By Steve Mkawale |  (2^nd April 2023), The Sunday Standard

James Finlays Tea Estate in Kericho County.[File, Standard]

More than 1,000 tea pickers who claim to have suffered health complications while working at James Finlay Kenya (JFK) Limited want their case heard in the United Kingdom. They claim to have suffered health complications due to alleged harsh and exploitative working conditions at the Scottish tea farm.

After two weeks of hearing submissions from the company, the workers’ lawyers and legal experts, Lord Weir of the Scotland Court Session, will decide on the matter in a few weeks.

The tea pickers, who claim they suffered musculoskeletal injuries that affect the bones, muscles, ligaments, nerves, or tendons, argue they took the case to Scotland because it was almost impossible for them to get justice in Kenya.

Through Kings Counsel Andrew Smith, Cameron Smith and Kenyan-born British lawyer Ronald Onyango of RKO Advocates LLP, the applicants argued they could not get justice in Kenya through the Work Injury and Benefits Act (Wiba), which they say reduces the Judiciary’s role in such cases to an appeals platform.

Kings Counsel Hugh Campbell is the appointed Representative of the Party (RP), representing the over 1,300 former and current employees of JFK in the UK court. Under the Act, workers who get injured or ill in the line of duty apply for compensation from the Directorate of Occupational Safety and Health Services.

James Finlay, tea pickers differ over funding of UK court case

James Finlay has its registered address in Aberdeen, Scotland, and the tea workers feel it is the right place to launch their suit for compensation.

The applicants’ lawyers submitted that it was up to JFK to establish that the Scotland Court lacks jurisdiction to entertain all the cases, but the firm has failed to do so.

The workers insist that the policy is made at the multinational’s registered parent company in Scotland and that the ultimate beneficiary of the profits derived from the alleged labor rights violations are domiciled in Scotland.

However, the tea company argues that the lawsuit should be dealt with in Kenya. In the first bid to have the case heard and determined in Kenyan courts, JFK 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.

In its pleadings seen by The Sunday Standard, the company that runs vast tea plantations in Kericho and Bomet counties said Scottish courts lack authority to preside over the case.

It further stated that letting Scottish courts determine the class action suit would be a direct attack on Kenya’s sovereignty.

In Scotland, the company has requested Court of Session Judge Lord Weir to decide whether claims involving 300 workers should proceed. The outcome will affect an associated case involving another 1,000 JFK workers. The case has been temporarily halted by courts in Kenya. As the workers wait for the determination of the application on the jurisdiction, lawyers say more than 2,250 workers have signed up to launch damages claims against JFK.

However, JFK argued the Scottish court would not understand Kenyan culture, hence the need to have the case heard locally.

Legal experts who were called to help the court determine the issue of jurisdiction gave varied opinions. Former Attorney General Githu Muigai supported JFK’s argument that the workers should have pursued their claim in Kenya.

The law professor insisted that the company is based in Kenya and that the workers’ contracts are based on Kenyan laws.

Muigai backed the company’s stand that the workers’ claim will be well handled under the Wiba Act, and therefore the case in Scotland should be terminated.

However, the lawyers and experts for the workers told the court that the law has a very short list of injuries and illnesses covered under the schedule, which would exclude several of the plaintiffs.

Lawyer Wilfred Nderitu, an expert witness for the tea pickers, told the Scottish judge the schedule of injuries listed under the Act can see some claimants excluded from compensation despite contracting complications from the same organization as others who will get paid.

The hearing on jurisdiction was concluded against the backdrop of a BBC investigation that uncovered alleged sexual exploitation of women employed at JFK plantations in Kericho. The company has since dismissed two contractors.