly expected to work up to sixteen hours a day(8). It is estimated that
floriculture corporations currently directly employ around 90,000 people(9). The
number of floriculture jobs has doubled over the last decade, while the number
of jobs in other industries has stagnated(10). While many of the issues that
floriculture workers face exist also for other agricultural workers in Kenya, they
face particular challenges. They are exposed to extreme temperatures in the
greenhouses and cold rooms, and to a plethora of toxic chemicals, including
those that are illegally imported(11). Exposure to those chemicals produces
cancer, neurologic diseases, birth defects and other reproductive illnesses,
sometimes long after workers have left their jobs(12).
        Since the mid-1990s, the literature has extensively discussed the role of
Kenyan floriculture labour in the neoliberal world order. The literature has paid
attention to gender and neo-colonial power dynamics. It has been considered
that developmentalist mentalities have created their own truths while failing to
take into account global and local forces(13). Notably, Alex Hughes discusses
that economic growth in the Kenyan floriculture industry under President
Daniel arap Moi (1978-2002) was spurred by the controversial ‘Structural
Adjustment Policies’ insisted upon by the World Bank, the International




         (7) Study Reveals What Sustained Kenya’s Economy in 2020, 15 July 2021,
https://furtherafrica.com/2021/07/15/study-reveals-what-sustained-kenyas-economy-in-
2020/.
         (8) Kenya National Commission on Human Rights (KNCHR), The National Action Plan
on Business and Human Rights in Kenya. Report on Stakeholder Consultations held in Nakuru, 2017,
http://nap.knchr.org/Portals/0/Reports/Nakuru%20regional%20consultation%20report.p
df?ver=2017–09–04–174649–763, 7.
         (9) M. Styles, Roses from Kenya: Labor, Environment, and the Global Trade in Cut Flowers,
University of Washington Press, 2019.
         (10) W. Mitullah - P. Kamau - J. Kivuva, (n 3), 29.0
         (11) Interview data – participant KE–O; A. Kargbo - J. Mao - C.Y. Wang, The Progress
and Issues in the Dutch, Chinese and Kenyan Floriculture Industries, African Journal of Biotechnology, 2010,
9(44), 7406; P. Tsimbiri and others, Health Impact of Pesticides on Residents and Horticultural Workers
in the Lake Naivasha Region, Occupational Diseases and Environmental Medicine, 2015, 3, 24-34.
         (12) CEDAW, ‘Concluding Observations on the Eighth Periodic Report of Kenya, 2017, UN Doc
CEDAW/C/KEN/CO/8 para 36(b).
         (13) Cf E. Chowdhury, Development in L. Disch - J. Hawkesworth (eds), The Oxford
Handbook of Feminist Theory, OUP, 2016, 145.



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                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



Monetary Fund and the United States(14). Flower exports were highly
compatible with their agenda to diversify exports of non-traditional goods and
high-value commodities. Stephanie Barrientos explains that there are
considerable barriers for smallholders to understand and reach consumers in
Europe(15). In large farms, women are segregated in more precarious wage
labour jobs. Most recently, Megan Styles describes the attempts by various
actors to use the global flows of people, information and money generated by
floriculture to solve Kenyan social and environmental governance issues in a
subtle ethnographic book-length analysis(16). In my forthcoming Milan Law
Review article, I discuss that it has become increasingly difficult for NGOs
active in the Kenyan floriculture industry to manoeuvre(17). This is highly
unfortunate as public shaming of norm-violating behaviour is an essential factor
to ensure respect for rights(18)
        This article will focus on remediation, another factor that is considered
to be important to ensure that public shaming follows when corporations violate
rights by the constructivist and rationalist literature(19). This article aims to
study which domestic remedies are available for workers in the Kenyan
floriculture industry.
        According to the United Nations Guiding Principles on Business and
Human Rights, a ‘bouquet’ of preventive, redressive and deterrent remedies
should be available to rights holders who claim that their rights are violated by
corporations(20). While human rights and labour rights are separate categories,

          (14) A. Hughes, Global Commodity Networks, Ethical Trade and Governmentality: Organising
Business Responsibility in the Kenyan Cut Flower Industry, Transactions of the Institute of British
Geographers, 2001, 394.
          (15) S. Barrientos, Gender and Work in Global Value Chains: Capturing the Gains?,
Cambridge University Press, 2019, 135-166.
          (16) M. Styles (n 9).
          (17) A. Nissen, Trade with the EU, Variable Geometry and Human Rights in the EAC, Milan
Law Review, forthcoming.
          (18) Th. Risse - K. Sikkink, Conclusions, in Th. Risse - S. Ropp - K. Sikkink (eds), The
Persistent Power of Human Rights: From Commitment to Compliance, Cambridge University Press,
2013, 284.
          (19) See e.g. Th. Risse - S. Ropp, Introduction and Stock-taking in Th. Risse - S. Ropp - K.
Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance, Cambridge
University Press, 2013, 17; E. Hafner-Burton, Making Human Rights a Reality, Princeton
University Press, 2013, 11.
          (20) HRC, Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework. Report of the Special Representative of the Secretary–General on
the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie,
2011, UN Doc A/HRC/17/31 Annex principles 25-31; UN General Assembly, ‘Report of the
Working Group on the Issue of Human Rights and Transnational Corporations and Other Business
Enterprises, 2017, UN Doc A/72/162 para 7.



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                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



labour rights complaints that are usually brought by floriculture workers are also
human rights complaints. They relate to two fundamental labour rights (which
are widely recognized to be human rights): the freedom of association and the
elimination of discrimination in respect of employment and occupation(21).
Furthermore, most case law touches upon the right to health and safety at work,
including the lack of safety gear and exposure to chemicals. This labour right is
a human right included in article 7 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR)(22). In 2019, eleven UN experts asked that
the right to health and safety at work should also be recognized as a fundamental
labour right(23). This call echoes various older calls(24).
        This article is structured as follows. Part 2 describes the methodology.
Part 3 briefly discusses the emergence and transformation of disputes. Part 4
explains that workers struggle to find trustworthy intermediaries. Part 5
discusses to which extent each of the relevant justice mechanisms provides
remediation.

