Scotland court freezes tea workers' case against James Finlay

James Finlays tea plantation in Kericho on October 27, 2021. [Kipsang Joseph, Standard]

A Scottish court has frozen a case where tea pickers sued James Finlay for compensation for injuries they say they suffered working for the firm.

Scotland Court First Division (Court of Appeal) judges Lord Carloway, Lord Pentland and Lord Doherty, ruled the claims against the international tea company should first be subjected to the Work Injuries Benefits Act (Wiba) process in Kenya.

The trio said in the event the employees get less compensation than what they deserve after the Kenyan process, then the court in Scotland may reopen the case.

The judges said the WIBA issue could not dealt with in Scotland as the courts there have no substantial knowledge of how the Kenyan work injuries compensation system works.

“If the court’s construction or its understanding of the practical operation of the WIBA turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be an excessive delay, the court may have to revisit the question of substantial justice and consider whether the issue should be recalled,” the judges said.

Justice Carloway ruled: “The court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice.”

In the case, Finlay’s directors argued that WIBA assessment would be favourable for the aggrieved employees as the same would be done without them incurring any cost.

At the same time, the multinational firm said that aggrieved employees have an appeal process in the Kenyan judicial system.

Foreign land

Despite the case being in a foreign land, Kenyan expert witnesses were at the heart of it. Finlay called in former AG Githu Muigai as its expert witness, as the tea pickers invited Law Society of Kenya president Eric Theuri and senior lawyer Wilfred Nderitu.

Prof Githu told the court that WIBA was enacted to ensure employees get full pay for injuries suffered at the workplace. He argued the system was put in place to ensure employers have safe working places.

He observed that the work injuries compensation system was meant to ensure the issue is resolved administratively. This, he said, was meant to keep off ‘ambulance chasing lawyers’, who he alleged had caused problems in the labour industry.

He said there was a need to try resolving the case by using Kenyan law and only escalate the matter to the Employment and Labour Relations Court if that failed.

Githu further said that Musculoskeletal injuries, which form a part of the case, are covered under WIBA, including back injuries.

Nderitu countered Githu’s argument noting that although WIBA was meant to offer a quick solution, many injuries are not listed in its schedule.

He said WIBA is a no-fault-based system. He argued that if the employer contributed to the injuries suffered, then, the system has no recourse, saying the case should be left to the UK court to settle.

“Further, a claim that is more than a year old cannot be resolved through WIBA,” Nderitu said.

Theuri said WIBA compensation was negligible, and expressed concern about the complexity of the Kenyan legal system. “The Director of Occupational Safety and Health Service, who is supposed to assess the compensation, is inadequately funded,” he said.

Finlay moved to the Court of Appeal after the High Court in Scotland sided with the tea pickers.