Former James Finlay workers demand Sh2.6bn payment

Behan & Okero Advocates has confirmed to the Nation that the cases have formally been filed in Scotland, and several other workers could follow suit by lodging more claims against the multinational.

The fresh cases have pushed claims against James Finlay to Sh2.614 billion, even as the Kenyan courts hold the keys to a crucial inspection of farms where workers say they suffered injuries.

Behan & Okero Advocates is working with Wales-based Hugh James Solicitors, the law firm that successfully represented coal miners in a £2 billion (Sh301 billion) compensation claim against the British government, and Scotland’s Thompson Solicitors in the Edinburgh cases.

Can of worms

For James Finlay, the cases have opened a can of worms.

Aside from the risk of paying billions of shillings in reparations, the company is staring at potential boycotts in the United Kingdom where multinationals with a Kenyan presence have previously become pariahs on account of human rights abuses.

Last year, Kakuzi PLC was blacklisted by top retail chains in Europe after a group of neighbouring residents sued the multinational’s parent companies for injuries allegedly sustained from vicious assault by security guards protecting avocado farms.

Kakuzi lost hundreds of millions after top retailers like Tesco and Sainsbury’s suspended purchase of avocadoes grown in the multinational’s farms in Murang’a.

Seven Kenyans fired the first salvo in the All Scotland Sheriff Personal Injury Court, filing a suit in 2017 demanding that James Finlay Kenya compensates each of them with Sh2 million for injuries suffered on the multinational’s farms in Kericho and Bomet counties.

Elly Okongo Ingang’a, Lucas Onduse Omoke, Vitalis Otieno Muga, Rebecca Okenyuri Nyakondo, Joice Mongare Ochoi, Christopher Owamba Chuma and Gesula Matela Idinga each filed individual cases in Edinburgh, Scotland.

Test cases

The seven claims filed on May 8, 2017 were test cases, which were to open the door for thousands of other past and present workers to sue James Finlay.

Both sides of the compensation war agreed that Scotland’s courts have authority to determine the dispute.

But for three years, lawyers representing the claimants have been unable to access James Finlay’s farms to allow experts collect evidence intended for the Scottish cases.

James Finlay is enjoying orders barring the inspection until local courts adopt the directions issued by Scottish judge Kenneth McGowan.

The inspection was barred following a case filed by James Finlay, which has revealed a gap in local laws that could affect other cases in which foreign courts issued orders for enforcement in Kenya.

Adoption of foreign judgments

Kenya’s laws only refer to adoption of foreign judgments, or orders issued at the end of a case.

The Foreign Judgments (Reciprocal Enforcement) Orders Act does not give direction on how to deal with court orders issued in foreign courts and which are not final in nature.

Kenya’s Supreme Court has now been asked to determine whether there is need to get a local endorsement of foreign orders in instances where both parties have agreed to have a matter determined by judges in other countries.

The seven claimants also want the top court to rule whether foreign orders issued before the end of a case must be endorsed by Kenyan judges for execution.

The High Court and Court of Appeal have already pronounced themselves on the dispute, ruling that Kenya’s Judiciary must endorse orders issued by its foreign counterparts. The move has now stalled inspection of James Finlay farms, and by extension the cases in Scotland.

Inspect farms

On December 18, 2018 Mr McGowan ordered James Finlay to allow a team of lawyers and scientists to inspect farms and collect evidence to be used in the seven test cases.

The inspection was to be done no later than February, 2019.

After a team of experts arrived in Kenya for the inspection, James Finlay filed a case at the Employment and Labour Relations Court to stop the inspection.

The multinational argued that Kenya’s courts needed to adopt the inspection order and assist with enforcement before letting anyone into its four farms in Kericho and Bomet.

James Finlay also argued that experts who are foreign nationals must obtain work permits before being allowed to collect evidence in the tea plantations and factories.

University of Oxford professor of musculoskeletal health Alan J. Silman, Institute of Occupational Medicine’s Prof Richard Gravelling (ergonomist), international tea consultant Nigel Melican and orthopaedic surgeon Dr Margaret McQueen were to visit four tea estates and factories in Kericho.

They were joined by tea expert David Maina.

But the High Court issued orders stopping the inspection on account of James Finlay’s case just days before the probe could be conducted.

The seven claimants insist that their former employer has already submitted to the Scotland court’s authority to determine the dispute, hence James Finlay is legally bound to open its farms for inspection.

Affront on sovereignty

But the multinational claims that doing so would be an affront on Kenya’s sovereignty if local courts do not endorse the Scottish orders.

“The respondent (James Finlay) has accepted the jurisdiction of the Scottish court and not challenged the order by appeal or review wherefore it is only its acquiescence to entry upon its premises that is required for it to have complied therewith, which acquiescence is not a matter requiring any judicial aid as the premises are private property.”

“It is evident that the petition was contrived for the singular purpose of insulating the respondent from the consequences of its predetermined intention to breach the locus inspection orders by refusing to comply therewith,” the seven tea pickers argue in their petition at the Supreme Court.

Last week, Nakuru’s Labour Court dismissed a case filed by the seven tea pickers which sought orders compelling James Finlay to release specific information like medical records, which would be used as evidence in the Scotland cases.

Justice Hellen Wasilwa ruled that there is already a similar case filed by the former James Finlay workers pending determination at the Court of Appeal.

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