More than 4,000 Kenyan tea workers have scaled the first hurdle after a Scotland court agreed to prosecute their multimillion-shilling compensation claim in the UK.
In a decision dated July 11, Lord Weir ruled that although Kenya would be appropriate to determine the case brought against James Finlay (Kenya) Ltd, there is a real risk that the tea firm workers may not obtain substantial justice litigating their individual claims before the Employment and Labour Relations Court (ELRC).
The multinational had urged the Court of Session in Edinburgh to decline to hear the case arguing that all complainants reside in Kenya, the tea estates are based in the country as is all material investigations of the alleged harm.
“I am, however, satisfied that, for substantially the reasons set out by Mr (Wilfred Nderitu) and Mr (Eric) Theuri (both testified as legal expert witnesses), there is a real risk that the group members will not obtain substantial justice were they to have to litigate their individual claims before the ELRC for damages at common law. That is a conclusion I can only make on the basis of cogent evidence. Unchallenged evidence is not necessarily cogent evidence,” Lord Weir ruled.
Mr Theuri is the Law Society of Kenya president, while senior counsel Nderitu is a former chair of the governing council of the Kenyan section of the International Commission of Jurists (ICJ).
Lord Weir also dismissed the claim by James Finlay that the allegations by the workers involve injuries or conditions, which are covered by Work Injury Benefits Act (Wiba) and which must therefore be dealt with under its compensation regime.
“It follows that the jurisdiction of this court has not been excluded by agreement. The defenders’ plea of no jurisdiction must therefore be repelled,” the court ruled.
The court further agreed with the workers that it is unlikely that any non-governmental organisation in Kenya would be in a position to fund litigation of the nature and character of such proceedings in Kenya.
“In the foregoing circumstances, it is unlikely that the group members would be able to prosecute their claims, individually or collectively and whether or not represented, to a conclusion and to secure justice,” he said.
The company had argued for the case to be tried in Kenya taking into account the interests of all of the parties and the ends of justice.
The company said it was incorporated as a Scottish company in 1925 and its business, in so far as relevant to this litigation, is in Kenya.
The court was informed that the company regularly submits to the jurisdiction of the Kenyan courts.
The court further heard that a majority of the group members do not speak English and many of them cannot read or write, most do not have passports and the taking of evidence of witnesses in the case is likely to take substantially longer than would be the case in Kenya, because the Scottish court, and the professionals practicing before it, do not speak the same language as the witnesses.
The tea pickers, however, argued that the Scottish court is the only one in which they can be suitably tried for the interests of the parties and the ends of justice. They further submitted that there is no prospect of the group members obtaining substantial justice before the Kenyan courts as most of them are very poor and cannot afford to pay privately to pursue their claims.
The 4,800 workers sued the employer over poor working conditions and for suffering physical injuries while at work. They claim that they were subjected to poor working conditions, including working for 12 hours a day for six days a week and carrying heavy baskets of tea leaves, weighing up to 30kg on their backs for a monthly salary of Sh11,616.