Cross border complexities

A Scottish development in the Kenyan tea pickers’ group proceedings

We have written previously, about ongoing “group proceedings” in Scotland brought on behalf of more than a thousand Kenyan tea pickers. The claimants allege musculoskeletal injuries said to arise from unsafe working practices, conditions and systems of work at tea plantations over several decades. Litigation was raised in Scotland because that is where the defender company has its registered office.

There has been a development in this case on the issue of “forum non conveniens”. 

The judge at first instance refused the defender company’s application for the Scottish court to declare itself an inappropriate forum for the litigation because of concerns on whether the claimants could secure justice in Kenya. The Scottish appeal court has now held that this decision was wrong, or at least wrong at this stage. A link to the appeal judgment is here.

Pivotal to the appeal court’s decision is their analysis, contrary to the view of the judge at first instance, that the musculoskeletal injuries complained of fall within the ambit of the Kenyan Work Injury Benefits Act 2007. 

The position now is that the Scottish group proceedings are on hold. If the claimants wish to progress their claims, the Scottish appeal court’s position is that they should make claims in Kenya under the 2007 Act and, if seen fit, appeal decisions in that claim process to the Kenyan Employment and Labour Relations Court. 

The Scottish appeal court has not, though, made any determination on the question of appropriate forum so it is possible that the case may come before the Scottish court again if, for example, “substantial justice” is not, in fact, capable of being achieved in Kenya.

This case brings into sharp focus the complexities that can arise in cross-border litigation. The Scottish court has jurisdiction to hear these claims, but the applicable law is Kenyan. The claims are more closely connected to Kenya than Scotland so, all other things being equal, Kenya is the appropriate forum for resolution of the claims. Then the question of justice comes into play. The judge at first instance did not think that justice could readily be obtained in Kenya but that was on the basis that the 2007 Act did not apply to the claims. Now that the Scottish appeal court has determined that it does, the claimants are, at this stage, to seek justice in Kenya.