UK judges accused of undermining Judiciary in James Finlay case

When the top management of James Finlay appeared before the Senate's Labour Committee then led by Senator Johnson Sakaja. [File, Standard]

The Employment and Labour Relations Employment Court (ELRC) on Thursday declared that the court in Scotland undermined the Kenyan Judiciary by ordering James Finlay not to pursue a dispute with its employees in Kenyan courts.

In a verdict that now complicates the case before the English Court, Justice Byrum Ongaya declared that the evidence submitted by tea workers violated Kenya’s data protection law.

According to the Judge, the issues at the heart of the cases revolved around employment contracts governed by Kenyan law. At the same time, he said, courts in Kenya are competent to hear and determine disputes between employees and employers

The finding by Justice Onganya means that even if tea pickers succeed in United Kingdom, then, the judgment will not be adopted in Kenya for violation of the constitution.

 Justice Ongaya also barred lawyers from recruiting or even giving evidence relating to sexual abuse and work injuries to the Scottish court in relation to the dispute between the international tea company and its workers.

Meanwhile, the Judge directed the Minister for Labour to formulate regulations that will ensure expeditious and just compensation for work related injuries.

The judge said that the ‘no fault’ regulations should be formulated within 12 months and ought to cover injuries that are currently not included.

The case filed by the Federation of Kenya employers (FKE) poses a diplomatic quagmire as the United Kingdom court is also alleged to have barred James Finlay from litigating any case in Kenya.

FKE lawyer Willis Otieno told Justice Ongaya that allowing workers to sue in a foreign land while the Kenyan courts can hear such cases is a mockery of the justice system and a threat to Kenya’s sovereignty.

He argued that cases under the Work Injury Benefits Act (Wiba) should be handled in Kenya and not outside the country.

“The acts of the fourth and fifth respondents recruiting persons to institute proceedings in a foreign jurisdiction for causes of actions that arise in Kenya and are subject to Kenyan law is a threat to the sovereignty of the Kenyan State, undermines the right to due process of the law in Kenya and challenges the judicial authority of the Kenyan courts,” argued Otieno.

It was the second time that the case was before the court. In the first round, a judge in Scotland ordered James Finlay company to stop a case it filed in Kenya to block another suit in the UK.

Justice Lord Braid ordered the tea firm to have the case proceed in Scotland by withdrawing the Kenyan one. James Finlay has since sold its business to Sri Lankan company Brown Investments PLC.

The court had also initially issued orders suspending the case in the UK. In that case, Finlay’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.

“I am aware that the respondents’ terms and conditions of service was and is further governed by the labour statutes enacted pursuant to Article 94 of the Constitution,” said Hutchinson.

In the UK on the other hand, workers’ lawyer Andrew Smith argued that the Kenyan case was meant to frustrate the suit by ensuring it does not proceed.

“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 favourable outcome after facing a series of defeats already in Scotland,” said Smith.

In the new case, FKE backs James Finlay. The lobby’s director Jaqueline Mugo stated that the case in the UK is a violation of Kenyan law as it also involves the transfer of personal data.