In the court of session proceedings held via a video link, Lord Braid acknowledged that the lawyers representing the workers had put forward a “strong prima facie case” that the action taken by James Finlay in Kenya
was “vexatious and oppressive.” The workers have sued the company in the Scotland Supreme Civil Court
for damages, claiming they suffered injuries while working for the company’s tea estates in Kericho County.

On August 6, the Nairobi court issued the company with temporary orders to stop the workers from pursuing the case in Scotland. The company wanted the matter to be pursued through the Kenyan courts citing the local court’s jurisdiction. In its filings at the Nairobi court, the company’s Managing Director Simon Hutchinson stated that the terms and conditions of service for the workers as unionisable employees are governed by the Constitution of Kenya.

Labour statutes

“I am aware that the respondents’ terms and condition of service was and is further governed by the labour statutes enacted pursuant to Article 94 of the Constitution,” the affidavit reads. In their petition through Andrew Smith, the Queen Counsel representing them in Scotland, claim the move by James Finlay was meant to prevent the UK suit from progressing and therefore frustrate the case.

“We also believe that James Finlay prefers to defer the matter back to the Kenyan courts, which are known to be corrupt and ineffective in most cases, as they believed they would get a favorable outcome after facing a series of defeats already in Scotland.” The lawyer noted. Mr. Smith pointed out that the conduct of the company, by seeking and obtaining the orders in Kenya which they have, was not only unconscionable but an abuse of the process of the Scottish Court; contemptuous of the Scottish proceedings; vexations; oppressive of
the group members; and calculated to harass and oppress them to defeat the ends of justice.”

He further noted that the conduct was a breach of the undertaking given to the court by them and the petitioners (tea workers).

“Specifically, we now reserve the right to seek findings of contempt of court against James Finlay and their Directors. However, the conduct complained of in the petition goes far beyond that contempt,” the lawyer said.

In his ruling, Lord Braid said the group proceedings could not continue for so long as the Kenyan ant-suit injunction remains in place. “That in itself will cause prejudice to the group members. To quote the often used phrase, justice delayed is justice denied.”

By Steve Mkawale | The Standard Newspaper