Kenyan tea plantation workers claims are to be determined in Kenya, and not (for now) by the Court of Session in Scotland

The Inner House (Scotland’s Appeal Court) has held that claims brought by a group of Kenyan tea plantation workers are to be determined in Kenya in accordance with an established no fault compensation scheme for workplace injury and not (for now) by the Court of Session in Scotland.

For those not familiar with the case here is a whistlestop summary:

• Group Proceedings (Scottish Class Action equivalent) have been brought in Scotland by a number of tea plantation workers against their employer, James Findlay (Kenya) Limited (JFKL). The Group Members claim damages for musculo-skeletal injuries allegedly sustained during the course of their employment at a tea plantation in Kenya.


• The claim has been to the Inner House previously, where it was held that a decision in the lower court to sanction the “Group” was justified. This was despite minimal detail being provided about the Group and on the back of generic pleadings. Therefore, the early jurisprudence did not set a high hurdle for the certification of a Group by the court and signalled a facilitative approach to granting Group certification in Scotland (the court’s judgement can be accessed here).


• The claim is made against a Scottish-headquartered company. However, all of the claimants live and work in Kenya and are employees of JFKL. The Claimants say they chose to bring the claims in Scotland for reasons of access to legal representation and legal funding, along with allegations of witness/group member intimidation by JFKL in Kenya. JFKL sought and obtained an order (interdict) in Kenya preventing progress in the Scottish courts, having successfully argued in the local Courts that Kenya was the more appropriate jurisdiction.


• At first instance, JFKL argued that the Group Members had agreed to have any employment disputes determined in Kenya under Kenyan law by virtue of a collective bargaining agreement (CBA). The CBA was a standard form document which JFKL argued was part of the Group Members’ contracts of employment. JFKL also argued that Scotland was not the most appropriate forum. Lord Weir decided against JFKL on both points, and JFKL appealed to the Inner House of the Court of Session.

The Appeal was heard by the Lord President (Carloway), Lord Pentland and Lord Doherty. In a unanimous decision the Inner House has allowed JFKL’s appeal and sisted (paused) the Group Proceedings to allow the claims to be determined in accordance with the Kenyan Workplace Injury Benefits Act 2007 (WIBA). The Inner House came to this decision on the following grounds:

• JFKL’s argument that the choice of jurisdiction had been agreed in the CBA was dismissed. The wording which JFKL relied on was “The terms of the relevant national legislation shall apply”. The Inner House found that the wording meant that Kenyan law would apply but it did not mean that the Kenyan Courts were the only courts able to decide the dispute. The Scottish Courts could determine an issue under Kenyan law (with the assistance of Kenyan law experts).


• The forum non conveniens argument hinged upon whether the injuries complained of by the Group Members were included within the scope of WIBA, which was a matter for expert evidence. If musculo-skeletal injuries were found to fall within the remit of WIBA then, on Lord Weir’s analysis, the claims had to be determined on that basis. That is because the Kenyan WIBA created an exclusive dispute resolution process for dealing with certain type of workplace injuries which was intended to be a no-fault, easy-to-use procedure for Claimants.


• It was held that Lord Weir had been wrong to hold that musculo-skeletal injuries fell out with the ambit of WIBA. It was clear that WIBA was introduced, as Lord Weir accepted, to take claims out of the Kenyan courts and to create a no-fault compensation scheme which was delivered administratively.


• Evidence at first instance was provided by the administrative Director of WIBA that he had previously dealt with such injuries under the scheme. When interpreting the scope of WIBA the court placed significance on the long title of the legislation which stated that its purpose was: “to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment”. Against that background it was illogical to conclude that a commonplace type of injury was to be excluded from its scope.


• In finding that the injuries complained of in the Group Proceedings were within the ambit of WIBA the Court decided that “the law in Kenya is that the only way in which group members can obtain compensation for their musculo-skeletal injuries is by making a claim under the WIBA” (see para 63 of the Lord President’s decision).


• On the issue of forum non conveniens the Court therefore held that the JFKL had “discharged the initial onus on them to show that it was more appropriate to litigate these claims in Kenya”. This was supported by the earlier finding that WIBA covered the injuries complained of. The evidence before the Court was that WIBA was a well-established and fully operational legal scheme. It was therefore more appropriate for the Director to determine these claims in accordance with WIBA than to have the Scottish Courts look to interpret and apply the scheme.

Case Commentary

• The original Inner House decision in this case (which endorsed a relatively low hurdle to certification of Group proceedings) was one of the most significant jurisprudential developments in recent Scottish history.


• The Inner House’s decision was predicated on fast, cheap and efficient access to justice in Kenya for the Group Members. The judgment does, however, leave the door open for claimants to return to the Scottish Courts if the WIBA scheme is unable to deliver justice in the manner described.


• While the decision is significant in terms of this case, it turned on the fact that a redress scheme had been set up in Kenya exclusively to deal with workplace injuries of the type claimed in the case and it is, therefore, unlikely to be of more general application. The Inner House found that jurisdiction could be established in Scotland because JFKL is headquartered in Aberdeen. It also found that applying Kenyan law in the Scottish Courts was no impediment to the claim proceeding.


• The rationale of the Inner House is clear and principled, albeit that it runs contrary to the direction of travel this case had taken up to this point. The group members are based in Kenya and are bringing claims allegedly suffered in Kenya which are to be determined by Kenyan law pursuant to a scheme set up for this purpose – it feels right that they therefore be determined and processed in Kenya. The Court did not determine JFKL’s plea of forum non conveniens but recalled the Lord Ordinary’s first instance decision. From our review of the decision, it appears that the Inner House could have come to a decision with respect to JFKL’s forum non conveniens argument but chose not to do so.


• It will be interesting to see whether the Group Members appeal this decision to the UK Supreme Court. Any such appeal would, in our view, be relatively limited in wider application given that the decision will necessarily be limited to the impact of the Kenyan WIBA on the question of most appropriate forum.


• This decision will come as a blow to those representing the Group Members and any third-party funder, both in terms of costs recovery and any contingency or conditional fee arrangements they may have entered into with the Group Members.