"They further aver that funding is available to pursue their claim in Scotland. In order to effectively compare the funding position with that available in Kenya, the defender (James Finlay) requires to consider the funding arrangement the group members have secured in Scotland."
Lord Davidson further seeks disclosure of any application made pursuant to the Kenyan Work Injuries Benefits Act 2007 by 308 group members who were added to the register since September 30, last year.
James Finlays also seeks any applications made to the Kenya Legal Aide Service in respect of funding claims regarding their alleged injuries.
Lord Davidson maintains that he wished to test the proposition by carrying out a comparison with the positions in Kenya with those in Scotland.
But King's Counsel Andrew Smith and lawyer Ronald Onyango of RKO Advocates, for the tea pickers, opposed the motion on grounds that what was being sought was irrelevant to the issues before the court, and that it came far too late.
Smith argues that no application for legal aid has been made by any of the tea pickers. "A witness statement is likely to be made available shortly, which confirms from the legal aid organisation that no such funding has been applied for and even it if it has been, it would have been refused."
"In December 2021, correspondence was sent to the defenders' then agents making clear that legal aid was not, in essence, available."
Smith said if the funding was important now, it should have been important then. "The defenders list of witnesses does not disclose anyone who can speak to the issue of availability of legal aid or not. There is equally no basis for seeking funding agreements."
Calling on the court to dismiss the motion, Smith said the documents sought were not relevant to the issue.
"Separately, the matter comes far too late. It would require some 300 individuals to be requested to sign a form confirming that there are no such documents available."
The main case is set to commence from March 14 to March 28.
The recent development comes at a time when the tea pickers have made notable wins in the case so far in Scotland.
In January last year, they were allowed the workers to sue James Finlay. In August, lawyers representing the tea pickers won an order from the court of session, Scotland's highest civil court, telling James Finlay to abandon attempts to block the suit through the Kenyan courts.
Stay informed. Subscribe to our newsletter
The ruling on the motion will be delivered on Thursday at noon Kenyan time.
Subscribe to our newsletter and stay updated on the latest developments and special
Pick your favourite topics below for a tailor made homepage just for you