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Cite as: [2023] CSOH 45, [2023] ScotCS CSOH_45, 2023 GWD 27-229, 2023 SLT 856

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OUTER HOUSE, COURT OF SESSION

[2023] CSOH 45

GP1/22

P305/22

P657/22

OPINION OF LORD WEIR

In the cause

HUGH HALL CAMPBELL KC

Representative party

against

JAMES FINLAY (KENYA) LIMITED

Defenders

Representative party: Smith KC, C Smith; Thompsons

Defenders: Lord Davidson of Glen Clova KC, A McKenzie KC, Boffey; CMS

11 July 2023

Introduction

[1]

This opinion is issued following a preliminary proof of 6 days' duration which

I heard at parties' invitation for consideration of the defenders' pleas on the issues of

jurisdiction and forum non conveniens.

[2]

For reasons which are well known the group proceedings have given rise to a

number of procedural complexities, a flavour of which may be derived from a previous note

I issued on 30 September 2022 and the opinion I issued in connection with an application

by the defenders to recall the interim interdict granted in the petition process P657/22 on

20 December 2022 ([2022] CSOH 94; [2022] CSOH 95). It was, however, a matter of

agreement between the parties that, so far as concerns those group members who joined

the group proceedings after 30 September 2022, and who were not therefore affected by the

injunction granted by the Employment and Labour Relations Court of Kenya ("the ELRC")

on 28 July 2022, an evidential hearing should be held in order, if possible, to resolve the

defenders' preliminary pleas.

[3]

The defenders' pleadings on both jurisdiction and forum non conveniens are adopted

in both petition processes and they called at the same time as the group proceedings for the

preliminary proof. For convenience, however, I shall refer to the parties hereafter as "the

representative party" and "the defenders".

The issues

[4]

The issues which I was asked to address were set out in a note prepared by the

defenders in advance of the procedural hearing on 3 February 2023 at which the preliminary

proof was appointed. I did not understand the representative party to disagree with the

defenders' articulation of those issues, which are:

Whether the group members and the defenders are bound by agreements

which are governed by Kenyan law and under which, properly construed under

Kenyan law, the exclusive jurisdiction of the Kenyan courts in respect of the disputes

articulated in these proceedings is prorogated;

Whether section 16 of the Kenyan Work Injury Benefits Act 2016 ("WIBA")

ousts the jurisdiction of courts in claims arising from an occupational accident

or disease causing disablement or death in the course of work;

Whether a work-related injury claim that has been filed outside the

provisions of the WIBA is a nullity;

Whether this court has jurisdiction; and

Whether, in the event this court has jurisdiction, it is forum non conveniens.

The pleadings

[5]

The parties' pleadings in the group proceedings on these matters are in relatively

short compass. In order to focus the areas of dispute it is convenient if I narrate their terms.

The defenders address jurisdiction in answer 2 in the following way:

"...Explained and averred that the defenders employ approximately 4,000 people.

They are employed on four farms within an estate. Choice of law is governed by

Regulation (EC) No, 864/2007 on the law applicable to non-contractual obligations

(`Rome II'). The applicable law in terms of article 4 of Rome II is Kenyan law. In

terms of article 15 of Rome II the applicable law applies to inter alios the basis and

extent of liability, any limitation of liability, the existence, nature and the assessment

of damage or the remedy claimed, and the rules of prescription and limitation. The

members of the group register (`the group members') and the defenders are bound

by agreements which are governed by Kenyan law and under which, properly

construed under Kenyan law, the exclusive jurisdiction of the Kenyan courts in

respect of the disputes articulated in these proceedings is prorogated. The Kenyan

Work Injury Benefits Act 2007 (`WIBA') is the applicable legislation in Kenya in

respect of claims made by employees relating to work-related injuries and diseases

contracted in the course of their employment. The preamble to WIBA provides that

it is: `An Act of Parliament to provide for compensation to employees for work

related injuries and diseases contracted in the course of their employment and for

connected purposes'. Section 16 of WIBA ousts the jurisdiction of the courts in

claims arising from an occupational accident or disease causing disablement or

death in the course of work at an initial stage. An employer will bear no liability

for compensation for any occupational accident or disease unless such action is

taken in accordance with the provisions of WIBA. Under those provisions only the

Director of Occupational Safety and Health has the jurisdiction to determine liability

of employers and compensation payable to employees arising from work-related

injuries. Section 16 thereof provides as follows: `16. No action shall lie by an employee

or any dependent of an employee for the recovery of damages in respect of any occupational

accident or disease resulting in the disablement or death of such employee against such

employee's employer, and no liability for compensation on the part of such employer shall

arise save under the provisions of this Act in respect of such disablement or death.' In terms

of the WIBA scheme, the Director of Occupational Safety and Health makes enquiries

and reaches a decision on a claim. Reference is made to section 23 of WIBA. The

decision of the Director can subsequently be challenged in the Kenyan Industrial

Court. Reference is made to section 52 of WIBA. The Industrial Court has the same

status as the Kenyan High Court. On 3 December 2019, the Kenyan Supreme Court

held that a workers compensation claim for work related injury must first proceed

via WIBA. The Kenyan Supreme Court held that the WIBA scheme did not breach

the constitution of Kenya. A judgment that is delivered by a Court in respect of a

work-related injury claim that has been filed outside the provisions of WIBA has

been held by the Kenyan courts to be a nullity. Accordingly, this Court does not

have jurisdiction. Esto this Court has jurisdiction (which is denied) forum non

conveniens. Allowing these proceedings to continue in Scotland risks inconsistent

judgments arising between this Court and the Supreme Court of Kenya on a matter

of Kenyan law. This is undesirable. It also offends against the principle of

preserving comity between sovereign nations. The appropriate forum for hearing

this case is Kenya..."

[6]

The defenders' position on forum non conveniens is developed in answer 3 in the

following way:

"...In Kenya the case will be more suitably tried, taking into account the interests

of all of the parties and the ends of justice. Other than the domicile of the defenders

every material aspect of the case is Kenyan. Kenyan law applies to all aspects of the

group members' claims, including without limitation liability, quantum and time

bar. The domicile of the defenders is historic. The defenders were incorporated

as a Scottish company in 1925. The defenders' business, in so far as relevant to

this litigation, is in Kenya. The defenders regularly submit to the jurisdiction of the

Kenyan courts. The defenders have submitted to the Kenyan courts in other claims

brought by its employees and former employees. All of the group members reside

in Kenya. All the tea estates are based in Kenya. The work conditions in so far as

relevant requiring to be considered were Kenyan. All material investigations will

be carried out in Kenya. The place of the alleged harm is in Kenya. The group

members and other witnesses in Kenya will have no right to give evidence remotely

from Kenya unless the Kenyan authorities give permission for that to happen.

Reference is made to Agbabiaka (evidence from abroad: Nare guidance

[2021] UKUT 286 (IAC)) and to the position of the Secretary of State for Foreign,

Commonwealth and Development Affairs, as recorded in the decision of the Upper

Tribunal in that case. The action is not one which raises a straightforward issue

of ascertaining and applying a foreign law rule of delict/tort. There are statutory

provisions in Kenya overriding any non-statutory rules that might otherwise have

been relevant and the claims and applicable Kenyan law require to be understood

in the context of the Kenyan industrial relations system. Separatim WIBA provides

a compulsory statutory scheme for compensation for work related injury...So far

as the defenders are aware, no application has been made by the [group members]

under WIBA...It is inequitable that the representative party can seek to ignore

the provisions of Kenyan law and seek to oust the jurisdiction of the compulsory

statutory scheme. The cause is likely to raise issues which require an understanding

of Kenyan culture, behaviour and custom. Such matters are outwith Scottish judicial

knowledge. The cause is also likely to raise issues regarding the topography and

environmental factors of the Kenyan landscape on which the tea estates are based.

Comity, together with the principle of territorial sovereignty means a judicial site

visit by the Lord Ordinary is unlikely to be possible. Separately, [both parties] are

likely to incur additional costs and prejudice in defending and pursuing this cause

in Scotland compared to Kenya. All of the witnesses in the cause are located in

Kenya. The majority of the group members do not speak English. Many of the

group members cannot read or write. Most of the group members do not have

passports. Most of the group members have never travelled internationally before.

The taking of evidence of witnesses in the cause is likely to take substantially longer

than would be the case in Kenya, because this Court, and the professionals practising

before it, do not speak the same language as the witnesses appearing before it. More

than one language interpreter may be required, as several different dialects are

spoken by the witnesses. Substantial travel, accommodation, subsistence, visa,

expert and interpreter costs are likely to be incurred. Expert evidence will be

required on what Kenyan law is in order for it to be applied by the Scottish judge.

A Kenyan judge can apply Kenyan law directly, without the need for expert

evidence. A cost-effective forum (WIBA) for the resolution of any disputes the group

members have with the defenders is available in Kenya. The Kenyan legal system

offers the group members an effective route to the prosecution of any claims they

may have against the defenders. For the avoidance of doubt, the existence of WIBA

goes to (i) the defenders' plea of no jurisdiction, as well and (ii) the defenders' plea

of forum non conveniens. Access to justice is a right guaranteed by the Constitution

of the Republic of Kenya. The Kenyan legal system adopts a proactive approach to

access to justice. Multi-claimant or representative suits (akin to group proceedings)

are available in Kenya. The natural forum for this cause is Kenya. As Kenyan case

law shows, Kenyan employees of plantation owners in Kenya can and do succeed

in claims against their employers in respect of injuries sustained as a result of their

employment. In any event, resolution of the group members' claims under WIBA

does not require a lawyer. It is free to the group member to pursue."