         2. Methodology

        Barriers to justice are often symptoms of broader patterns of
exclusion(25). Remediation mechanisms can also contribute to the
marginalization of workers by reaffirming the expressions of power that are
embedded in laws. The ICESCR and the International Covenant on Civil and
Political Rights indicate that it is important to pay attention to such contextual
background conditions(26). The Preambles of these covenants set out that


         (21) E.g. J. Bellace - B. ter Haar, Perspectives on Labour and Human Rights, in J. Bellace -
B. ter Haar (eds), Research Handbook on Labour, Business and Human Rights Law, Routledge, 2019,
3.
         (22) International Covenant on Economic, Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
         (23) UN OHCHR, ‘UN Experts Urge ILO to Back Safe and Healthy Work Conditions as a
'Fundamental'                                        Right,                                       2019,
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24695&Lang
ID=E.
         (24) E.g. J. Takala, Life and Health are Fundamental Rights for Workers, Health and Safety at
Work: a Trade Union Priority, ILO, 2002, 5; Ph. Alston, ‘Core Labour Standards’ and the
Transformation of the International Labour Rights Regime, European Journal of International Law, 2004,
15, 503.
         (25) A. Nissen, Better Together: a Complementary Approach to Civil Judicial Remedies in Business
and Human Rights, Penn State Law Review, 2018, 122(48), 11.
         (26) International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR).



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                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



conditions need to be created ‘whereby everyone may enjoy his or her rights’(27).
Roderick MacDonald indicates that qualitative research provides the
opportunity to shed a light on barriers and contextual background conditions
which impede access to justice(28).
        The case study research methodology is particularly well suited to shed
empirical light on contemporary phenomena within their real-world context,
especially when the boundaries between the phenomena and context may be
not evident(29) This mode of inquiry allows studying the influence of social,
economic and political factors on laws and institutions that can impede the
enjoyment of rights in complex and relational contexts(30) Evidence from the
field also allows the identification, via inductive analysis, of issues and concepts
that have not been considered or theorized in the literature(31).
        Semi-structured interviews with those concerned with law and policy-
making form one of the most important sources for case study researchers(32).
Participants with the required expertise and experience of how remediation
mechanisms deal with claims in the Kenyan floriculture industry were needed.
The categories of participants were defined with the help of the ‘access to justice
assessment tool’ of the American Bar Association(33). It concerned lawyers,
trade union and NGO representatives, labour officers, adjudicators and
independent experts. A major drawback of this research is that affected right-
holders could not be interviewed(34). An Institutional Review Board indicated
that interviewing them would be an ambitious endeavour because of the
additional layers of protection that are necessary to protect their




           (27) H.J. Cho, Horizons of Human Rights, Humanitas, 2016.
           (28) R. Macdonald, Access to Civil Justice, in P. Cane - H. Kritzer (eds), The Oxford
Handbook of Empirical Legal Research, Oxford University Press, 2010, 516.
           (29) I have used the case study research methodology in the realist tradition. See R.
Yin, Case Study Research and Applications. Design and Methods, Sage, 2018, 15 and 38.
           (30) L. Webley, Stumbling Blocks in Empirical Legal Research. Case Study Research, Law and
Method, 2016, 3, 12–14.
           (31) D. Choudhuri, Conducting Culturally Sensitive Qualitative Research’, in M. Constantine
- Derald Sue (eds), Strategies for Building Multicultural Competence in Mental Health and Educational
Settings, John Wiley & Sons, 2005, 277.
           (32) L. Webley (n 30), 9; A. Argyrou, Making the Case for Case Studies in Empirical Legal
Research, Utrecht Law Review, 2017, 13, 102.
           (33) American Bar Association, Access to Justice Assessment Tool, 2012,
www.americanbar.org/content/dam/aba/directories/roli/misc/aba_roli_access_to_justice_
assessment_manual_2012.authcheckdam.pdf, 34 and 51.
           (34) Cf A/72/162 (n 20) para 22.



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                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



vulnerabilities(35). It was not possible to provide such protection due to resource
constraints. Right-holders’ views were therefore only indirectly included in this
research, in as much as they are reflected in secondary sources.
        The participants were recruited via a combination of emails, phone calls
and direct approaches. They were sampled for range and identified through
non-probability methods to recruit a diverse and specialised overall sample. The
literature review indicated that data collection (and analysis) needed to be
sufficiently differentiated along age and gender lines. Other ‘subcategories’ of
participants that needed to be included were identified during the fieldwork after
the first data were analysed. They were constructed using both reputational and
purposive sampling techniques(36). Subcategories of participants were redefined
and revised until they did not need further modification. Using snowball
sampling made it possible to get in touch with people that were hard to access.
The interviewed participants should benefit from the research in exchange for
the time and information that they provided.
        It is required to discuss the steps that have been taken to ensure the
internal validity or credibility (assessment of the causal relationship between
theory and evidence), external validity (assessment as to whether the case study’s
findings can be subject to generalisation), and reliability or dependability
(assessment as to whether the applied procedures provide stable and consistent
results) of the research(37).
        Three data analysis tactics helped to increase the internal validity of the
research findings. First, the semi-structured nature of the conducted interviews
allowed participants to clarify responses or pursue ideas whenever they felt the
need to. New themes and directions could unfold inductively. It is useful to note
here that Lisa Webley has stated that immersion in the field might more easily
result in confirmation bias by case study researchers(38). However, Bent
Flyvbjerg has argued that case study research would not be any more prone to
confirmation bias than any other qualitative research method(39). He explains

         (35) The research reported in this article has been approved by the Kenya National
Commission for Science, Technology & Innovation (NACOSTI/P/18/59629/22158) and
Cardiff University’s School of Law and Politics Ethics Committee (SREC/051217/07).
         (36) Cf C. Hyde, Multicultural Organization Development in Nonprofit Human Service Agencies:
Views from the Field, Journal of Community Practice, 2003, 11(1), 45 referring to M. Miles - M.
Huberman, Qualitative Data Analysis, Sage, 1994.
         (37) F. Leeuw - H. Schmeets, Empirical Legal Research, Edward Elgar, 2016, 120–122
and 153.
         (38) L. Webley (n 30), 6.
         (39) B. Flyvbjerg, Five Misunderstandings about Case–Study Research, Qualitative Inquiry,
2006, 12(2), 19.



