Scottish court orders James Finlay tea firm not to block class suits
Workers pick tea in a section of Finlay Kenya’s tea farm in Kericho County in 2019.
After almost 100 years of free running in Kenya, a Scottish court has ordered multinational tea firm James Finlay to drop its bid to block some Kenyan tea pickers from seeking injury compensations in Scotland.
The company faces a landmark multi-million-pound suit filed by 1,300 current and former workers demanding millions of shillings as compensation for neck and back injuries sustained during work.
Any victory by the James Finlay workers could lead to similar multi-billion shilling compensation claims against other tea multinationals farming in Kenya since the 1920s.
“This is about shining a light on what happens on these farms. Every company operating in this area needs to have a long hard look at its practices,” Patrick Mc Guire, the tea pickers’ lawyer, told the Guardian.
Scottish Judge Lord Braid has termed James Finley’s bid to stop the Scotland cases, through the Kenyan courts, as “vexatious and oppressive”.
On July 28, James Finlay applied for an interim injunction in Nairobi’s Employment and Labour Relations Court, through Managing Director Simon Hutchinson, seeking to stop its employees from prosecuting or proceeding “in any manner with the group proceedings” and from “initiating any further actions with regard to any work injury claims in Kenya pending the hearing of the Kenyan application”.
While the tea firm also wanted to argue that the Kenyan courts have jurisdiction to hear the cases, Lord Braid stated that the Aberdeen court had jurisdiction to listen to the Kenyan cases.
“It is for the courts of the place where an action has been brought, in this case, the Court of Session, to decide whether it has jurisdiction, not for a foreign court to determine that issue,” said the judge.
Lord Braid argued that had a Kenyan court issued such an injunction, “it would have the practical effect that a foreign court would have decided conclusively that this court did not have jurisdiction to hear claims on which it is currently seized, and of bringing the group proceedings to an end”.
For the last two years, the Aberdeen-registered company – which has grown tea in Kenya since 1925 – had tried to stop the class suit in Scotland, but after failing, it filed an injunction in Nairobi where it sought to block investigators from entering its Kericho farms.
Finally, it tried to stop the suing workers, through a Nairobi court, from pursuing compensation in Scotland.
The case against James Finley was first filed in February 2019 by seven tea pickers who are represented by the same British firm that earned British coal miners billions of pounds in compensation over loss of hearing. It has since attracted more current and former employees, each demanding Sh2 million as compensation.
The tea pickers claim that the multinational failed to provide safe working conditions, and as a result, they suffered severe neck and back injuries. The workers claim it was routine for James Finley to administer pain-killers on employees who complained of pains and then have them continue with tea picking.
The irony of the ongoing saga is that James Finlay’s 25,000-acre estate was once earmarked for compensation of 55 British soldiers who had been disabled or wounded during World War I. The soldiers were to grow flax under a cooperative – the British East African Disabled Officers' Colony (Beadoc). But the project failed, and by 1925, it had run into debts of about £62,200, leading to an auction that saw the land bought by Brooke Bond and James Finley for £3 an acre.
When the tea estates were started, one of the Beadoc members, W.H. Billington, had started a cheap labour recruitment agency, and a generation of tea pickers was born – mostly from the neighbouring Kisumu districts.
Now, the tea company has been accused of accelerating the aging of those workers through prolonged bending while carrying over 12 kilos of tea leaves on their backs.
The Scotland court has been told that James Finley managers in Kericho have “engaged in behaviour calculated to intimidate and threaten group members” and that “specific threats had been made to named workers that once details of those seeking compensation who were still working for James Finlay were known, the employment of those persons would be terminated”. The firm has denied the allegations.
In one cited case, a complainant claims that on March 31, he received a letter terminating his employment on account of joining the class action suit.
Reinstated
His lawyer told the Scottish court: “When he took issue with this, his employment was reinstated, but he was asked to return the letter, which he said he had lost. His home was subsequently broken into, and the letter was stolen.” James Finlay denied involvement in the theft.
The firm has also been accused of intimidating the claimants by listing their names in Kenyan newspapers and on various noticeboards on the company premises, which “could endanger their well-being and safety”.
The Scottish judge has now observed that “although the orders granted by the Kenyan court are directed against the group members, rather than this court ... the effect of the orders is that the group proceedings cannot be progressed for so long as the orders remain in force”.
It was argued that James Finlay only turned to the Kenyan courts “when it was achieving a lack of success before the Scottish courts”.