[7]

In response to the defenders' averments in answer 2 concerning jurisdiction the

representative party avers that WIBA is an administrative scheme rather than a judicial

scheme. It offers an alternative means of dispute resolution. The intention and purpose

of section 16 of WIBA is neither to limit access to courts nor to oust the jurisdiction of the

Kenyan Court or any other foreign court to determine work-related injury claims. On

forum non conveniens the representative party, in condescendence 3, avers as follows:

"Explained and averred that the group members' claims against the defenders are

brought as of right in the Scottish Courts as the defenders are domiciled in Scotland.

Consequently, the Scottish Court is the proper and appropriate forum for the group

members to bring a claim against the defenders. The Scottish Court is the only

court in which the group members' cases can be suitably tried for the interests of the

parties and the ends of justice. There is no prospect of the group members obtaining

substantial justice before the Kenyan courts. There is no analogous provision for

group proceedings in Kenya to those that exist under Scots law. As a consequence,

if the group members are prevented from pursuing their claims in Scotland, they

would require to advance unitary claims before the Kenyan courts. Such a process

is likely to be unwieldy and subject to delay. The group members are very poor

and cannot afford to pay privately to pursue their claims. There is no practical and

effective provision for legal aid in Kenya. A Legal Aid Act was enacted in Kenya

in 2016, however it remains embryonic and underdeveloped. It receives limited

state funding. The scheme does not cover litigation costs such as those associated

with the instruction of skilled witnesses. Further, contrary to what is averred by

the defenders, there is no prospect that the group members are able to acquire

assistance from an NGO to advance their claims before the Kenyan courts. The

size and complexity of the group members' cases dwarves the financial resources

available to NGOs in Kenya, which rely solely on funding from private backers.

The services provided by NGOs to users are generally provided on a pro bono basis

by a pool of volunteer legal professionals. The size and complexity of the group

members' cases means that it is highly unlikely that an NGO would be able to

[find] any legal professional in Kenya who would be prepared to advance the group

members' cases on a pro bono basis. There is no provision under Kenyan law for

conditional fee arrangements, unlike in Scotland where funding is available to the

group members. Further, there is no costs protection for claimants in Kenya, unlike

in Scotland where the group members have the full protection of the newly enacted

Qualified One Way Cost Shifting provisions. For [these reasons] there is no prospect

that the group members would obtain substantial justice in Kenya."

[8]

Addressing specifically the defenders' averments about the efficacy of the WIBA

scheme of compensation, the representative party avers:

"...Whilst WIBA does not require the instruction of a lawyer, in practical terms it

is impossible for individuals of no education, illiterate and geographically removed

from any place when examination and inquiry might take place to present a claim.

The process is complex, indeed troubling the Supreme Court in Kenya and

practitioners on a daily basis. Challenge of any initial assessment by the Director is

equally complicated. The costs of doing so are prohibitive, as the cost of a medical

report is at least one month's salary for most claimants. Most are uneducated. Many

are illiterate. The Act is of uncertain meaning and practical application. Without a

lawyer - and even with a lawyer - it is virtually impossible to navigate a claim. The

damages under WIBA are lower than common law damages, being restricted in

amount. Claims not listed in the Schedules are not covered by the system. The

contents of the Schedules to WIBA are calculated inter alia to allow parties to know

what claims are competent under WIBA, and to allow the insurance industry to

assess the level of risk. Without that certainty, the insurance industry will be

incapable of assessing the risk reasonably. Claims over a year old are not competent.

Without claims proceeding in Scotland, it is highly likely that they will not proceed

at all. Without doubt, even if the occasional claimant could proceed in Kenya, vast

numbers from the current cohort would simply require to give up."

The evidence

[9]

During the defenders' proof I heard evidence from (i) Mr Simeon Hutchinson,

(ii) Mr Daniel Kirui, (iii) Mr Reuben Langat, (iv) Professor Githu Muigai SC, and

(v) Dr Musa Nyandusi. For the representative party I heard evidence from (i) Ms Anne Ireri,

(ii) Mr Eric Theuri, and (iii) Mr Wilfred Nderitu SC. To the extent that they each provided

signed witness statements, or provided reports, in advance of the proof the witnesses

adopted the evidence contained in those documents as comprising substantially all of their

evidence-in-chief.

Defenders' proof

Simeon Hutchinson

[10]

Mr Hutchinson, 60, is currently the defenders' managing director. In his signed

witness statement Mr Hutchinson described the history of the defenders' tea-growing

operations in Kenya and their place in the corporate structure of the Swire Group. The

defenders were originally set up in 1925 under the name The African Highlands Produce

Company Limited. Apart from a historical registered office address in Aberdeen the

defenders had no other connection with Scotland. There was no particular reason why

the defenders continued to be registered in Scotland.

[11]

The defenders are currently members of the Kenya Tea Growers Association ("the

KTGA"). The KTGA is responsible for negotiating on behalf of its members, including

the defenders, the collective bargaining agreements ("CBAs") for the time being in force

between the Kenya Plantation and Agricultural Workers Union ("the Union"). The Union

is the trade union organisation which represents the defenders' employees. There is a

recognition agreement ("the Recognition Agreement") which lays out how the KTGA and

the Union engage with each other. Asked in evidence whether the CBAs had been correctly

registered with the industrial court, his response was that he believed them to have been.

[12]

The defenders operated as a branch in Kenya and were subject to Kenyan law,

including the provisions of the Work Injury Benefits Act 2007 ("WIBA") and the jurisdiction

of the Kenyan courts. WIBA was very specific on how injuries at work should be reported

by both employees and the employer. WIBA offered a compensation system which was

favourable to employees as the process was undertaken by the defenders at no cost to

the employee. The defenders carried the requisite insurance cover for WIBA claims.

Mr Hutchinson had no reason to think that the defenders would be unwilling to pay out

on the claims of injured workers.

[13]

Mr Hutchinson's evidence was that there would be practical difficulties for the

defenders if the group proceedings continued in Scotland. Those difficulties arose from the

requirement for current employees to absent themselves while giving evidence in Scotland,

the need to recruit cover for that situation, and the court's likely lack of understanding of

Kenyan culture, the role of domestic physical labour within that culture, and how that might

impact individual claims.

Daniel Kirui

[14]

Mr Kirui, 57, is the HR director of the defenders, reporting directly to the managing

director. His signed witness statement addressed his role in the company management

structure which included a company medical officer who dealt with the running of medical

services within the defenders. Those services included clinical services for individual

patients, conducting medical examinations for the purposes of WIBA claims, overseeing

occupational health matters and wellness programmes.

[15]

The defenders have around 4,800 employees, the majority of whom live on the

defenders' estate or the surrounding area. The defenders have established 12 primary

schools, 2 secondary schools and 31 early childhood development centres within their estate,

and pay for all costs associated with those schools, save for teachers employed by the

Kenyan government. The defenders also provide free healthcare through 13 dispensaries

across the estate.

[16]

Mr Kirui described how the defenders operated the compensation system

established under WIBA. He explained that it was a system which had been introduced

against a background of "ambulance-chasing" and a streamlining of the Kenyan labour

laws in 2007 of which WIBA was part. Mr Kirui considered the process to be very clear,

transparent, and favourable towards the employee. Every accident at work has now to be

reported to the Directorate of Occupational Safety and Health Services ("DOSH"). It was

now the position that all injuries occurring at the workplace were subject to compensation.

[17]

Addressing the contractual matrix between the KTGA and the Union, Mr Kirui

explained that all of the defenders' employees are what is termed "unionisable" because

they are subject to both the Recognition Agreement and the current CBA by virtue of the

latter being referenced in the employee contracts (a sample of which was lodged at JB3201).

There was a statutory obligation on the defenders to explain to employees the terms of the

contract of employment. His evidence was that around 80% of the defenders' tea estate

employees were illiterate. However, although the master version was in English it would

be translated, where necessary, into the employees' native language. For example, if they

wished a native Kiswahili version to sign, that would be facilitated. Union shop stewards

had a role in that process too.

[18]

Asked how the most recent example of a CBA in the joint bundle could have been

dated 1 November 2021 when its stated duration was 1 January 2020 to 31 December 2021,

Mr Kirui referenced a practice in the defenders' "set-up" whereby the preceding CBA would

remain in effect until the subsequent one was signed off. He acknowledged that the CBA

contained no definition of the term "industrial sickness" where it appeared in clause 12c

(clause 12c stating that "In the case of industrial sickness it is agreed that the terms of WIBA

shall apply").

Reuben Langat

[19]

Mr Langat, 47, is the defenders' environmental health and safety and sustainability

officer. Senior counsel for the representative party took objection, at the outset of his

evidence, to certain aspects of the witness's signed statement which dealt with matters of

background. Although the passages concerned were admitted subject to relevancy and

competency the objection was not renewed at the stage of submissions and the material

covered was not material to any decision I had to reach. Mr Langat's signed witness

statement covered primarily his involvement in the administration and operation of the

WIBA system of compensation within the defenders' organisation (and for whose oversight

he is responsible). That evidence was plainly relevant.