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that the field itself is a powerful and unavoidable disciplinary force in case study
research. Listening to participants in a context that is not part of the researcher’s
normal context can, in particular, sharpen the researcher’s critical awareness.
Second, the explanation-building process benefited from a series of
iterations(40). Data collection and data analysis were placed in a dialectical
relationship. Data were colour-coded to identify emerging themes and the ways
in which people talk about them(41). To define, revise and extend theme
categories, more data were added from additional participants. Theme
categories were considered to be saturated when data could adequately account
for the possible explanations of the identified theme(42). The saturation point
was reached after interviewing fourteen participants for (on average) 60
minutes(43). Third, the interview data were triangulated by comparing them with
data drawn from other sources. Various data analysis techniques, such as
explanation building, pattern matching and cross-case analysis, were used.
        Regardless of whether generalisations are derived from the desk research
or uncovered at the conclusion of the case study research, they need to be
supported by sufficient data and fair argumentative claims to guarantee external
validity(44). Two measures were taken to increase the external validity. First,
extensive efforts were made to make a connection with research participants
that were difficult to reach, in order to collect additional data. Second, the study
design was augmented with ‘how’ and ‘why’ questions(45).
        Finally, accounting for the reliability of the conducted research requires
demonstrating that the research approach was consistent and well documented.
This is to some extent a consequence of the validity of a case study(46). But, two
specific efforts have been made to increase the reliability. First, the research
protocol is discussed in detail here and the files with interview data and
observations (which contain sensitive information) are stored privately(47).
Second, rather than glossing over my role in the field, I draw attention to how


         (40) Cf R. Yin (n 29), 180.
         (41) Cf C. Hyde (n 36), 48.
         (42) G. Bowen, Naturalistic Inquiry and the Saturation concept: A Research Note, Qualitative
Research, 2008, 8, 140.
         (43) Interview participants KE–K and KE–L refused to be interviewed separately.
         (44) R. Yin (n 29), 38-40.
         (45) Furthermore, it is useful to note that I have carried out an additional case study in
the South Korean semiconductor industry. Replicating findings of a first case study in a second
case study makes the analytical implications more robust (ibid p 55).
         (46) M. Patton, Qualitative Evaluation and Research Methods, Sage, 2002, 14.
         (47) Cf R. Yin (n 29), 126–136.



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my background, agenda and emotions have influenced my work in a reflexive
account(48).

         3. Naming, blaming and claiming

        William Felstiner and his co-authors theorized the transformation of
unperceived injurious experiences into claims(49). The three phases are naming,
blaming and claiming. To begin, people identify a particular experience as
injurious (naming). These named injuries can ripen into grievances (blaming).
This means that the injury is attributed to the fault of a responsible actor. Third,
people voice their grievance to the actor believed to be responsible and engage
this actor to ask for a remedy (claiming). Attrition occurs in each phase. Gender
is one of the social structural variables – alongside amongst others class,
ethnicity, age – which affects such attrition(50). People who suffer intersecting
forms of oppression are particularly affected(51).
        Floriculture workers are not always aware that their rights are being
violated(52). Amongst those workers that can identify a particular experience as
injurious and to attribute it to their employers, there is a reported general
disbelief that complaining would change anything(53). Like in various other
contexts around the world, labour rights violations are seen as ‘God’s will’(54).
Justice institutions can only serve their purpose if the people they are intended
to serve know about them, trust them and are able to use them(55). Time,
networks and money all help to get educated on rights violations and the justice
institutions available. Women and other disadvantaged groups have unequal

         (48) A. Nissen, Case Study Research in Kenya and South Korea: Reflexivity and Ethical Dilemmas
(working paper). See P.C. Hsiung, Teaching Reflexivity in Qualitative Interviewing, Teaching Sociology,
2008, 36, 212.
         (49) W. Felstiner - R. Abel - A. Sarat, The Emergence and Transformation of Disputes: Naming,
Blaming, Claiming, Law & Society Review, 1980-1981, 16, 631.
         (50) Ibid., 636.
         (51) K. Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracist politics, The University of Chicago Legal
Forum, 1989, 140.
         (52) Interview data – participants KE–B and KE–C.
         (53) Interview data – participants KE–D and KE–N.
         (54) Interview data – participants KE–D and KE–N; F. Afolabi - P. de Beer - J.
Haafkens, Can Occupational Safety and Health Problems Be Prevented or Not? Exploring the Perception
of Informal Automobile Artisans in Nigeria, Safety Science, 2021, 135, 2 and 7.
         (55) UN General Assembly, Report of the Working Group on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, 2013, UN Doc A/68/279 para 43; UN
Women, UNDP, UN Office on Drugs and Crime and OHCHR, A Practitioner’s Toolkit on
Women’s Access to Justice Programming, 2018, HR/PUB/18/2, 93.



