Hugh Hall Campbell KC v James Finlay (Kenya) Limited
Nov 7, 2023
The court was asked to decide whether a group of workers, who live and work on tea plantations in Kenya, could bring an action for workplace injuries against their employer in the Scottish courts. Their employer, James Finlay (Kenya) Limited, is a Scottish registered company, but it operates its business in Kenya. The group seeks compensation for musculoskeletal injuries which they say they sustained whilst working on the plantations as a result of JFKL’s negligence.
The Court of Session has decided to pause (sist) the Scottish proceedings pending resolution of the claims by the statutory administrative process in Kenya.
In Kenya, claims for compensation for workplace injuries are dealt with under the Work Injury Benefits Act 2007. This provides a no-fault compensation scheme. Claims are determined administratively by the Director of Occupational Safety and Health. A worker can appeal a decision of the Director to the Kenyan Employment and Labour Relations Court.
JFKL argued that there was a clause in the group members’ employment contracts which stated that any claims for compensation for workplace injuries would be raised under the WIBA system. They said that this clause meant that the group had agreed to submit all such claims to the jurisdiction of the Kenyan courts. The Scottish courts therefore had no jurisdiction. In response, the group members argued that they could not bring their claims under WIBA because the scheme did not cover their type of injury.
JFKL argued that, alternatively, the Court of Session was forum non conveniens (not the appropriate forum for the dispute to be heard). They claimed that Kenya was the country with which the claims had the most real and substantial connection. Therefore, it was more appropriate for the claims to be determined there. The group members argued that they would be unable to achieve substantial justice in Kenya, and so the Scottish courts were the appropriate forum.
Both the Scottish and Kenyan courts had jurisdiction over JFKL. Under the Civil Jurisdiction and Judgments Act 1982, the parties could have agreed to take a dispute to a particular court, but they had not done so. The employment contracts only stipulated that Kenyan law was to apply to any claims for workplace injury, not that such claims had to be raised in the Kenyan courts. As such, the Court of Session had jurisdiction to hear the claims.
Forum non conveniens
In terms of Kenyan law, the group members’ injuries were covered by WIBA and therefore had to be dealt with under the WIBA scheme. This finding created a jurisdictional dilemma. The Court of Session had no experience of applying the scheme. In theory, the Court could only award the same amount of compensation as would be awarded by the Director in Kenya. These matters pointed towards Kenya being the appropriate forum.
The appropriate course of action was to pause the Scottish proceedings pending resolution of the claims under WIBA. The Court could not say that the WIBA system was unable to provide the group members with substantial justice. If the claims are not determined in accordance with WIBA, or if there is excessive delay in their determination, the court may require to recall the pause. For now, the claims should be progressed in Kenya under WIBA.
The opinion published on the Scottish Courts and Tribunals website is the only authoritative document.