[20]

It would be helpful, at this stage, to set out the process which the witness described.

Thus, employees are eligible for compensation if they are off work for three or more days

due to a work-related injury. The defenders must notify DOSH, by completion of a DOSH 1

form, within 7 days of receiving notice of an occupational accident, or 14 days in the case of

an occupational disease. DOSH will transmit a form acknowledging receipt of the

notification ("DOSH 3"). The defenders will then initiate the process of compensation by

returning part 2 of DOSH 1, following its completion by the designated medical practitioner

("DMP") who examined the employee upon their return to work. It is a matter for the DMP

to assess whether the presenting injury is the result of an accident at work.

[21]

The first schedule to WIBA guides the DMP as to the degree of disablement which is

expressed in a percentage (loss of life, a limb or sight being 100% disablement) which is then

applied to the monthly earnings of the employee over a period of 96 months. The return of

part 2 of DOSH 1 will generate a further form ("DOSH 4") which is sent to the defenders

with the computed compensation payment. The DOSH 4 is forwarded to the defenders'

insurers such that payment of the sum brought out can be facilitated.

[22]

If the employee is dissatisfied with the proposed compensation there is an appeal

process. The employee can either have another doctor of their own choosing assess the

injuries and their calculation, or DOSH may constitute a panel of doctors as a review team

in Nairobi. The assessment of the DOSH panel is considered to be final. If the employee

remains dissatisfied with the outcome they may take an appeal to the ELRC. The ELRC

appeal may only be taken once the DOSH process has been exhausted.

[23]

Mr Langat explained that because the whole process was so simple - and working

well - there was no need for a lawyer. He rejected as being inconsistent with his own

experience any suggestion that the WIBA system of compensation was overly complicated

and inaccessible to employees. He referenced three anonymised WIBA claims which

resulted in compensation claims being met in periods measurable in months. He gave

evidence that employee appeal rights were explained and that transport and subsistence

costs were available to employees who wished to appeal to the medical panel convened by

DOSH in Nairobi. He claimed to be aware of cases of RSI which had been compensated

under WIBA.

[24]

The witness had never encountered either a lawyer or the Union involved in the

WIBA process. Nor, until now, had he any experience of an employee complaining of a

work-related injury after leaving the defenders' employment.

[25]

In cross-examination Mr Langat's evidence was that the defenders processed on

average ten WIBA claims per year. He accepted that, within the DOSH process, the initial

medical assessment would usually be by a doctor employed by the defenders, with the

relevant form being completed by the company medical officer. Mr Langat appeared to

dispute that most of the defenders' employees were illiterate. In contrast to the evidence

of Mr Kirui, he thought around 80% could read and write. There were, in any event, ample

sources of advice for employees going through the WIBA process, including the DOSH

office itself. The process was fair and easy to follow, even for someone who was illiterate.

Lawyers were not required. Mr Langat did accept that an employee who sought a second

medical opinion would likely have to pay for it themselves.

Dr Musa Nyandusi Lwegado

[26]

Dr Nyandusi, 51, is the Director of Occupational Safety and Health for the Republic

of Kenya and serves as the head of DOSH. DOSH is a department within the Ministry

of Labour and Social Protection. DOSH is responsible for ensuring compliance with the

Occupational Safety and Health Act 2007 ("OSHA") and for the administration of work

injury claims under WIBA. OSHA and WIBA are complimentary, the former containing

preventive provisions and the latter being concerned with compensation - where those

provisions have failed. They were enacted to address perceived gaps in the existing

workman's compensation legislation. Following the enactment of WIBA certain of its

provisions were challenged as being unconstitutional in respect that they appeared to

restrict access to the courts. The High Court initially agreed but no order was made

suspending the processing of claims under WIBA, which continued until greater clarity

was lent to the position by the Supreme Court in Law Society of Kenya v Attorney General

and another [2019] eKLR (Petition no 4 of 2019) whose judgment in the matter was issued

on 3 December 2019.

[27]

All WIBA claims now require to be presented to DOSH and are processed there.

For that reason Dr Nyandusi explained that it was not advisable for claimants to rush to

court as their first source of recourse. WIBA provides for internal dispute resolution.

Dr Nyandusi described the WIBA process in terms which accorded with the evidence of

Mr Kirui. He added that there was a DOSH office in Kericho, about 2 kilometres from the

defenders' tea estate. Dr Nyandusi was unaware of any process in Kenya other than WIBA

for making a claim for injury sustained at work.

[28]

Under the WIBA system it was open to both the employer and a disappointed

claimant to appoint a doctor of their own choice (at their own cost) to undertake a

re-assessment but most of these assessments, in the witness's experience, were done in

government hospitals, in which case they were state funded. The resulting assessments,

if different from the initial assessment of the DMP, would be considered, and a final report

produced, by a panel of usually three of DOSH's medical practitioners. If matters remained

unresolved it was open to the aggrieved party to appeal to the ELRC. Dr Nyandusi

considered that WIBA offered a fair process which was an improvement on what went

before.

[29]

The services of DOSH, including examinations by the panel of doctors within DOSH,

are free to the claimant. Dr Nyandusi's evidence was that claimants did not need to be able

to read and write to seek compensation. The manner of computation was prescribed in

WIBA. There was no necessity for either a lawyer or Union representative while the process

was administered within DOSH (although there was no prohibition on representation

either).

[30]

Dr Nyandusi explained the approach of DOSH to WIBA coverage. He described

a holistic approach in which "one should not dwell too much on the word `accident' and

what it means, as occupational disease was also compensable under WIBA." A chronic

back injury was the same as a chronic back disease. What was required was a relationship

between the injury claim and exposure to work. Schedule 1 of WIBA provided the basic

framework for common injuries in the workplace. The schedule was not exhaustive, nor

could it be. Many injuries and diseases might fall outwith the schedule. DOSH often

invoked paragraph G(c) of schedule 1, whereby "the Director shall prescribe the

compensation criteria for musculoskeletal disorders and occupational injuries not

elsewhere covered". Thus, DOSH had received claims for repetitive back strain injuries

from nurses working in ICU, as well as other musculoskeletal injuries. Occupational injury

and disease was causal and relational and still had to be linked with the work being

undertaken for there to be a claim under WIBA. Work injury assessment for chronic and

repetitive injuries was common in DOSH clinics. That said, Dr Nyandusi acknowledged in

evidence that back pain from a potentially work-related cause was not listed in schedule 1,

and that to include degenerative types of disease would require there to be a process of

consultation and amendment to the schedule because of potentially difficult issues of

causation.

[31]

Although WIBA did not explicitly provide a discretion for DOSH to accept a claim

which is lodged more than 12 months after an accident, the words "may not be considered"

in section 26(2) afforded a window of discretion which had been adopted in practice. A

party aggrieved by the exercise of such discretion would have a right to take an appeal to

the ELRC under part VIII of WIBA.

[32]

On the matter of appeals Dr Nyandusi provided statistical information from 2018/19

to the effect that, while the number of claims processed by DOSH was measurable in

thousands, there had been 11 appeals since 2018/2019. Two of those appeals had been

at the instance of employers and nine were appeals by employees. In cross-examination

Dr Nyandusi acknowledged that there were two potential explanations for these results;

(i) people were generally content with the awards, and (ii) absent legal representation in

the original presentation of a claim people were unaware of their right to appeal - or the

basis upon which they could do so.

[33]

Finally, asked about the capacity of DOSH to handle a very substantial influx

of claims, Dr Nyandusi provided a recent example in which over a 2 to 3 week period,

and through what he called a special programme, the department had processed some

501 National Police Service claims arising from injuries which were said to have caused

disability. The majority of the claims were said to have come from 2019 but some dated

from 2010.

Professor Githu Muigai SC

[34]

Professor Muigai is a professor of law at the University of Nairobi. He is both a

senior counsel and senior partner of the law firm of Mohammed Muigai LLP. Between

August 2011 and February 2018 he served as Attorney General of the Republic of Kenya.

Professor Muigai prepared, for the purposes of the proof, a report dated 3 March 2023, and

a supplementary report dated 16 March 2023. He also provided, by email, further comments

on the views expressed by Dr Willy Mutunga, an expert witness who had been due to give

evidence in the representative party's proof, on the matter of limitation. In evidence

Professor Muigai adopted the contents of each of these reports and adhered to the evidence

contained in them.

[35]

In the first of those reports Professor Muigai was charged with addressing the

following issues, namely (i) whether, under Kenyan law the claims brought by the

representative party in the group proceedings are subject to the exclusive jurisdiction of

the Kenyan courts; (ii) whether, and how readily, the justice system of the Republic of

Kenya allows claims of the type being pursued in the group proceedings to be brought and

determined in Kenya. Professor Muigai then offered certain comments on Dr Mutunga's

expert report from 10 August 2022. I will rehearse his evidence in relation to each issue in

turn.