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access to such resources, due to, amongst others, gender pay gaps and a
disproportional share is household work that is not sufficiently valued and
rewarded.
        For many floriculture workers, claiming their rights in company
grievance mechanisms or transforming their claims into a dispute is not
affordable. Getting food on the table is the main priority for workers in a
country with so much unemployment and limited social security(56). Women
and other disadvantaged workers are especially not able to afford the costs that
are associated with voicing their grievances(57). Many workers are single
mothers who have migrated from non-flower growing regions to the flower
farms that are close to Jomo Kenyatta International Airport in Nairobi and
Eldoret Airport(58). The potential negative effects of claiming – most
importantly dismissal – are worse for them, as they risk being sent out of the
company-provided facilities or having to uproot their children(59). This state of
dependence is an effective disincentive to raise concerns about any violation of
their rights taking place during or outside their working hours.
        The interviews indicated that whether in-company proceedings provide
an efficient opportunity to complain and continue the working relationship in a
constructive manner depends, in practice, solely on the goodwill of the farm
management. Floriculture workers are to some extent protected against
dismissal and other disciplinary penalties by section 46(h) Employment Act
(2007). According to this section, no disciplinary penalties can be imposed on
an employee who has brought a complaint or legal proceeding against their
employer. However, this section also provides that disciplinary proceedings
might be taken ‘where the complaint is shown to be irresponsible and without
foundation’.

         4. Intermediaries


         (56) M. Ole, Protecting, Observing and Enforcing Human Rights for Labourers in the Cut Flower
Industry in Kenya: a Critique, 2012, www.researchkenya.or.ke/thesis/21716/protecting,–
observing–and–enforcing–human–rights–for–labourers–in–the–cut–flower–industry–in–
kenya–:–a–critique, 73.
         (57) OHCHR, Survey for report on "Gender Lens to the UN Guiding Principles on Business and
Human              Rights.           Legal            Research             Consortium”,            2018,
https://www.ohchr.org/EN/Issues/Business/Pages/2018Survey2.aspx; C. Sachs - M.
Alston, Global Shifts, Sedimentations, and Imaginaries: An Introduction to the Special Issue on Women and
Agriculture, Journal of Women in Culture and Society, 2010, 35(2), 278
         (58) W. Mitullah - P. Kamau - J. Kivuva (n 3), 29 and 33.
         (59) Interview data – participants KE–C, KE–I and KE–N.



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        Intermediaries are important to empower workers to access justice
institutions(60). Floriculture workers who are aware, able and prepared to voice
their grievances can, in principle, seek support from pro bono lawyers, Kenya
Plantation and Agricultural Workers Union (KPAWU) branch officials and
shop stewards and NGO representatives. There are, however, representation
issues that might complicate floriculture workers’ right to a remedy. The
reported issues for the three categories of representatives are discussed in turn.
        First, floriculture workers can seek support from lawyers who work on a
pro bono basis. In some law firms, the interests of lawyers and workers are
aligned. Bigger law firms often consider pro bono work as a ‘social duty’, which
provides public relations opportunities(61). One issue that has been reported is
that they assign less-experienced staff to prepare such claims(62). The interviews
revealed that ‘ambulance chasing’ lawyers are another problem(63). These
lawyers are exclusively driven by money and often do a disservice to the workers
they claim to represent. For example, such lawyers would accept a bribe from
the floriculture corporation – in the form of an ‘out-of-court settlement’ – and
leave the workers they are supposed to represent empty-handed(64).
        Second, those floriculture workers who are unionised – approximately
50 per cent – can try to seek support from KPAWU, which has a monopoly in
the floriculture industry (and other agricultural industries)(65). However,
KPAWU’s parent union, the Central Organization of Trade Unions Kenya
(COTU-K), used law-making processes to strengthen its own position in 2007.
Until a few days before Mwai Kibaki’s first presidential term ended in that year,
the Federation of Kenyan Employers had successfully opposed the introduction
of new labour laws(66). COTU-K changed the course of history by issuing an
ultimatum to Kibaki, saying that it would mobilise its large membership base to
vote against the ruling party unless the laws were passed before the election
date(67). Due to the time pressure, the laws were passed without much debate

         (60) B. van Rooij, The People vs. Pollution: Understanding Citizen Action against Pollution in
China, Journal of Contemporary China, 2010, 19(63), 70.
         (61) Interview data – participant KE–J.
         (62) Interview data – participant KE–O.
         (63) Interview data – participants KE–C and KE–J.
         (64) Interview data – participant KE–C.
         (65) J. Kabiru, Trade Unionism in the Cut Flower Industry in Kenya. ‘A Case of Kenya Plantation
and Agricultural Workers Union (KPAWU), European Scientific Journal, 2018, 14(13), 221.
         (66) W. Maema, Current Trends in Employment Disputes in Kenya – a Disturbing Trajectory,
2016,                www.ikm.co.ke/export/sites/ikm/news/articles/2016/downloads/IKM–
Employment–update.pdf, 4.
         (67) W. Mitullah - P. Kamau - J. Kivuva (n 3), 29.



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or scrutiny, almost in the same form in which they had been proposed by
COTU-K. This allowed COTU-K to strengthen its monopoly position vis-à-vis
other unions. It created rigid registration provisions that curb the freedom of
association of workers(68) In addition, as will be discussed below the position of
NGOs was weakened(69). This has a disproportionally negative impact on
women. COTU-K has a strong masculinist culture that excludes women’s
voices and issues. It is useful to refer to the landmark case KPAWU v Unilever
Tea (K) Ltd (2014). In this case, KPAWU contested the dismissal of five male
workers on a Kenyan Unilever tea plantation who had been dismissed on the
basis of disciplinary proceedings for sexual harassment(70). KPAWU claimed
that the dismissed workers – most of them in supervising jobs including one
worker who admitted that he had attacked a female co-worker in her house –
should have been allowed to cross-examine the alleged victims during the
disciplinary proceedings, a request that is prohibited in relation to sexual
harassment under section 6(3) Employment Act (2007). Unilever aptly observed
that KPAWU has ‘abdicated its duty of defending … women, who are also their
members’.
        In two independent studies, workers have furthermore reported that
KPAWU branch officials do generally not inform them of their rights or
represent them in cases of rights grievances(71) KPAWU allegedly does not
pursue rights claims as long as money is coming in(72). While there is limited
transparency in the organisation of KPAWU, this observation seems to be
evidenced by the following two points. First, most court cases initiated by
KPAWU against floriculture corporations that are included in the National
Council for Law Reporting’s database concern the failure by companies to



