Kenya court stops NGO from filing Finlay cases in Scotland

James Finlay

Tea pickers at work. FILE PHOTO | NMG

More than 2,000 tea pickers who have sued agricultural firm James Finlay Kenya over alleged poor working conditions have suffered another blow after a judge ruled that decisions made by foreign courts that are not in line with the Constitution cannot be enforced in Kenya.

Employment and Labour Relations Court judge Byram Ongaya further stopped an NGO that has filed cases on behalf of former and current tea pickers from instituting cases in Scotland.

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The court decision, made on November 30, 2023, came a few days after James Finlay’s tea business was acquired by Brown Investments Plc on November 27, 2023.

The tea pickers have filed several cases in Scotland against the multinational seeking compensation for injuries suffered and for poor working conditions.

But Justice Ongaya directed Justice and Environment Foundation and Kenyan lawyer based in the UK, Ronald Onyango, to cease participating in the prosecution of the Scottish proceedings until they have complied with the mandatory constitutional and statutory provisions applicable in advancing the cases in Scotland.

“The declaration that the act of the fourth and fifth respondents (the NGO and Mr Onyango) to cease recruiting individuals and filing suits in foreign jurisdictions in a manner incompatible with Kenyan law is illegal and, therefore, null and void and orders emanating from any such proceedings cannot be enforced in Kenya,” said the judge.

According to the judge, the Director of Occupational Health and Safety Services has the jurisdiction to deal with work injury claims arising from employment relationships in Kenya under section 16 of the Work Injury Benefits Act at first instance.

The judge added that the Scottish courts have no jurisdiction at all unless established by law.

The workers sued the grower and supplier of Kenyan tea 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 30 kilogrammes on their backs for a monthly salary of Sh11,616.

The workers secured a first win in July when a judge in Scotland allowed a petition for the case to proceed in the UK despite fierce opposition by the company, which argued that the case would be better handled in Kenya.

In the latest decision, the Federation of Kenya Employers (FKE) submitted that being a representative body of employers in Kenya, it was concerned about the emerging trend of labour suits being filed outside Kenya to allegedly undermine the ability of Kenyan courts and administrative structures to resolve any such disputes in the manner provided by law.

FKE further argued that such a move would have a drastic effect in resolving labour disputes and undermine the right of employees to access to justice and fair hearings as provided in the constitution.

The judge agreed with FKE that the appropriate course of action was to pause the Scottish proceedings pending resolution of the claims under WIBA.

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Justice Ongaya added that the orders made by the court in Scotland, declining to allow the case to be heard in Kenya under WIBA, violated the sovereignty of the Judiciary in Kenya as found and also amounted to curtailment of fundamental rights and freedoms as already found.

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