(i)

Whether, under Kenyan law the claims brought by the representative party in

the group proceedings are subject to the exclusive jurisdiction of the Kenyan courts:

[36]

For the purposes of addressing the first issue Professor Muigai provided a helpful

overview of the statutory sources of labour and employment law in Kenya. He described

how employment is governed by a combination of the 2010 Constitution of the Republic of

Kenya, a reforming legislative framework in which the Employment Act 2007, the Labour

Relations Act 2007, OSHA and WIBA complimented each other, the general law of contract

and principles of the common law. Under the Kenyan legislative framework, statutory

provisions provide the minimum terms of employment and override any contractual

terms unless the contract offers better terms of employment to the employee.

[37]

The legislative and policy intent of the Kenyan Parliament in enacting WIBA,

in particular, was to create a comprehensive and modern framework for providing

compensation to employees who suffer work-related injuries. It marked a deliberate shift

towards an administrative type of process as a means of addressing difficulties said to have

arisen through the activities of "ambulance-chasing" lawyers.

[38]

Professor Muigai also reviewed both the Recognition Agreement negotiated

between the KTGA and the Union dated 23 November 2000 and the CBA entered into

between the KTGA (Kericho/Sotik/Nandi branches) and the Union for 1 January 2020 to

31 December 2021 together with other historic CBAs between the parties.

[39]

Since the defenders place reliance on the terms and effect of the CBAs for the

time being concluded between the KTGA and the Union it is necessary to record

Professor Muigai's description of the process by which, in the field of Kenyan industrial

relations, both recognition agreements and CBAs are negotiated between employers'

organisations and trade unions. To that end it is sufficient to notice that a recognition

agreement provides the mechanism by which a trade union is authorised to negotiate

terms and conditions of employment on behalf of groups of workers through a process

of collective bargaining (Kenya Plantation and Agricultural Workers Union v Carnation Plants

Ltd [2013] eKLR Clause 828 of 2011). Recognition of a trade union by a group of employers

gives rise to a statutory obligation, in terms of section 57(1) of the Labour Relations Act 2007,

to conclude a CBA with the recognised union setting out the terms and conditions of service

for all unionisable employees covered by a recognition agreement. Once a CBA has been

executed section 59 of the Labour Relations Act 2007 establishes its binding nature as

between the parties. More specifically, a CBA binds for the period of its duration all

parties to it, including (a) the unionisable employees employed by the employer, group

of employers or members of the employers' organisation party to the CBA and (b) the

employers who are or become members of an organisation party to the CBA to the extent

that it relates to their employees.

[40]

A CBA binds the parties who were members at its commencement and their

members, even if the members subsequently resign from the organisations who are party

to it. Moreover, the terms of a CBA agreement must be incorporated into every contract of

employment of every employee covered by it (Industrial Relations Act 2007, section 59(3)).

However, the validity and legitimacy of a CBA can only take effect upon its successful

registration by the ELRC (Industrial Relations Act 2007, section 59(5); Nairobi City County

Government v Kenya County Government Workers Union and another [2019] eKLR).

[41]

Turning to the circumstances of the instant case, Professor Muigai noted that the

parties' dispute arises from claims on the part of group members who seek compensation

from the defenders for loss, injury and damage sustained in the course of their employment

on the defenders' tea estates. Such a dispute falls to be resolved according to the provisions

of the CBA which specifically deal with the handling of sickness and illness claims by

employees.

[42]

Professor Muigai observed that the CBA does not specify the mode of dispute

resolution. In that situation he explained that, according to Kenyan law, the provisions

of part B of the Kenyan Industrial Relations Charter would be implied into the CBA such

that conciliation and voluntary arbitration would be the first port of call in resolving any

dispute (Teachers Service Commission v Kenya National Union of Teachers and another [2019]

eKLR; Kenya Game Hunting and Safari Workers Union v Lewa Wildlife Conservancy Ltd [2014]

eKLR). Absent resolution by such means clause 12c of the CBA provides a specific

mechanism for resolving disputes arising from industrial sickness. It states: "...In the case

of industrial sickness, it is agreed that the terms of the Work Injury Benefits Act shall apply"

By recognising and importing the terms of WIBA into the CBA the parties (ie the defenders

and the group members) were contractually limited to seeking recourse under WIBA.

[43]

Professor Muigai drew attention to the terms of section 16 of WIBA whereby no

action shall lie by an employee for recovery of damages in respect of occupational accident

or disease resulting in disablement of such employee against their employer and no liability

for compensation on the part of the employer shall arise save under the provisions of WIBA.

The claims of group members appeared premised on the occurrence of occupational disease.

Section 38(1) of WIBA provides that an employee is entitled to compensation if the employee

(a) contracts a disease specified in the second schedule that arose out of and in the course of

the employee's employment, or (b) contracts any other disease that arose out of and in the

course of the employee's employment. Section 38(2) further provides that an employee who

contracts a disease in the circumstances contemplated in subsection (1) is deemed to have

contracted an occupational disease and is entitled to compensation as if the disablement

caused by the disease had been caused by an accident. Professor Muigai's evidence was that

the combined effect of sections 16 and 38 of WIBA is that where an occupational disease is

alleged to have been contracted from, and in the course of, a person's employment no claim

shall arise save as provided for under WIBA. That process involves initial consideration by

DOSH with ultimate recourse, in terms of section 52 of WIBA, to the appellate jurisdiction of

the ELRC.

[44]

Lest there be any doubt as to the exclusivity of WIBA, in Law Society of Kenya v

Attorney General and another, supra, the Supreme Court rejected a challenge by the Law

Society to the effect that WIBA, in purporting to oust the jurisdiction of the courts,

compromised the rights of employees to a fair adjudication of their claims and was thereby

unconstitutional. That authoritative ruling has since been recognised by a slew of decisions

in the ELRC (eg Heritage Insurance Company Ltd v David Fikiri Joshua and another [2021] eKLR

No 21/2019; Magot Freight Services Ltd and others v Samson Mwakenda Mangale [2021] eKLR

No 28/2020; Austin Oduor Odira v Kenya Sweets Ltd and another [2021] eKLR No 74/2021;

Perfect Scan Ltd v Harrison Kahindi Said [2021] eKLR No 18/2020; West Kenya Sugar Ltd v Tito

Lucheli Tangale [2021] eKLR No 4/2019; Manuchar Kenya Ltd v Dennis Odhiambo Olwete [2020]

eKLR No 5/2019).

[45]

For completeness, Professor Muigai explained that, in terms of section 87(1) of the

Employment Act 2007, and once the remedies in WIBA have been exhausted, any dispute

touching on injury of an employee can only be referred to the ELRC. In the instant case,

however, the claims of group members relate to the recovery of damages in respect of

occupational accident or disease. Section 10 of WIBA provides the mechanism for recourse.

Kenyan law, in any event, requires that an aggrieved party exhaust all remedies available

under contract or statute before proceeding to court (Labour Relations Act 2007,

sections 52, 73; Geoffrey Muthinja and another v Samuel Muguna Henry and others [2015] eKLR).

Either way, the group members should in the first instance have applied for compensation

under WIBA before approaching any court.

[46]

Professor Muigai rejected the notion, propagated by both Dr Mutunga and

Mr Nderitu (who did give evidence), that a common law claim could be advanced in the

ELRC, in exercise of its original jurisdiction under section 12 of the Industrial Court Act 2011

("the 2011 Act"), without recourse to the compensation mechanism established under WIBA.

His analysis as to the exclusivity of WIBA was consistent with the wording of section 12 of

the 2011 Act. He also rejected the proposition that a claimant could allow the 12 month

limitation period under section 26 of WIBA to elapse and then, within the 3 year time limit

prescribed by section 4(2) of the Kenyan Limitation of Actions Act, raise proceedings in

the ELRC. As I understood it, Professor Muigai's position was that the general limitation

regime under the Limitation of Actions Act gave way to the particular limitation provisions

of WIBA where work-related injuries were concerned.

[47]

Professor Muigai also rejected the contention of Mr Nderitu that musculoskeletal

injuries are not covered by WIBA. "Injury" is defined in section 2 of WIBA as "a personal

injury and includes the contracting of a scheduled disease". Such a definition does not

exclude back injuries. DOSH has routinely handled claims relating to back injury.

Samuel Otieno Musumba v Industrial and another [2022] eKLR was an example of a back injury

having been dealt with by DOSH, and his finding in favour of the claimant left undisturbed

by the court.

[48]

In the circumstances Professor Muigai was of the opinion that the claims brought by

the representative party in the group proceedings were according to Kenyan law subject to

the exclusive jurisdiction of the Kenyan courts.

(ii)

Whether, and how readily, the justice system of the Republic of Kenya allows

claims of the type being pursued in the group proceedings to be brought and determined

in Kenya:

[49]

In his report dated 3 March 2023 Professor Muigai expressed the opinion that it is

possible for claims to be instituted by the group members in Kenya and for them to secure

legal aid and assistance in representation to advance their claims. To be clear, however, it

was made known in advance of the proof that the defenders would not be maintaining that

legal aid was available for the claims nor would any case be made to the effect that

funding would be available through the assistance of Non-Governmental Organisations.

Professor Muigai reported that contingency fee arrangements were prohibited under

Kenyan law.

[50]

That said, Professor Muigai's evidence was that the system of compensation

established under WIBA did not lend itself to group proceedings, not least because

applications to DOSH did not require legal representation. The WIBA mechanism sought

to promote access to justice by persons acting on their own behalf without the incurring of

legal costs. As such, legal representation was the exception for such claims rather than the

norm.

