Two days before the August 9, 2022 General Election, the attention of Kenyans and the world was fixed upon the polls that would determine who, between Dr William Ruto and Mr Raila Odinga, would be the country’s fifth President.
But, for James Finlay and over 1,000 of its past and current workers, court proceedings before Scottish judge Lord Braid was the most important event.
Judge Braid was presiding over a David vs Goliath legal battle that had seen a group of tea pickers claim at least £125 million (Sh20 billion) from James Finlay.
The legal battle started with seven test cases filed in 2017 but has grown into a class action suit accusing James Finlay of profiting from intentional exposure of workers to inhumane working conditions that have left over 1,000 tea pickers with excruciating musculoskeletal injuries.
Some, the court papers claim, were unceremoniously sacked with no financial benefits to cater for medical bills or to start less strenuous businesses.
The complainants were, at different times over the past two decades, employed by James Finlay to pick tea at its 25,000-acre plantation in Kericho County that are now over 100 years old.
Just four days before Judge Braid’s proceedings, James Finlay had filed a fresh case at the Employment and Labour Relations Court in Nairobi seeking to quash the Scottish case and requesting temporary orders suspending it.
The multinational held in its application that Scottish courts had no authority to preside over the case that has, for over half a decade, raised tensions at the firm. It added that letting Scottish courts determine the class action suit would be a direct attack on Kenya’s sovereignty.
Temporary orders
Judge Braid was not happy with James Finlay’s move to stall proceedings. The firm, to him, was performing legal gymnastics by using Kenyan courts to ensure the Scottish case never took off.
Three days later, the Nairobi court issued orders temporarily stopping the Scottish case.
But the Kenyan court placed James Finlay’s case in abeyance on December 2, 2022 following Lord Braid’s orders, which opened the door for the case in Scotland to proceed.
James Finlay has twice tried, unsuccessfully, to overturn Lord Braid’s orders barring it from using Kenya’s courts to stop the Scottish proceedings.
On March 16, 2023 James Finlay was still reeling from a BBC documentary that exposed gross sexual abuse on its plantations and those owned by Unilever.
At least 70 women have come out to reveal the sexual abuse they have gone through in exchange for work in farms owned by James Finlay and Unilever. James Finlay has since fired the contractor at the centre of the sexual abuse allegations and offered all its workers positions at the multinational. Director of Public Prosecutions Noordin Haji ordered for an investigation following BBC’s documentary.
The class action suit was slated for hearings on select days over a two-week period. The tea pickers are being represented by Thompsons Solicitors Scotland. CMS Cameron McKenna Nabbaro Olswang LLP is representing James Finlay. Lord Weir took over the case in Edinburgh from Lord Braid. His immediate task is to determine which courts – Kenyan or Scottish – have authority to preside over the class action suit.
James Finlay is sticking its ground that the claim belongs in Kenya, but should not be determined in a courtroom.
The multinational insists that the workers should have sought compensation under the Work Injury and Benefits Act (Wiba), which reduced the Judiciary’s role in such cases strictly to an appeals platform for disgruntled claimants.
Under Wiba, workers who get injured or ill in the line of duty apply for compensation from the Directorate of Occupational Safety and Health Services. Companies are required to take out insurance covers for such outcomes.
But the tea pickers in the class action suit hold that Wiba is not the right forum to address their grievances as some of their injuries are not listed among conditions for which compensation can be given. The multinational further holds that the plantations are in Kenya and the alleged labour rights violations occurred in Kenya and should be determined locally.
But the workers insist that policy is made at the multinational’s registered parent company in Scotland. They add that the ultimate beneficiary of the profits derived from the alleged labour rights violations are domiciled in Scotland.
Expert witness
On March 16, former Attorney-General Githu Muigai took to the witness box to support James Finlay’s claim that the tea pickers should have pursued their claim in Kenya. Prof Muigai insisted that James Finlay operates in Kenya and had given workers contracts under local laws.
James Finlay brought Prof Muigai on board as an expert witness to testify on why the Scottish case should be terminated in favour of the Wiba route.
The tea pickers, he added, should have filed for claims with the Director of Occupational Safety and Health Services, which is in charge of paying compensation under the Wiba Act.
The Act provides for compensation of a maximum of eight years’ salary. One of the issues that has become a central point of the Scottish proceedings so far is the definition of injury or illness under Wiba. Lawyers and experts for the tea pickers last week told the court that the law has a very short list of injuries and illnesses, which would exclude several of the plaintiffs.
Prof Muigai insisted that Kenya’s legal system has had no problem translating work injuries into compensation for workers under Wiba. Prof Muigai added that one of the reasons Wiba was enacted was to cut out “ambulance chasers” who filed several claims against companies and won millions that drained the firms.
Law Society of Kenya President Eric Theuri differed with Prof Muigai, arguing that, at the time, most lawyers new to the profession would often get cases involving personal injury hence the high number of suits. He said payments made under Wiba are relatively small when compared to claims made under common law, which means filed in court.
Injuries
Mr Wilfred Nderitu, a seasoned advocate and expert witness for the plaintiffs, told the judge that the schedule of injuries listed in Wiba can see some claimants excluded from compensation despite contracting complications from the same organisation as others who will get paid.
The Scottish case has also revealed some gaps in Kenyan law.
When the first group of seven plaintiffs filed their cases in 2017, the Scottish court issued orders for inspection of James Finlay plantations. After a group of eight experts arrived for the process, James Finlay filed a case in Kenyan courts arguing that there were gaps in the Foreign Judgments (Reciprocal Enforcement) Orders Act which do not provide for recognition of orders from ongoing cases in other countries.
The multinational held that the Act only provides for recognition of final decisions in the shape of judgments. In 2021, the Court of Appeal ruled that foreign courts have to liaise with Kenyan courts to effect such orders. The tea pickers have appealed the decision at the Supreme Court.
The plaintiffs have told the Scottish court of the injuries they sustained while working for James Finlay.
Mr Lucas Omoke said in court papers that he would pluck up to 80kgs of tea in a day, and had to make up to 10 trips between the plantation and factory.
After being transferred to the mechanical harvesting department, Mr Omoke developed injuries that now bar him from doing physically daunting tasks.
Simeon Hutchison, James Finlay Kenya’s managing director, has testified that the workers may have suffered the injuries in their childhood while carrying water home from rivers. BY DAILY NATION