By HSE East Africa | Friday Feb 22, 2019
A law firm whose massive win in a compensation case earned British coal miners billions of pounds has now set its eyes on a multinational tea firm in Kenya. Its test case against James Finlays is bound to change how foreign companies relate to their local workers and deal with occupational hazards.
Hugh James Solicitors has filed seven cases at the All-Scotland Sheriff Personal Injury Court representing past and present James Finlays (Kenya) Limited tea pickers who claim that the multinational’s failure to provide safe working conditions has affected their health.
In the case, Elly Okongo Inganga, Lucas Onduse Omoke, Vitalis Otieno Muga, Rebecca Okenyuri Nyakondo, Joyce Mongere Ochoi, Christopher Omwambia Chuma and Getunga Masela Indinga want Sh2 million each as compensation and for James Finlays to settle their legal bills.
While the Sh14 million demand may seem like a pittance for one of the world’s largest tea firms, the lawsuit, if successful, could set in motion an avalanche of claims and payouts; and not just by James Finlays, but several other consumer goods manufacturers in Kenya and beyond.
James Finlays was on December 18, 2018 ordered by Sheriff (a judge presiding over Scotland’s Personal Injury Court) K.J. McGowan sitting in Edinburgh to open up four of its plantations in Kenya to a team of experts who are expected to document its operations and submit a report.
James Finlays initially filed a motion in Scotland to delay the inspection, arguing that it was unsafe to travel around Kenya owing to the January 15-16 terror attack on Nairobi’s 14 Riverside Drive, but later withdrew its application.
The inspection was to be conducted on Tileut-Chomogonday factory, Marinyn, Kaporet and Kapsongoi-Kitcumbe factories between February 22 and 23.
The Scottish court ordered that the process must be done before the end of February. But the tea brewer in January filed a fresh case in the Employment and Labour Relations division of the Nairobi High Court seeking to delay the inspection. James Finlays argued that the seven claimants must ask Kenya’s courts to adopt the Scottish order before it can open its plantations for scrutiny by a team of foreign experts.
The team of experts has Dr Richard Gravelling (ergonomist), Dr Margaret McQueen (orthopaedic surgeon), Queen’s Counsel Lauren Sutherland, Hugh James Solicitors representative Gwen Evans, law firm Balfour+Manson LLP representative David Short and solicitor and barrister Ronald Onyango.
The experts will observe workers pick tea, both with bare hand and using machines, measure distances between plantations and weighing areas, confirm the weight of a full basket of tea leaves, the medical facilities available to James Finlays employees and assess harvesting equipment. The experts are also allowed to take photographs and videos of the processes, which will also be used as evidence in Scotland. The seven claimants and a translator are to accompany the inspection team.
James Finlays contends that opening its plantations to the team before endorsement of the Scottish order by Kenyan courts amounts to a violation of the Kenya Citizenship Act, as the tea picker will be allowing foreigners to operate on its plantations without work permits or special passes. The seven claimants, however, argue that only rulings and judgments must be put before a Kenyan court for authorisation before enforcement.
Court orders issued while cases are still in progress do not have to be ratified by Kenya’s Judiciary, the claimants say. The decision to be made by Justice Stephen Radido will likely be the focus of firms that have been sued in other countries over issues within Kenya, as it will set a precedent on how to enforce similar orders and directions.
The claimants add that the inspection is a duty they and James Finlays owe to Sheriff McGowan and not a dispute between a boss and his employee that should be determined by Kenya’s Employment and Labour Relations court.
In the case filed in Scotland, the claimants argue that James Finlays had them work from 6.30 am to 6 pm six days a week with no lunch or tea break. They add that they had to walk at least half a kilometre carrying baskets full of tea leaves from the plantations to weighing sites. Each basket, when full of tea leaves, weighs up to 20 kilos.
Lucas Omoke, one of the claimants, says in the Scotland court papers that he was employed as a tea picker in 1992. He left in 1995 to become a bus conductor but returned in 1997, again as a picker. Mr Omoke was moved to the mechanical tea harvesting department in 2006 where machines with blades and a pipe are used to pluck tea leaves. He has since retired. The former tea picker argues that he endures severe pain in his lower back, shoulders, knees and hips.
Mr Omoke was required to carry the equipment. The machine weighed 28 kg and was carried by two men. He worked beside noisy machinery. He was not given ear protection. He was also exposed to excessive dust and dust blows from the tea during harvesting.
“His neck clicks when he moves it. He has numbness in his fingers and weakness and pain in both wrists. He has pain in multiple joints,” the court documents say.
The seven claimants say James Finlays failed to look into the effects of working conditions, and they now fear being rendered unemployed and homeless.
Source: Daily Nation