Representative party's proof

[51]

The defenders originally intended to lead Dr Willy Mutunga SC, former Chief Justice

of the Republic of Kenya, to speak to a report dated 28 February 2023 which he prepared

in contemplation of giving evidence at the preliminary proof. In that report Dr Mutunga

gave a written opinion that there was no legislative or contractual compulsion on the group

members to use the WIBA system of compensation to advance their claims, even if the

injuries giving rise to their claims were covered by WIBA - and potentially many may not

be. For reasons that are unnecessary to rehearse Dr Mutunga was unable to be present and

give evidence. He did not, therefore, speak to his report.

[52]

In the result the defenders were content to rely on the evidence of their other skilled

witness, Mr Wilfred Nderitu SC, who helpfully addressed the matter of WIBA exclusivity

and limitation as well as other matters which were contained in his own report. I deal with

his evidence below.

Anne Ireri

[53]

Ms Ireri is the executive director of the Federation of Women Lawyers ("FIDA") in

Kenya. Ms Ireri provided a witness statement in which she expressed the opinion that this

court was the forum in which the group claimants were most likely to achieve substantial

justice. That said, she was not offered as an expert witness but rather to enable her to

discuss the role of FIDA in supporting legal claims in Kenya. In that respect her evidence

was to the effect that FIDA would not be able to support the group members' claims if

litigated in Kenya. That was because FIDA was an organisation focussed exclusively on

the rights of women. Mixed gender claims were not attractive to FIDA given its finite and

limited resources.

[54]

FIDA did implement a programme involving tea estate workers in Kericho County

in 2019. It was aimed at creating awareness amongst female tea workers of their rights and

creating advocacy platforms for them to pursue legal assistance in support of those rights.

The programme was not initiated for the purposes of litigation.

[55]

Ms Ireri's evidence was not ultimately of significant moment since the defenders

did not ultimately dispute at the preliminary proof that legal aid and NGO funding, and

conditional fee arrangements, would probably not be available to group members for the

advancement of their claims in Kenya.

Mr Eric Theuri, advocate

[56]

Mr Theuri is an advocate of the High Court and currently holds office as the

president of the Law Society of Kenya.

[57]

Mr Theuri provided a witness statement which addressed the availability in Kenya

of group claims arrangements, funding and legal representation for claims such as those

presented by the group members. There was an informal court protocol in Kenya which

permitted parties to agree to deal with multiple unitary claims together. He offered as an

example passengers on a bus injured in a road traffic accident. Mr Theuri had never seen

the protocol operating in relation to claims such as were being advanced in the group

proceedings.

[58]

There was no equivalent to qualified one-way cost shifting in Kenya. Contingency

fee arrangements were unenforceable under Kenyan law. Newer legal firms in Kenya

tended not to have the funds or resources to carry high volume claims, and their business

models did not lend themselves to expensive, complex, high risk and contentious claims.

The larger "Ivy League" law firms tended to concern themselves with representing large

commercial organisations. Mr Theuri thought it unlikely that such firms would be ready

and willing to take on the kind of claims being advanced through the group proceedings

(not least for fear of damaging their commercial practice).

[59]

Mr Theuri described the level of awards of compensation being made under WIBA

as negligible. They compared extremely unfavourably with the level of awards made in

statutory and common law claims before the courts. He expressed further concerns about

the adequacy of funding for DOSH and the limited level of medical expertise available

within DOSH on matters relating to occupational injury and disease - albeit that limited

expertise and the prohibitive cost of medical assistance in cases involving complex medical

causation affected claims brought both under WIBA and through the courts.

[60]

Cross-examined on his concerns about the operation of WIBA, Mr Theuri appeared

to disagree with the decision of the Supreme Court in The Law Society of Kenya case while

recognising that it had to be complied with. He disagreed with the characterisation of the

decision as having "excluded" lawyers. The Supreme Court just said that WIBA was not

unconstitutional. Mr Theuri acknowledged that there are lawyers who can take claims to

DOSH (although it was not clear whether either question or answer was referring to the

initial claim or an appeal against the initial assessment by DOSH). Mr Theuri disputed that

claimants under the WIBA system had easy access to justice. His experience was that the

system lacked an effective enforcement mechanism. Mr Theuri also appeared to accept that

the chances were that the defenders and their insurers would pay out on claims assessed by

DOSH. Mr Theuri was unaware of any obstacle that would prevent the group claimants

from taking their claims under WIBA. However, he adhered to the position that the WIBA

system was unjust in respect that it lacked predictability and a proper procedure for

assessing claims and awarding compensation.

[61]

On the matter of taking evidence remotely, Mr Theuri referenced a practice direction

on the hearing of civil claims which contains a presumption in favour of giving evidence

virtually by video link, save where otherwise agreed by the parties in cases of complexity.

He was unaware of any rule which impacted on that presumption where the hearing takes

place outside of Kenya.

Mr Wilfred Nderitu SC

[62]

Mr Nderitu is senior litigation counsel and managing partner of the firm of

Nderitu & Partners, Advocates, Nairobi. He was appointed senior counsel in July 2020.

A copy of his extensive curriculum vitae was appended as appendix II to the report dated

2 March 2023 which he prepared for the purposes of the proof. In evidence he adopted the

contents of his report and adhered to the evidence contained in it. He also expanded on

certain aspects of his report during the proof, particularly with regard to (i) access to justice

in Kenya and (ii) the place of WIBA in Kenyan industrial relations law. I propose to

rehearse his evidence under reference to those two issues.

(i)

Access to justice in Kenya

[63]

Mr Nderitu considered that there was a material risk that the group members would

not be able to obtain access justice in the Kenyan courts. It was highly unlikely that any

individual group member would be able to obtain the services of a lawyer in Kenya. That

was substantially on account of the exceptional poverty to which tea workers are said to be

exposed on a daily basis. Lack of funding was and is a gateway inhibitor to obtaining access

to the courts.

[64]

Expanding on these points, Mr Nderitu described how, even by Kenyan standards,

tea workers were exceptionally poor and, in the case of the present group members,

dependent on the defenders for all aspects of their lives (which in turn made suing the

employer very unattractive). They were physically isolated from other people due to

the size of the tea estates on which they lived and worked. Against a background of

impecuniosity (derived from various disparate sources set out in paragraphs 7.6 and 7.7

of Mr Nderitu's report) it would not be realistically possible for group members in Kenya

to pay legal fees and disbursements in connection with a claim from their own resources.

[65]

Moreover, notwithstanding the enactment of the Legal Aid Act in May 2016,

inadequate funding and other structural issues meant that there was in reality no legal

aid for claims such as these - a matter no longer disputed by the defenders. Mr Nderitu

regarded as fanciful the idea that group members would be able to source financial

assistance from either NGOs or a Union. NGOs usually fund legal claims against

government (in alignment with their organisational mission) rather than private companies.

The number of claims would, in any event, involve expenditure which is likely to exceed

the capacity of NGOs in Nairobi in terms of manpower and resources. Mr Nderitu was

unaware of any case where there had been general Union backing for a very large number

of essentially personal injury claims. Conditional fee arrangements were not available in

Kenya (a point on which Mr Nderitu and Professor Muigai were agreed).

[66]

Not being concerned with constitutional rights, Mr Nderitu did not consider that

the claims of group members fell within the category of case for which group proceedings

were permitted under Kenyan law. Even if such proceedings could be raised he doubted

whether any law firm in Kenya would be prepared to take them on. That was a product

of both capacity and lack of funding. Any law firm with the financial and human resources

to take such proceedings would likely require payment of fees and disbursements as they

accrued. The reality was that there were few lawyers in Kenya who had the skills to handle

group proceedings on this scale, even if they were otherwise permitted to be brought.

[67]

Finally, Mr Nderitu referenced a number of factors, set out in section 12 of his

report, which would likely contribute to significant delay in resolving the claims of the

group members through the ELRC. These touched on the significant caseload of, and

backlog affecting, the ELRC, the length of procedural adjournments, and the availability

of judges when account was taken of leave, annual holidays and time restrictions imposed

by court term dates. Mr Nderitu explained that the neo-colonial perception locally of

foreign companies operating within Kenya, and employing unskilled labour there, would

act as a disincentive for a judge to fast-track the group members' claims which might have

to wait for years before they could proceed to trial.

[68]

In summary, Mr Nderitu considered that there was a substantial and material risk

that if the group proceedings did not continue in Scotland the claims of group members

may never be heard at all in the Kenyan courts or, if they were heard, they would never

be concluded.

(ii)

WIBA

[69]

Mr Nderitu drew attention to what he conceived to be limitations in the WIBA

system. While it offered a supposedly speedy assessment of damages for injuries listed in

the schedules to WIBA, there were many injuries not so listed and which could not therefore

be the subject of a WIBA claim. WIBA was essentially a no fault compensation system. In

the witness's opinion, a system that did not recognise fault when it was there, and provide

full compensation when there was fault, was not really a justice system. It was, as he put it,

an unjust way of trying to grow justice and the system tended to be used by those on the

bottom rung of the ladder.

[70]

That said, Mr Nderitu shared Dr Mutunga's view that WIBA did not oust the

jurisdiction of the ELRC to which there was a constitutional right of access by virtue of

Article 162 of the 2010 Constitution. Article 162, so far as relevant, provides as follows:

"162

System of courts

(1)

The superior courts are the Supreme Court, the Court of Appeal, the High

Court and the courts referred to in clause (2).

