HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD

Factual and Procedural Background

This opinion arises from group proceedings concerning claims by employees of a company operating tea estates in Kenya ("the defenders"). The group members allege work-related musculoskeletal injuries sustained during their employment. The defenders are incorporated in Scotland but operate their business in Kenya. The proceedings have involved complex procedural issues, particularly regarding jurisdiction and the doctrine of forum non conveniens. The court conducted a preliminary proof hearing lasting six days to examine the defenders' preliminary pleas on jurisdiction and forum non conveniens. The defenders argue that Kenyan law and statutory schemes govern the claims, while the representative party contends that the Scottish courts have jurisdiction and are the appropriate forum.

Legal Issues Presented

1. Whether the group members and the defenders are bound by agreements governed by Kenyan law that prorogate exclusive jurisdiction to the Kenyan courts for the disputes in these proceedings.
2. Whether section 16 of the Kenyan Work Injury Benefits Act 2016 ("WIBA") ousts the jurisdiction of courts in claims arising from occupational accidents or diseases causing disablement or death in the course of work.
3. Whether a work-related injury claim filed outside the provisions of WIBA is a nullity.
4. Whether this court has jurisdiction.
5. Whether, if this court has jurisdiction, it is forum non conveniens.

Arguments of the Parties

Defenders' Arguments

• The defenders submit that the group members and defenders are bound by contracts governed by Kenyan law, incorporating collective bargaining agreements (CBAs) which apply WIBA and prorogate exclusive jurisdiction to Kenyan courts.
• Section 16 of WIBA establishes an exclusive statutory scheme for work injury claims, requiring initial resolution through the Director of Occupational Safety and Health (DOSH) and appeals to the Employment and Labour Relations Court (ELRC), thus ousting jurisdiction elsewhere.
• Allowing proceedings to continue in Scotland risks inconsistent judgments and offends principles of comity; Kenya is the natural and appropriate forum.
• The WIBA scheme is accessible, no-fault, and favourable to employees, operated at no cost to claimants, with compensation processed efficiently.
• The defenders contend that the Scottish court’s jurisdiction can be excluded by agreement under paragraph 6 of schedule 8 to the Civil Jurisdiction and Judgments Act 1982.
• Practical difficulties exist in litigating in Scotland, including language barriers, witness attendance, and lack of connection to Scotland beyond the defenders’ registration.

Representative Party's Arguments

• The representative party contends that WIBA is an administrative scheme offering alternative dispute resolution but does not oust the jurisdiction of Kenyan or foreign courts.
• The Scottish courts have jurisdiction by reason of the defenders’ domicile in Scotland and are the proper forum for the group members' claims.
• Legal aid, NGO support, and conditional fee arrangements are largely unavailable in Kenya, rendering access to justice there illusory for the group members.
• The WIBA process is complex and practically inaccessible to illiterate, poor claimants, with costs such as medical reports prohibitive.
• The CBAs relied upon by the defenders are not proven to be properly registered, binding on all group members, or current, and thus cannot exclude jurisdiction.
• The representative party disputes that the claims fall within the exclusive WIBA scheme, particularly as musculoskeletal injuries are not clearly scheduled under WIBA.
• Forum non conveniens should be rejected because the group members would not obtain substantial justice in Kenya.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed analysis of the relevant Kenyan law, statutory provisions, and case law, guided primarily by expert evidence. It examined the contractual arrangements between the parties, including employment contracts and CBAs, and their incorporation of WIBA and jurisdiction clauses. The court accepted that the defenders and group members are bound by contracts governed by Kenyan law, which incorporate terms referring to WIBA as the applicable legislation for industrial sickness claims.

However, the court found that the defenders failed to prove that the CBAs were properly registered with the Kenyan Employment and Labour Relations Court (ELRC) or that the group members who joined after 30 September 2022 were bound by any current CBA. Thus, the contractual prorogation of jurisdiction to Kenya via CBAs was not established conclusively.

The court gave significant weight to the Supreme Court of Kenya's decision in Law Society of Kenya v Attorney General, which held that section 16 of WIBA does not oust court jurisdiction but requires initial dispute resolution through DOSH, with appeals to the ELRC. The court preferred the evidence of Professor Muigai on this point over contrary opinions, concluding that WIBA establishes a mandatory administrative process prior to court proceedings for claims within its ambit.

The court noted a critical unresolved issue: whether musculoskeletal injuries such as those claimed by the group members, which are not clearly scheduled under WIBA, must be processed through WIBA or can be brought directly to court. The evidence was inconclusive, with some indication that DOSH had exercised discretion to accept such claims but no proof that this is a settled legal requirement. The court concluded that claims outside WIBA’s schedules may not be nullities and that an avenue for common law claims remains open in Kenya.

On jurisdiction, the court found that the defenders did not establish that this court's jurisdiction was excluded by agreement or statute. The defenders' plea of no jurisdiction was therefore repelled.

Regarding forum non conveniens, the court acknowledged that Kenya is the natural forum given the locus of harm, applicable law, and parties’ connections. The defenders discharged the initial onus to show Kenya is a more appropriate forum. However, the court accepted cogent evidence that the group members face substantial obstacles to accessing justice in Kenya, including poverty, illiteracy, lack of legal aid, absence of contingency fee arrangements, and insufficient legal resources for mass litigation. These factors create a real risk that the group members would not obtain substantial justice if required to litigate in Kenya.

Balancing these considerations, the court concluded that the plea of forum non conveniens should be rejected and that the Scottish courts are the appropriate forum for the group proceedings.

Holding and Implications

The court repelled the defenders' pleas of no jurisdiction and forum non conveniens.

As a result, the group proceedings and related petition processes will continue in the Scottish courts, with further procedural steps to be scheduled. The court’s decision means that the Scottish forum will hear the claims despite the defenders’ arguments about Kenyan jurisdiction and statutory schemes. The ruling does not set new precedent on the interpretation of Kenyan law but clarifies that, on the evidence presented, jurisdiction is not excluded and that the forum non conveniens doctrine does not require dismissal in favour of Kenyan courts given the risk of injustice there. Questions of expenses are reserved for future determination.