         (68) E.g. Section 14(1)(d)(i) Labour Relations Act (2007)
         (69) KNCHR, ‘Report of the Stakeholders Forum on the Development of a National Action Plan
on              Business             and            Human               Rights,              2016),
http://nap.knchr.org/Portals/0/Report%20of%20the%20Stakeholders%20Forum%20on%
20the%20Development%20of%20a%20NAP%20on%20BHR.pdf, 10.
         (70) KPAWU v Unilever Tea Kenya (2014) 13/2014, Employment and Labour Relations
Court (Kericho) para 17.
         (71) Interview data collected from 24 floriculture workers reported in J. Kabiru (n 65),
222; Interview data collected from 738 floriculture workers reported in Kenya Human Rights
Commission, “Wilting in Bloom” The Irony of Women Labour Rights in the Cut Flower Sector in Kenya,
2012, www.khrc.or.ke/publications/63–wilting–in–bloom–the–irony–of–women–s–labour–
rights–in–the–cut–flower–sector–in–kenya/file.html, 31.
         (72) Interview data – participant (anonymised). See also NTV, Zena Roses Workers
Demand         Salaries    Amounting       to     Ksh.      3M,      15        October        2018,
https://ntv.nation.co.ke/news/2720124–4807564–yxiobu/index.html.



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deduct union fees, at 2 per cent of their gross wages, to KPAWU(73) Second,
while the contribution to COTU-K from flower workers alone is estimated to
be over KES 200 million (EUR 1.72 million at EUR 1:KES 115.75) per year,
KPAWU branch officials reportedly have to work with minimal resources(74).
Shop stewards on flower farms reportedly have to do much of their work alone,
while not being sufficiently trained in handling complaints.
       Third, floriculture workers can try to be supported by NGO
representatives. Although NGO representatives face substantial difficulties in
representing claimants in a labour office or court, they try to find ways to help
workers(75). One interview participant reported, for example, that she helps
workers by setting up a mobile office out of sight of the management, where
workers can get advice(76). Sometimes, NGO representatives ask a fee for
providing their services. While it was alleged by an interview participant that
such a fee helps workers ‘to see the value of the service provided’, the fee can
be as high as three months’ wage for a floriculture worker(77). To alleviate such
problems, the NGO Kenya Human Rights Commission has encouraged the
government to work with NGOs and the Law Society of Kenya to allocate more
funding to legal aid(78). While a National Legal Aid Service was established in
2016, the stringent conditions currently make access to aid practically
unavailable(79).

        5. Remedies

       5.1 KNCHR
       The Kenya National Commission on Human Rights (KNCHR) – which
has A-level UN status under the Paris Principles – can provide those whose
rights have been violated with non-binding means of redress(80). Section 8(d)
KNCHR Act (2011) provides that this Commission can receive and investigate
grievances about alleged abuses of human rights, and endeavour to resolve them
by conciliation, negotiation or mediation. While the UN Working Group on

         (73) E.g. KPAWU v Expressions Flora Limited (2012) 11/2012, Industrial Court.
         (74) Kenya Human Rights Commission (n 71), XI.
         (75) Interview data – participant KE–J.
         (76) Ibid.
         (77) Interview data – participant (anonymised).
         (78) Section 29(2) (d) Legal Aid Act 2016 (KE).
         (79) Interview data – participants KE–A, KE–C and KE–J. See KNCHR, National
Baseline       Assessment       on       Business    and      Human        Rights,     2017,
http://nap.knchr.org/Portals/0/Reports/Kenya%20NBA%20Final.pdf, 49.
         (80) UN General Assembly, Res 48/134 (1993) UN Doc A/48/49.



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Business and Human Rights stated that it heard only positive comments about
the KNCHR’s investigation of grievances(81), it was perceived by some
interview participants as a ‘talking shop’ that sees its adjudicating role as
‘optional’(82). The KNCHR’s website explains that grievances that do not touch
on discrimination issues are redirected to the Ministry of Labour and Social
Protection’s labour offices(83). This practice can be considered unfortunate in
light of the conclusions that are drawn in part 5.2 below. An additional problem
is that the KNCHR Act provides that discrimination grievances that fall under
the mandate of the Gender and Equality Commission are also outside the
KNCHR’s jurisdiction(84). This further limitation to the scope of grievances that
can be brought before the KNCHR is unfortunate as the Gender and Equality
Commission does not host a justice institution(85).

        5.2 Labour offices
        The Ministry of Labour and Social Protection’s labour officers have
jurisdiction over any dispute as to the rights of workers, including the right to
occupational safety and health(86). Major advantages compared to court
proceedings are that labour officers’ decisions are made promptly and
informally(87). There is little cost involved and workers can be helped in
Swahili.88 Labour officers can consider laws, policies, codes of conduct,
collective bargaining agreements and findings of ex officio investigations in their
non-binding decisions(89).
        There are, however, considerable practical and legal issues that impede
the proceedings before labour officers. Practical issues include limited staffing,


         (81) UN Working Group on Business and Human Rights, Statement at the End of Visit
to                                           Kenya,                                           2018,
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23356&LangID=E.
         (82) Interview data – participants KE–D and KE–E.
         (83) KNCHR, About us, www.knchr.org/Aboutus/FAQs.aspx, accessed 28 February
2018.
         (84) Section 8 (d) Kenya National Commission on Human Rights Act Nr 14 2011(KE).
         (85) CEDAW, Concluding Observations on the Eighth Periodic Report of Kenya’, 2017, UN Doc
CEDAW/C/KEN/CO/8 para 14.
         (86) Section 87(1)(b) Employment Act 2007 (KE). The Ministry of Labour and Social
Protection’s Directorate of Occupational Health and Safety has been recognised by the court
as also having the power to adjudicate work injury claims. However, this has been disputed in
court (see I. Kashindi - G. Kashindi - P. Munyao, Employment and Labour Law in Kenya, 2018,
www.lexology.com/library/detail.aspx?g=3b9feea6–9be3–488f–8984–298724a9c797).
         (87) Interview data – participant (anonymised).
         (88) Interview data – participant (anonymised).
         (89) Interview data – participants KE–D, KE–H and KE–N.