(2)

Parliament shall establish courts with the status of the High Court to hear

and determine disputes relating to--

(a)

employment and labour relations; and

(b)

the environment and the use and occupation of, and title to, land.

(3)

Parliament shall determine the jurisdiction and functions of the courts

contemplated in clause (2)."

[71]

Pursuant to Article 162(2)(b) of the 2010 Constitution the Kenyan Parliament, by the

2011 Act, established the Industrial Court (now the ELRC). Section 12(1)(c) of the 2011 Act

conferred on the court

"exclusive original and appellate jurisdiction to hear and determine all disputes

referred to it in accordance with Article 162(2) of the Constitution and the provisions

of [the 2011 Act or any other written law which extends jurisdiction to the Court

relating to employment and labour relations...".

That section 12 expressly conferred exclusive original jurisdiction on what is now the

ELRC explained why the enactment of WIBA cannot have ousted the jurisdiction of the

ELRC to entertain claims which had either progressed through the WIBA system to what

the claimant considered to be an unsatisfactory conclusion, or had not been advanced

through WIBA at all. There was nothing in the decision of the Supreme Court in the Law

Society of Kenya case which detracted from that result. In Mr Nderitu's opinion, therefore,

it was open to a claimant to present a common law claim for damages without first recourse

to the WIBA system, whether or not the injury or illness giving rise to the claim was a

scheduled condition under WIBA.

[72]

Mr Nderitu was of the further opinion that claims which concerned non-listed

conditions, or which had not been channelled through WIBA timeously (ie within the 1 year

limitation period provided under section 26 of WIBA), could nonetheless competently be

advanced before the ELRC. Indeed, Mr Nderitu stated that unless all of the group members

had sustained injuries which were listed in the schedules to WIBA and had occurred less

than 1 year ago, their claims could not be brought under WIBA. Far from ousting the

jurisdiction of the other Kenyan courts they obliged a litigant to go to those other courts.

Submissions

Defenders' submissions

[73]

The defenders formally invited the court to sustain their first plea-in-law

(jurisdiction), which failing their second plea-in-law (forum non conveniens). Although I

was formally moved to dismiss the action in either eventuality senior counsel submitted

that if I were disposed to sustain either plea then the case should be put out By Order for

discussion.

[74]

Senior counsel then addressed what is characterised in the defenders' written

submissions as the central issue in dispute, namely WIBA exclusivity and coverage. He

commended to me the evidence of Professor Muigai concerning the background to the

enactment of WIBA and what was a deliberate policy shift from a system reliant on claims

being advanced in court in favour of the an alternative dispute resolution mechanism which,

according to Professor Muigai, was a necessary first port of call before the jurisdiction of the

court could be invoked. That was precisely what the Supreme Court had decided in the

Law Society of Kenya case in rejecting the argument of the Law Society that section 16 of

WIBA was unconstitutional in respect that it impeded the right of an employee to fair trial

contrary to what are now Articles 40 and 50 of the 2010 Constitution. I was invited to accept

Professor Muigai's opinion, expressed under reference to a number of cases decided in the

ELRC, that WIBA was now the sole mechanism for addressing work injury and sickness

claims. Parliament had (consistent with section 12 of the Industrial Court Act 2011)

conferred on the ELRC an appellate jurisdiction but all claims had first to be submitted to,

and processed by, DOSH.

[75]

I was urged to reject Mr Nderitu's opinion that, by reason of Article 162 of the

2010 Constitution and section 12 of the 2011 Act, the ELRC had an original jurisdiction to

entertain claims which had not previously been processed by DOSH. Such an approach was

unvouched by case law or any other authority. The court had no basis to treat the views of

Mr Nderitu as superior to those expressed by a range of Kenyan judges, and which were at

odds with Supreme Court's ruling on the matter. Followed through to its logical conclusion,

Mr Nderitu's analysis had the potential to create a two-track system of work-injury

compensation which made no sense and was at odds with the legislative intent of WIBA.

[76]

I was also urged to reject Mr Nderitu's opinion that if a condition was not listed in

the WIBA schedules then no compensation could be awarded under the WIBA system.

That argument was rested on too narrow a view of the schedules, interpretation of which

was neither literal nor exhaustive. Professor Muigai's evidence that there was nothing to

preclude DOSH from compensating back injuries should be preferred. That evidence was

consistent with that of Dr Nyandusi, who said that such cases were routinely compensated

(cf Samuel Otieno Musumba v Industrial & Commercial Development Corporation, supra). In

short, Mr Nderitu's opinion was supported by neither legal analysis not administrative

practice.

[77]

Turning to the matter of jurisdiction, senior counsel submitted that the representative

party's position rested on a misapprehension that WIBA operated as a legislative ouster of

this court's jurisdiction. That was not the defenders' position, which was advanced squarely

under paragraph 6 of schedule 8 to the Civil Jurisdiction and Judgments Act 1982. The

defenders' submission was that where the Scottish court would otherwise have jurisdiction

(which was, by reason of its domicile, not disputed) that jurisdiction may be excluded where

the parties had prorogated the exclusive jurisdiction of courts elsewhere (Maher and Rodger:

Civil Jurisdiction in the Scottish Courts, W Green, para 17.04). That was the position in the

instant case. The group members and the defenders are, under Kenyan law, bound by the

terms of the individual contracts of employment of the group members. A specimen

example was lodged (JB3203) and no suggestion was put to any of the defenders' witnesses

that it did not accurately reflect the terms and conditions under which the group members

were employed.

[78]

The contracts of employment imported the "relevant national legislation". That

phrase clearly comprehended WIBA. They also specified that terms and conditions of

service were "as per the current Collective Bargaining Agreement" (as discussed in the

evidence of Daniel Kirui). In all post-WIBA versions of the CBAs between the KTGA and

the Union clause 12(c) provides that: "In the case of Industrial sickness it is agreed that the

terms of the Work Injury Benefits Act shall apply."

[79]

Senior counsel submitted that the term "industrial sickness", as used in both the

contracts of employment and the CBAs, was broad enough to encompass work-related

injuries. It envisaged a situation where the worker was unable to work because their

body was impaired as a result of injury or illness which had occurred as a result of their

employment (Maloney v St Helens Industrial Co-operative Society Ltd [1933] 1 KB 293, at

pp 296-298). The contracts of employment and CBAs were in writing - or at least evidenced

in writing - or (consistent with the evidence of Mr Kirui) were in a form which accorded

with practices which the parties had established between themselves. The group members

were all "unionisable employees". The defenders were and are members of the KTGA.

As such, both the group members and the defenders were bound by the terms of the CBAs

(Labour Relations Act 2007, section 59). It follows that the application of WIBA was

provided for in terms of both clause 9 of the contracts of employment and, via their

incorporation into the contracts of employment, clause 12(c) of the CBAs. Section 16 of

WIBA deprived the courts of original jurisdiction to hear and determine matters relating

to work injury. Section 23 of WIBA provided for initial resolution of disputes via DOSH

before one can approach the court. Section 52 of WIBA allowed parties aggrieved by the

determination of a claim within the office of DOSH to seek redress in what is an appellate

process to the ELRC. As a general principle of Kenyan law, where a dispute resolution

mechanism existed outside the courts, that must be exhausted before the jurisdiction of

the courts is invoked (Geoffrey Muthinja and another v Samuel Muguna Henry and others [2015]

eKLR). Professor Muigai's evidence on that point was unchallenged.

[80]

In summary, under Kenyan law, the group members were contractually bound

by the terms of their employment contracts, and by the incorporation of the CBA for the

time being in force, to advance their work-related injury claims under WIBA to DOSH. If

aggrieved either party may then - but only then - appeal to the ELRC whose jurisdiction in

such matters was and is exclusive. The jurisdiction of this court was therefore contractually

excluded.

[81]

On the hypothesis that this court determined that it had jurisdiction, senior counsel

submitted that it was forum non conveniens. It was clearly and distinctly more appropriate

that the claims of the group members be determined in Kenya, that being the country with

which their claims had the most real and substantial connection (RAB v MIB 2009 SC 58;

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; Airbus Industrie GIE v Patel [1999]

AC 119). In support of that proposition the defenders relied, in no particular order of

priority, on a number of separate but related factors. Thus, the evidence pointed to the

defenders having no employees, operations, factories or business in Scotland. The harm

alleged to have been suffered by the group members occurred in Kenya which was, in

principle, the natural forum for resolution of the claims (Berezovsky v Forbes Inc

[2000] 1 WLR 1004, at pp 1013, 1031; Spiliada Maritime Corporation v Cansulex Ltd, supra, at p 477).

