Two years ago a team of Scottish experts arrived in Kenya ready to inspect in depth four tea estates and factories owned by multinational tea producer James Finlay.
Scotland’s Sheriff Personal Injury Court officer Kenneth McGowan had in December 2018 ordered the inspections that were to help him determine a case filed by seven James Finlay workers seeking millions in compensation for injuries suffered on the job.
The inspections were to be done no later than February 2019. But for three years, James Finlay has blocked inspections in Kenya and Scotland, prolonging the dispute.
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.
Kenyan tea expert David Maina had also been drafted into the team of experts.
The experts were to visit Tileut-Chomogonday, Marinyn, Kaporet and Kapsongoi-Kitcumbe factories between February 22 and 23, 2019.
They were to be accompanied by Scottish lawyers Lauren Sutherland, Govel Evans, David Short Balfour and Ronald Onyango.
James Finlay had initially asked the Scottish court to postpone the inspections on account of safety, arguing that the January 15-16, 2019 terror attack on Nairobi’s Riverside Drive was a sign that the environment was not conducive. But the firm withdrew the motion.
After some push and pull between the parties’ lawyers, the February inspection dates were set.
A few days to the inspections, James Finlay filed a lawsuit challenging them, in a case that is now set to join the ranks of precedent-setters at the Supreme Court of Kenya, where one crucial question will have to be answered with finality: Do court orders from other countries have to be adopted by local courts before being implemented?
The battle between James Finlay and its workers has thrust into the limelight a grave gap in Kenya’s laws, as it now emerges that the Foreign Judgments (Reciprocal Enforcement) Orders Act, which provides for how to enforce decisions from courts in other countries, only provides for implementation of final decisions, but does not address how to enforce court orders from other countries during the course of hearing.
In the James Finlay case, the order was issued before the case could proceed to hearing, opening up debate on whether Kenya’s courts must adopt Mr McGowan’s instructions before they are enforced.
Attack on Kenya’s sovereignty
On May 21 this year the Court of Appeal agreed with the High Court that allowing implementation of Mr McGowan’s orders without involving local courts would amount to an attack on Kenya’s sovereignty.
Justices Roselyn Nambuye, Wanjiru Karanja and Sankale Ole Kantai ruled that the Scottish courts need to engage their Kenyan counterparts to ensure that enforcing the orders does not go against Kenya’s public policy.
“There is no provision in the Foreign Judgments (Reciprocal Enforcement) Act or the Civil Procedure Act on how an interlocutory order issued by a foreign State may be enforced in Kenya but a broad reading of the statutes would dictate that the foreign court, like the Scottish Court here, be moved to seek assistance of the Kenyan Judiciary and other Kenyan authorities for enforcing orders issued by such a Court,” the judges ruled.
“The Kenyan court whose assistance is sought would examine the case from the foreign court and ascertain whether proper judicial process has been followed in obtaining such orders, whether that process is consistent with Kenyan laws and policy and whether the experts were qualified under Kenyan law to undertake such exercise, amongst other considerations.”
Move to Supreme Court
The seven James Finlay workers have now issued a notice that they will move to the Supreme Court, arguing that their situation was not properly grasped by the first two courts that stopped the planned inspections.
The workers argue that James Finlay submitted itself to the jurisdiction of Scottish courts willingly and should not be allowed to hide behind Kenyan courts to prolong the case.
They add that the only thing required of James Finlay is to open up the four factories for inspection, a move that would be neither illegal nor in violation of Kenya’s public policy.
Local courts blocking the site visit, they say, could be viewed to be frustrating a case in Scotland, a move that violates cooperation between the two countries.
“The dispute between the parties as relates to the respondents’ claim against the applicant is being litigated before the Scottish Court to whose jurisdiction the parties have willingly submitted and thus constitutes lis alibi pendens, which prohibits any purported submission contemporaneously of the same before this court as a violation of international comity,” they argue.
“There is therefore no dispute between the parties over which this court has jurisdiction wherefore there is no legal basis upon which the application should be entertained by this court.”
The Supreme Court will now determine whether situations like that of the James Finlay workers, who are seeking to collect evidence for a lawsuit filed in another country, must involve local courts.
Gaps in law
But perhaps the case could be an eye-opener for Kenya’s lawmakers, who are tasked with closing any gaps arising in law, such as that present in the Foreign Judgments (Reciprocal Enforcement) Orders Act.
In Scotland, the James Finlay workers are each seeking Sh2 million for injuries they suffered over the years.
If successful, the case could spark more similar claims against James Finlay and other manufacturers in Kenya.
For more than 12 years, Lucas Onduso Omoke worked in James Finlay’s Kapsangoi estate in Kericho County, putting in up to 12 hours each day to ensure that he plucked the required minimum 34kg of tea.
When he joined James Finlay, Mr Omoke underwent a medical check-up at the multinational’s Cheptares Hospital that confirmed that he was healthy as a horse and up for the job.
With a large basket strapped to his shoulders, Mr Omoke could pluck up to 80kg of tea with his bare hands, which meant the picker would make the half-kilometre trip to the company’s weighing centre up to 10 times a day.
A basketful of tea leaves weighs between 12kg and 20kg.
Mr Omoke left James Finlay in 1995 to join the transport industry as a bus conductor, but returned to the tea processor two years later.
In 2006 he was transferred to the mechanical harvesting department, which meant collecting tea leaves using a machine.
Two people are required to lift and operate the tea-plucking machine, which weighs 28kg.
The noise and dust flung into the air by the machines make the process risky for one’s hearing and eyesight.
The 49-year-old Kericho resident visited Chepkondai Hospital three years ago, and doctors advised him not to do tasks that required bending or lifting heavy weights, effectively hinting that the tea picker was no longer able to do his job without severe health risks.
But without picking tea, Mr Omoke would be kicked out of James Finlay’s workers’ residences and lose a steady income as he inches closer to Kenya’s retirement age of 60.
Mr Omoke sued James Finlay alongside six colleagues – Elly Okongo Inganga, Vitalis Otieno Muga, Joice Mongere Omwamba, Christopher Omwamba Chuma, Getuna Masala Idinga and Rebecca Mongere Ochoi – who found themselves in a similar dilemma.
The Kenyans decided to pursue James Finlay for compensation in the multinational’s country of registration.
Several multinationals operating in Kenya have recently been sued in their countries of registration, or where their parent firms are domiciled.
The parent firm of Kenya’s largest avocado exporter, Kakuzi PLC, recently reached a Sh696 million settlement with at least 70 individuals who were attacked on the multinational’s farms in Murang’a County.
The individuals included neighbours and former workers and had sued in the United Kingdom.
In another case, 218 former Unilever workers have gone after the multinational in the UK, seeking millions for damages arising from the 2007-2008 post-election violence.
The Kenyans were working for Unilever when the contested December 2007 General Election results were announced, and had told their employer about attack threats in the course of the polls.
Workers not indigenous to the Kericho region were attacked on parts of Unilever land that were not fenced off, and want the multinational held responsible.
The former workers have asked the UK’s Supreme Court to overturn a decision by that country’s Court of Appeal that saved Unilever from paying millions in compensation.