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limited training and bureaucratic procurement procedures. Interviewed labour
officers themselves confirmed that they were open to corruption(90). Arguably,
the legal issues are even more concerning. These issues are connected to the
finding that COTU-K prioritised its own perceived interests over those of
workers during the 2007 legal reforms.
         Most notably, section 48 Employment Act (2007) sets out that NGO
representatives or pro bono lawyers cannot represent workers in a labour office.
This is a privilege of trade union representatives(91). Normally, shop stewards
will represent workers in the labour office, and they report the results of the
negotiations back to the KPAWU headquarters. Even if NGO representatives
try to advise workers without formally representing them, this would,
reportedly, have little impact. NGO representatives alleged that labour officers
do not mediate with workers who are not represented by KPAWU but ‘just ask
workers to sign’(92). One interviewed labour officer seemed to confirm such
practices when he explained that NGO representatives are ‘annoying’ and ‘not
representative’(93).
         Section 40 Employment Act also serves the perceived interests of
COTU-K. This section regulates terminations on account of redundancy. This
section is reportedly often abused to dismiss, without payment of severance pay
and compensation for the leave to which they are entitled, those workers that
try to obtain an in-company or state-based remedy. Labour officers can play an
important role in reviewing whether employers have accounted for the seniority,
skills, abilities and reliability of employees when workers’ services have become
‘superfluous’ through no fault of their own, for example, when employers face
inefficiency gains or falling demand in low seasons. But, section 40 protects
trade union representatives better than both non-unionised and unionised
workers. Trade union representatives have a right to be informed about ‘the
reasons for, and the extent of, the intended redundancy’ by the employer,
alongside the labour officer. Non-unionised workers also have a right to be
informed about their redundancy alongside the labour officer, but they do not
have a right to be informed about the reasons or the extent of the
redundancy(94). Unionised workers do not even have a right to be informed



        (90) Interview data – participant (anonymised).
        (91) Interview data – participant (anonymised).
        (92) Interview data – participant (anonymised).
        (93) Interview data – participant (anonymised).
        (94) Section 40 (1)(b) and (f) Employment Act 2007 (KE).



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directly by the employer about their redundancy(95). This creates opportunities
for bribery, as trade union representatives can wield undue influence on the
labour officer without the knowledge of the worker.

        5.3 Courts
        The Kenyan judicial system is a three-instance system, which is
composed of the High Courts and Employment and Labour Relations Courts
as the courts of first instance, six Courts of Appeal, and the Supreme Court as
the ultimate court of appeal(96). The High Courts in the counties have powers
to determine judicial proceedings and constitutional petitions. The Employment
and Labour Relations Courts (or ‘Industrial Courts’) are of equal status to the
High Courts and deal specifically with all matters relating to labour and
employment. Decisions by the courts of first instance can be appealed to a Court
of Appeal. Further appeals come before the Supreme Court, but only in limited
circumstances.
        The United Nations 2015 Universal Periodic Review indicated that the
Kenyan judiciary was considered to lack independence. Interviewed participants
agreed that corruption occurs in court cases(97). Typically, files go ‘missing’ in
such cases(98). Nevertheless, corruption by the judiciary has decreased a lot in
recent years(99). The main reason for this improvement is the increased control
over judges due to the increased computerisation of the court system(100).
Another reason is the active and activist role that the Industrial Courts have
taken upon themselves(101) Proactive judges in this court understand that they
can provoke change, as much gravitas is attached to binding court proceedings
in Kenyan society(102).
        Article 22 Constitution provides that every person has the right to
institute court proceedings claiming that rights or fundamental freedoms in the
Bill of Rights have been denied, violated, infringed or threatened(103). Workers

        (95) Section 40 ibid; Kenya National Private Security Workers Union v G4S Kenya Limited
(2017) 2326/2017, Employment and Labour Relations Court (Nairobi).
        (96) Art 48 Constitution 2010 (KE).
        (97) HRC, Report of the Working Group on the Universal Periodic Review, 2015, UN Doc
A/HRC/29/10 para 142.
        (98) Interview data – participant KE–B.
        (99) Interview data – participants KE–C and KE–E.
        (100) Interview data – participants KE–B and KE–G.
        (101) Interview data – participants KE–A, KE–C, KE–D, KE–E, KE–F and KE–G;
Maema (n 66) p 4.
        (102) Interview data – participants KE–A, KE–D, KE–F, KE–G and KE–O.
        (103) Art 22(1) ibid.



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need to file their claims within a time frame of three years from the alleged
breach(104). Bringing claims in court often requires expert knowledge of the law
and legal proceedings. Flower corporations are normally represented in court by
their human resource manager and an external lawyer. KPAWU officials have
represented floriculture workers in court. It used to be problematic for NGOs
to represent workers in court, as they have no legal standing(105). However, they
have found a way around this issue(106). They can file ‘constitutional petitions’
to secure and preserve rights guaranteed by the Constitution, including the Bill
of Rights, under Articles 22(2) and 258(2)(c) Constitution(107). Class actions are
allowed(108). This allows claimants to pool resources and add visibility to their
case.
        The formalities relating to initiating court proceedings should be kept to
a minimum(109). Courts entertain proceedings on the basis of informal
documentation. It is relatively easy to get and use video or written proof(110).
Blood tests, soil reports and medical notes can also be used as evidence(111).
Witnesses can be brought to court, but witness protection is poor(112).
        Moreover, there are considerable barriers to bringing claims to court.
Such barriers exist in particular for women working in the Kenyan floriculture
industry. They are five times less likely to file proceedings in court (while they
are more numerous and work in worse conditions than men). Costs, the long
delays in proceedings and limited access to court documents pose considerable
challenges to access to justice for floriculture workers(113). Each concern is
discussed in turn. First, Article 48 Constitution stipulates that a fee to file a claim
may be required. Claimants reportedly have to pay to get copies of proceedings
and judgments. There are various other costs, including the costs of transport
to court and the price of medical evidence. For example, in William Wagura
Maigu v Elbur Flora (2012), the claimant paid a doctor KES 10,000 (EUR 86),