Every aspect of the claims by group members (limitation, liability, causation and quantum)

fell to be determined according to Kenyan law and it was preferable for Kenyan law to be

applied in Kenya (Spiliada Maritime Corporation, supra, at p 486; Societe du Gaz de Paris v

Societe Anonyme de Navigation 1926 SC (HL) 13; Credit Chimique v James Scott Engineering

Group Ltd 1979 SC 406 at pp 414-415; Morrison v Panic Link Ltd 1993 SC 631). The group

members were able to advance their claims in Kenya as of right (Lubbe v Cape plc

[2000] 1 WLR 1545). Kenyan law required that the group members advance their claims via

WIBA in the first instance. To allow the claims to be advanced in this court would amount

to circumvention of the compulsory statutory scheme with the potential for inconsistent

judgments between sovereign nations on a matter of Kenyan law. The fact that the

defenders were registered in Scotland was of no moment where forum non conveniens was

concerned (Societe du Gaz de Paris, supra, at p 18). Any proof would require to be conducted

through interpreters. This was a factor of particular significance in the event that the

credibility of witnesses was in issue (De Mulder v Jadranska Linijska (Jadrolinija) 1989 SLT 269;

Sheaf Lance v Barcelo 1930 SLT 445). Witnesses would require to travel from Kenya to give

evidence unless permission was granted for their evidence to be given from there. There

would require to be no objection to that course of action by the Kenyan state, which was

not a given (Agbabiaka (evidence from abroad: Nare guidance) [2021] UKUT 286 (IAC)).

[82]

In the face of these factors it was for the representative party to show that justice

required that the claims of group members be heard in Scotland. In that respect the

representative party's reliance on the unavailability of legal aid, NGO funding or

conditional fee arrangements in Kenya overlooked the fact that one of the main aims of

WIBA, whose constitutionality had been upheld in the Kenyan Supreme Court, was to

establish a system of compensation for workplace injury where lawyers would not be

required. There was, in any event, no evidence before the court from which any assessment

could reliably be made about whether the group members would be better off litigating

their claims in Scotland rather than in Kenya where WIBA was available at no cost to them.

[83]

Moreover, standing that Kenyan law applied, the availability of group proceedings

in Scotland conferred no procedural advantage, nor ought they to result in the prospect of

higher damages than would be available in Kenya. The contention that WIBA did not apply

to claims brought between 1 and 3 years after an accident was misconceived, WIBA being

the sole and exclusive mechanism for handling claims by employees in respect of all

workplace injury and sickness.

[84]

In summary the preponderance of the evidence justified the court in finding as

follows:

(i)

The group members and the defenders are, under Kenyan law, contractually

bound by their respective contracts of employment, and the terms of the

CBAs entered into between the KTGA and the Union;

(ii)

Properly construed according to Kenyan law, the effect of the contracts of

employment and CBAs is to prorogate the jurisdiction of the ELRC in respect

of claims for compensation arising from death or disablement resulting from

an occupational accident or disease, the group members being bound in the

first instance to invoke the compensatory system established by WIBA;

(iii)

The group members' contracts of employment and also the CBAs are in

writing and in a form which accords with practices which the parties have

established between themselves;

(iv)

Accordingly, the jurisdiction of this court is excluded by the operation of

paragraph 6 of schedule 8 to the Civil Jurisdiction and Judgments Act 1982;

(v)

In any event, there is no connection between Scotland and the claims of

the group members save to the extent that the defenders are registered

in Scotland - a factor which has no relevance to the question of forum non

conveniens;

(vi)

There is an available forum of competent jurisdiction which is clearly more

appropriate than Scotland for resolution of the claims of the group members;

(vii)

The representative party has not demonstrated, on the evidence, that the

group members will be unable to obtain substantial justice in Kenya; rather,

the evidence shows that the group members will be able to obtain substantial

justice through the compensatory system established by the Kenyan

Parliament under WIBA;

(viii)

Accordingly, even if the court has jurisdiction, the defender's plea of forum

non conveniens should be sustained.

Representative party's submissions

[85]

Senior counsel submitted that it was for the defenders to establish, in relation to

each of the claims by group members, that this court lacked jurisdiction or was forum non

conveniens failing which the pleas of no jurisdiction and forum non conveniens could not be

sustained. That the defenders had failed to do.

Jurisdiction

[86]

Dealing first of all with jurisdiction the defenders' position appeared to rest on the

proposition that, by reason of the terms of both WIBA and the CBA, the jurisdiction of the

court was ousted. However, WIBA could not operate legislatively to oust the jurisdiction of

the foreign court. Moreover, the defenders had failed to prove (i) that whichever CBA was

in force at the material time had been properly registered with the ELRC; (ii) how it bound

all of the group members individually; (iii) which version of the CBA was current, and

when; (iv) how the CBA had either prospective or retrospective effect, and (v) in so far as it

appeared to be material to the defenders' argument, what clause 12 (c) of the CBA actually

meant. In the absence of either averment or proof on these matters, the CBA was of no

relevance.

[87]

The starting point to the argument concerning jurisdiction was that the defenders

were admittedly domiciled in Scotland. Moreover, in terms of section 15C of the 1982 Act,

the claims of group members, being claims whose subject matter related to individual

contracts of employment, could have been brought in Scotland on the basis of the defenders'

domicile. The defenders' contention that, by the enactment of WIBA, the jurisdiction of

this court was ousted, was unprecedented and misconceived. Even Professor Muigai was

unable to point to any circumstances in which one country by legislation controlled the

ability of another to hear a dispute involving a company domiciled there (cf Dicey, Morris

and Collins on the Conflict of Laws, 16th Edition, para 1-037).

[88]

Before turning to the evidence of WIBA exclusivity relied on by the defenders

the representative party submitted that I should proceed with caution in adopting a close

textual analysis of decisions of the Kenyan courts. What was of greater assistance was not

the content of the decisions but the terms of relevant primary legislation. The decisions

should only be considered to the extent that the expert witnesses on Kenyan law could

justify their applicability and interpretation (Dicey, para 3-019).

[89]

On the exclusivity of WIBA senior counsel criticised the evidence of Professor Muigai

as an enthusiastic proponent of the legislation who was unwilling to recognise its troubled

history and unlikely to see it as anything other than good law (he having defended its

constitutionality before the Kenyan courts). On the matter of whether there was any bar

in Kenya to a claimant proceeding direct to the ELRC, either directly without recourse to

the WIBA system of compensation or after proceedings under WIBA had been exhausted,

I was invited to prefer the evidence of Mr Nderitu who had, either directly or indirectly,

been engaged in claims to DOSH and also claims direct to the ELRC. His opinion was that

there was no such bar. His evidence on the matter was supported by a number of distinct

features. Thus, there was nothing in WIBA itself stating that a claimant could not bring a

claim outwith the jurisdiction of Kenya. Under the 2010 Constitution there was guaranteed

a right to go direct to the ELRC to determine disputes relating to employment and labour

relations. Section 12 of the Industrial Court Act 2011 conferred on the ELRC both original

and appellate jurisdiction in employment-related matters. The 2011 Act post-dated WIBA

whose provisions Parliament be assumed to have taken into account. It also post-dated

the 2010 Constitution which enshrined the constitutional right of access to the ELRC.

Professor Muigai, it was submitted, was unable in cross-examination to offer any coherent

answer to Mr Nderitu's reasoning. In particular, he could not explain properly why

section 12 of the 2011 Act did not mean what it actually said.

[90]

The defenders' reliance on the Supreme Court decision in Law Society of Kenya case

was misplaced because it read into the decision more than it could reasonably be expected

to bear. The Supreme Court was addressing whether WIBA breached constitutional rights

by restricting access to the courts in Kenya. It did not address the issue of whether there

could be a direct application to the ELRC (as contended for by the representative party

in this case). In other words, the issue before this court was neither considered nor

determined. If anything, the decision of the Supreme Court, particularly paras [62]-[63],

favoured the position of the representative party that such a direct right of access was

available. To the extent that Professor Muigai referenced a series of first instance ELRC

decisions purportedly in support of the proposition that claimants were bound to exhaust

the WIBA process before recourse to the ELRC, none of these decisions considered the

points referenced by Mr Nderitu concerning the 2010 Constitution and section 12 of the

2011 Act. They therefore added nothing to the discussion.

[91]

It was plain that back injuries could not be compensated under WIBA since they

did not appear in the schedules thereto. Mr Nyandusi provided an explanation for why

there might be good reason not to schedule certain injuries, largely on account of concerns

regarding causation of injury in the workplace. That was why there was a process of

advertisement and consultation before the WIBA schedules could be amended.

Professor Muigai's evidence that back injuries could be read into the schedules was

incredible. There was no evidence before the court as to how Kenyan law would deal with

the calculation of compensation for non-scheduled conditions, and it was not considered in

the Law Society of Kenya case. WIBA did not provide the comprehensive solution contended

for by the defenders.

[92]

Moreover, the result of requiring all claims for occupational injury to be dealt with

exclusively under WIBA was that the right to do so would be lost after a year according to

the limitation provisions under WIBA. That would result in claimants being stripped by

implication of their right to bring a claim up to 3 years after the cause of action arose which

was otherwise provided for under the Limitation of Actions Act.

[93]

In summary, the representative party invited me to find that WIBA did not compel

any person to apply in the first instance to DOSH for compensation for work-related injury

or disease; WIBA did not oust the jurisdiction of either this court or the ELRC, and if it did

purport to oust the jurisdiction of this court such would be struck out as contrary to public

policy.