         (104) Section 90 Labour Employment Act 2007 (KE).
         (105) Interview data – participants KE–E and KE–K/KE–L.
         (106) Interview data – participants KE–A and KE–F.
         (107) Interview data – participant KE–G; Katiba Institute, What we Do,
www.katibainstitute.org/what–we–do/litigation/.
         (108) Art 22(2)(b) Constitution 2010 (KE).
         (109) Art 22(3)(b) ibid.
         (110) Interview data – participant KE–B.
         (111) Bigot Flower v Julius Mwaniki Wachiri (2016) 12/2015, Employment and Labour
Relations Court (Nakuru) para 13.
         (112) Interview data – participants KE–B, KE–F and KE–K/KE–L.
         (113) R. Kibugi, Development and the Balancing of Interests in Kenya, in M. Faure - W. Du
Plessis (eds), The Balancing of Interests in Environmental Law in Africa, Pulp, 2011, 186.



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which equals approximately a month’s wage, to produce a medical report that
stated that he became quadriplegic after falling off a greenhouse, even though
health facilities are under an obligation to keep and maintain records(114). Costs
of court proceedings follow the events unless for good reason the judge rules
otherwise, either awarding no costs or directing both parties to bear their own
costs(115). Second, the long delays in proceedings are another barrier that
impedes access to courts. Proceedings can take more than a decade, but some
courts, such as the Industrial Courts in Nyeri and Nakuru, work relatively
fast(116). The main reason for the existing lengthy delays is that Kenyan courts
have limited human and material resources to fully carry out their functions(117).
Third, claimants sometimes face barriers in accessing court documents. For
example, the High Court found, in Moses Lubakwa v Bigot Flowers (2012), that the
claimant was ‘not serious and not acting diligently’ as he had not tried hard
enough to get copies of proceedings – despite being able to prove that such
copies had been requested – during the three years that his case was pending(118).
         Judges can directly rely upon the Constitution, which has supremacy over
all laws(119). Judges can also interpret international treaties or conventions that
Kenya has ratified. Article 2(5)-(6) Constitution removed the need for
‘domestication’ of international law. Nevertheless, the status of ratified treaties
and conventions in Kenya remains unclear for two reasons(120). First, the
relation between provisions in the Constitution and international law is
uncertain. Second, Article 93(5) Constitution ‘preserves the people’s sovereignty
and power to enact laws binding unto themselves through Parliament’. This
preservation of the role of Parliament extends through the Treaty Making and
Ratification Act (2012), which sets out that Parliament should play a decisive
role in incorporating international law into Kenya. A related challenge is the
limited expertise of judges about the Constitution and international law. For


        (114) William Wagura Maigua v Elbur Flora (2012) 248/2011, High Court (Nakuru).
        (115) Section 27 Civil Procedure Act 2007 (KE).
        (116) Interview data – participants KE–A and KE–F. See e.g. Elgon Orchards v Doris
Gerizo Agote (2014) 25/2008, High Court (Kitale); Esther Wavinya Mulwa v Redland Roses (2017)
548/2009, High Court (Milimani).
        (117) A/HRC/29/10 (n 97) para 142.
        (118) Moses Lubakwa v Bigot Flowers (2012) 100/2008, High Court (Nakuru). See also
Daniel Karari v Bigot Flowers (2012) 101/2008, High Court (Nakuru).
        (119) Article 2(1) Constitution 2010 (KE).
        (120) J. Ndirangu, Do Articles 2 (5) and 2(6) of the Constitution of Kenya 2010 transform Kenya
into a Monist State?, 2014, www.ssrn.com/abstract=2516706. See also CEDAW, List of Issues
and Questions in Relation to the Eighth Periodic Report of Kenya, 2017, UN Doc
CEDAW/C/KEN/Q/8 para 1.



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example, in a decision of 2020, the Supreme Court failed to call out the
incompatibility of the single union requirements of section 14(1)(d)(i) Labour
Relations Act (2007) with Article 24 of the Constitution and Kenya’s
international obligations, including article 8 ICESCR(121).
        It was explained in part 3 that grievances regarding labour rights are often
only brought to court after the worker has been dismissed (or when no wages
or union dues have been paid). On several occasions, the courts have set out
that the employer must comply with procedural and substantive fairness when
dismissing workers. This means that the reasons for dismissal must be valid and
that a fair procedure must be followed. Fair procedure includes the right of the
worker to be heard before being summarily dismissed. For example, in KPAWU
v Sirgoek Flowers Ltd, the Industrial Court held that it was unfair to fire a worker
for gross misconduct without sending a show-cause letter or hearing the
worker(122). The court, in determining a wrongful dismissal, may recommend to
the employer to pay the wages that the worker would be entitled to or up to the
equivalent of a maximum of one year’s wages or salary (sections 49 and 50
Employment Act (2007))(123). The court can also order the worker to reinstate
the employee in the same or similar work in which they were employed prior to
dismissal, at the same wage. Courts will, however, normally not grant the latter
‘remedy’ as the working relationship between employer and worker will have
been damaged.
        In health and safety cases, the court normally determines whether the
alleged violation was caused by the corporation’s negligence and/or breach of
contractual duty and, if so, whether the respondent is entitled to any damages
and to what extent. It is useful to give three examples. First, in Mt. Elgon Orchards
v Doris Gerizo Agote (2014), the High Court held that the defendant had been 30
per cent responsible for chemical trauma to both eyes ‘by failing to observe
safety precautions’(124). The claimant was 70 per cent responsible as the
defendant should not have been asked to harvest flowers before the chemicals
had dried up. Second, in David Gaitho Ndungu v Timaflor Ltd (2016), the
Employment and Labour Relations Court considered that the defendant had

         (121) KPAWU v KEFHAU and the Registrar of Trade Unions (2020) 4/2018, Supreme
Court. See Nissen (n 17).
         (122) KPAWU v Sirgoek Flowers Limited (2013) 34/2013, Industrial Court (Nakuru)
interpreting section 44(4)(d) Employment Act 2007 (KE).
         (123) E.g. David Gaitho Ndungu v Timaflor Limited (2017) 132/2016, Employment and
Labour Relations Court (Nyeri).
         (124) Elgon Orchards v Doris Gerizo Agote (n 116). See also Esther Wavinya Mulwa v Redland
Roses (n 116).



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unfairly dismissed the claimant after he had been hospitalised for
organophosphate poisoning and refused to sign a declaration that he was ‘fit to
work’(125). In both cases, the court considered that the employer failed to
provide protective work gear (as required under section 101(1) Occupational
Health and Safety Act (2007)). In more recent cases, however, the Employment
and Labour Relations Court held that injured workers were considered 50 per
cent responsible because they had been provided with protective gear(126).
Arguably, all the applied standards of shared liability fall below the standard set
out in the UN Principles on Human Rights and the Protection of Workers from
Exposure to Toxic Substances (2019)(127). Principle 13 describes that
remediation mechanisms need to take into account information about
occupational diseases that are known to have occurred in a particular type of
work or industry.
        Corporations often allege that the worker was not employed or not ‘on
duty’ at the time of an accident or unlawful dismissal(128). Payslips with the name
of the claimant and respondent are accepted as evidence to prove that the
worker was in an employment relationship(129). Some employers are, however,
reluctant to provide payslips or allege that they provide them via email, even
though most workers do not have access to the Internet(130). In response, some
Employment and Labour Relations courts have held that the burden of proof
for holding that workers were not ‘on duty’ is on the corporation(131). According
to section 74 Employment Act (2007), employers have to keep written records
of all employed workers, their rest days and sick leave. In practice, most
employers fail to provide these records in court. An exception is Bigot Flowers


         (125) David Gaitho Ndungu v Timaflor Limited (n 123).
         (126) Bigot Flowers (K) Limited v Livingstone Oramis Ekirapa (2019) 3/2016, Employment
and Labour Relations Court (Nakuru); Bigot Flowers Limited v Zakiah Kairuthi Shaban (2019)
61/2017, Employment and Labour Relations Court (Nakuru).
         (127) HRC, Principles on Human Rights and the Protection of Workers from Exposure to Toxic
Substances. Report of the Special Rapoporteur on the Implications for Human Rights of the Environmentally
Sound Management and Disposal of Hazardous Substances and Wastes, 2019, UN Doc A/HRC/42/41
para 88.
         (128) E.g. Elgon Orchards v Doris Gerizo Agote (n 116); Kashindi (n 86).
         (129) Esther Wavinya Mulwa v Redland Roses (n 116).
         (130) KPAWU v Kongoni River Farm (Star Division) (2017) 124/2017, Employment and
Labour Relations Court (Nakuru); Antony Gitonga, Another Flower Farm Sacks 500 Workers in
Naivasha,          Standard          Digital          (Nairobi,         10         April          2017),
www.standardmedia.co.ke/business/article/2001235717/another–flower–farm–sacks–500–
workers–in–naivasha).
         (131) Bigot Flower v Julius Mwaniki Wachiri (n 111) para 20; Elgon Orchards v Doris Gerizo
Agote (n 116).



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Limited v Peter Jakoyo Anyago (2019)(132). In this case, the judge decided that the
defendant had not been at work because his name was not in the records.

        6. Conclusion

        This article assessed access to justice for Kenyan floriculture workers.
Labour rights disputes – mostly touching on the right to health and safety at
work – are often only brought in state-based justice institutions after the worker
has been dismissed (or when wages or union dues have not been paid out).
Floriculture workers can simply not afford to bring a remedy against their
employer and risk losing their jobs. Such impacts are especially strong for
women workers who face multiple forms of discrimination. Capacity constraints
are in many respects a product of Kenya’s position within the broader
international political economy, where it is dependent on a labour-intensive
export sector. Such constraints are likely to persist, as the bilateral Economic
Partnership Agreement between the European Union – the most import market
for the Kenyan floriculture industry – and the East African Community does
not significantly alter the existing system(133). Furthermore, the sound working
of legal and institutional systems for the protection of Kenyan floriculture
workers is subordinated to the perceived interests of political and economic
elites. The integrity of administrative or judicial processes is sometimes
undermined by the corruption of individual officials. This article has also
determined that existing labour laws are functional for serving the needs of the
trade union COTU-K at the expense of workers. Various deficits in the
proceedings of the KNCHR and the labour offices have been identified. Some
judges, especially in the Employment and Labour Relations Court are, however,
oriented towards strengthening rights remediation. They have already found
some ways to work around laws that favour those in power. Findings of case
study research are fragmentary and cannot be transferred or generalised across
contexts. Nevertheless, some of the results might be relevant to other contexts.
The findings might be partly applicable in other export industries. I have, for
example, been able to find similar patterns regarding fear of dismissal in an




       (132) Bigot Flowers Limited v Peter Jakoyo Anyango (2019) 60/2017, Employment and
Labour Relations Court (Nakuru).
       (133) See A. Nissen (n 17).



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               A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



additional case study on remediation for workers in the Korean semiconductor
industry(134).




          (134) Compare the titles of my two articles in popular media on these two case studies:
A. Nissen, In Kenia is de Ene Rozenplantage de Andere Niet: “Klagen is Ontslag Vragen”, 24 October
2020, Knack, https://www.knack.be/nieuws/wereld/in-kenia-is-de-ene-rozenplantage-de-
andere-niet-klagen-is-ontslag-vragen/article-longread-1656597.html, and A. Nissen, Meer dan
200 Samsung-arbeiders Ziek of Dood door Blootstelling aan Toxische Chemicaliën. Wie Klacht Indient
Verliest haar Job, January 2021, Eos Magazine.



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                A. NISSEN, Kenyan Vulnerable Workers’ Access to Justice: a case study



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