[94]

Turning to the effect of the contractual documents, the representative party

submitted that the defenders had failed to prove that there was any agreement to prorogate

the jurisdiction of the Kenyan courts in respect of all of the group members. In the first

place, clause 9 of the letter of engagement was too imprecise to amount to an exclusive

jurisdiction clause. In that respect it stood in contrast to the clear terms in which (for

example) a contractual arbitration clause ought to be expressed. On the matter of the CBAs,

the defenders would have to demonstrate that all of the group members were members of

the Union or at least "unionisable" if not actually members. There was no such evidence

led at the proof. Secondly, absent any evidence to this effect, the defenders had failed to

prove that the CBA referenced in court was actually registered with the ELRC. That was a

legal requirement if the CBA was to have effect (Industrial Relations Act 2007, section 59(5)).

It was within the gift of the defenders to lodge proof of registration but they had not done

so. That was not resolved by Mr Hutchinson's "belief" that registration had taken place

(or senior counsel for the defenders' suggestion to Professor Muigai, in re-examination, that

there was apparently no issue over registration of the CBA). Thirdly, the last in the series of

CBAs lodged in process bears to have expired in January 2022. There was no basis for the

court to hold that such a CBA bound group members who joined the group proceedings in

September 2022 (or who may do so in the future). As a matter of contractual interpretation

the CBAs relied on by the defenders were time-sensitive and had long since expired. That

group members could be bound by the terms of expired agreements was inconsistent with

the terms of section 59 of the 2007 Act. Fourthly, the terms of clause 12(c) of the CBAs did

not clearly and unambiguously prorogate the exclusive jurisdiction of the ELRC via the

WIBA compensation mechanism. In any event, since the Supreme Court in Law Society of

Kenya did not decide that WIBA ousted the jurisdiction of the courts, clause 12(c) did not

assist. Finally, the CBAs were not on the face of it enforceable at the instance of group

members individually (section 73) and no evidence had been led by the defenders to

demonstrate the mechanism by which they could have been.

[95]

For all of these reasons I was invited to hold that the defenders had failed to establish

that the jurisdiction of this court had been ousted.

Forum non conveniens

[96]

Following a helpful review of the authorities on forum non conveniens senior counsel

drew from them the following principles; (i) once jurisdiction is established the court will

generally be reluctant to decline to hear a case (Clements v Macaulay (1886) 4 M 583; Sokha v

The Home Department 1992 SLT 1049, at p 1054); (ii) the initial onus is on the defenders to

raise and justify the plea, and the test may be summarised as asking the question whether

"it can be shown that the case cannot, consistently with fairness and justice, be tried in this

country" (Sim v Robinow (1892) 19 R 665, at p 666); (iii) once the initial onus is discharged,

the court will then consider the whole circumstances; (iv) the matter is not one of

"convenience", the purpose of the exercise being to attempt to establish whether there is

another court of competent jurisdiction in which the case may be tried more suitably for

the interests of all parties and for the ends of justice (Societe du Gaz de Paris, supra, at p 18);

(v) the mere fact that foreign law is involved is not enough (Clements v Macaulay, supra),

and (vi) at the heart of the consideration is the issue of "justice" (Societe du Gaz de Paris,

supra, at p 23).

[97]

Applying these principles it was submitted that neither the defenders' pleadings nor

the evidence they led came close to demonstrating that the case could not, consistently with

fairness and justice, be tried in Scotland. The pleadings were substantially directed towards

matters of convenience, such as the geographical location of the witnesses, and the fact that

issues of Kenyan law would require to be addressed. On the supposed difficulties in taking

evidence by video link from Kenya, and the potential for a diplomatic incident should that

be attempted, there was simply no evidence. All that the defenders had done was point to

some guidance from another court and the observations of a single judge in circumstances

which were different to the present case (Agbabiaka (evidence from abroad: Nare guidance),

supra).

[98]

On the assumption, though, that the defenders had discharged the initial onus of

showing that it would be more appropriate to litigate in Kenya, the question to be addressed

was whether there was a real risk that the group claimants would not get substantial justice

if the cases were not heard in Scotland. Viewed in that context it was apparent that the

defenders' pleadings focussed on issues of convenience. In substance, however, it was clear

on the evidence that there was such a risk. It was no longer disputed that legal aid, NGO

support and contingency fee arrangements were not available in Kenya. Any costs

associated with the WIBA process and appeal to the ELRC (and, contrary to the submission

of the defenders, resort to that process, to its fullest appellate extent, would give rise to

costs) would have to be borne by the group members, a substantial number had an

insufficient level of literacy even to understand their rights under the WIBA compensation

system. Moreover, Mr Nderitu's essentially uncontested evidence was that poverty, and

fear of the consequences of suing a large employer remained a barrier to litigation for tea

estate workers. Lawyers in Kenya lacked both the skills and resources to pursue mass

litigation in Kenya, which would in any event likely be beset by structural delays inherent

in the justice system there. That was the context against which the fairness, or rather

unfairness, of the WIBA system fell to be judged.

[99]

Moreover, if Mr Nderitu's evidence that WIBA was not compulsory were to be

accepted, there was no sensible basis to think that group members, individually or

cumulatively, would have the level of intellectual skill, literacy and resources to litigate

before the Kenyan courts. In short, the court should hold that, without the group

proceedings progressing in Scotland, the group members would not obtain justice in Kenya.

The plea of forum non conveniens should be repelled.

Analysis and decision

Kenyan law

[100]

I was not addressed in detail on how this court should approach the interpretation of

foreign law, largely because it was not a matter of substantial dispute between the parties.

That said, it will be apparent from the foregoing that much of the evidence led during the

proof concerned the effect and application of Kenyan statute law as well as a consideration,

at least to some degree, of cases decided by the Kenyan courts. The construction of the

material provisions of WIBA, the 2010 Constitution, and other legislation must of course be

guided by the expert evidence led. Since the effect of foreign sources is primarily a matter

for the expert witness, it is usual and desirable, when proving a foreign statute, to obtain

evidence as to its interpretation (Dicey, Morris & Collins on the Conflict of Laws, 16th Edition,

para 3-017). On that matter the defenders did not lead evidence specifically on how the

Kenyan courts approach the interpretation of either contracts or statutes. Mr Nderitu's

evidence was essentially to the effect that on interpretation of both law and contract the

approach does not differ to that which would be adopted by a Scottish court. I note in

passing that the court in AAA and others v Unilever PLC and another [2017] EWHC 371 (QB)

appears to have been uninhibited about interpreting and drawing conclusions from the

Kenyan Limitation of Actions Act 1968 (see paras [112]-[123]). Accordingly, where there is

disagreement between the experts as to the effect of foreign law, as there was in this case, I

consider that the court can, and should, look at the relevant sources of law for itself in order

to resolve that conflict (Dicey et al, para 3-016).

[101]

In my approach to Kenyan law I am also guided by the following passage in Dicey

et al, at para 3-019:

"3-019 Considerable weight is usually given to the decisions of foreign courts as

evidence of foreign law, though such decisions can only, it seems, be referred to if

in the evidence of an expert witness, and, further, must be interpreted in the light

of the meaning attributed to the decisions by the expert rather than according to

the court's independent research involving material not referred to by the expert.

But the court is not bound to apply a foreign decision if it is satisfied, as a result

of all the evidence, that the decision does not accurately represent the foreign law.

Where foreign decisions conflict, the court may be asked to decide between them,

even though in the foreign country the question still remains to be authoritatively

settled"

[102]

The passage just quoted was invoked by the representative party in inviting the

court to proceed with caution in its examination of those cases which were referred to in

the evidence of the experts. In particular it was submitted that many of the ELRC cases on

the subject of WIBA application mentioned in Professor Muigai's evidence attracted little

more than cursory examination. I have borne in mind that cautionary invitation. I would

only observe that those first instance ELRC decisions to which Professor Muigai referred,

and which were not especially long and involved in their discussion of the issues under

consideration, did not seem to me to stand at odds with what had been decided by the

Supreme Court in the Law Society of Kenya case. That case was of considerably greater

importance to my consideration of the WIBA issues in this case.

The issues

[103]

I turn now to address the issues set out in para [4] above in the order in which they

are listed.

Issue 1

Whether the group members and the defenders are bound by agreements which are governed by

Kenyan law and under which, properly construed under Kenyan law, the exclusive jurisdiction

of the Kenyan courts in respect of the disputes articulated in these proceedings is prorogated

[104]

The starting point for analysis of this issue is paragraph 6 of schedule 8 to the

1982 Act. It provides inter alia as follows:

"...6(1) If the parties have agreed that a court is to have jurisdiction to settle any

disputes which have arisen or which may arise in connection with a particular legal

relationship, that court shall have jurisdiction.

(2)

Such an agreement conferring jurisdiction shall be either

(a)

in writing or evidenced in writing; or

(b)

in a form which accords with practices which the parties have

established between themselves; or

(c)

in international trade or commerce, in a form which accords with a

usage of which the parties are or ought to have been aware and which in such

trade or commerce is widely known to, and regularly observed by, parties to

contract of the type involved in the particular trade or commerce concerned."

[105]

The defenders submit that the effect of that provision is that where a Scottish court

would otherwise have jurisdiction (and it is accepted that that would be the position

standing the defenders' domicile), that jurisdiction may be excluded where parties have

prorogated the exclusive jurisdiction of a court elsewhere. The defenders further submit

that that is the effect of the evidence in this case. Why? Both the defenders and the group

members are bound by the terms of individual contracts of employment which not only

make provision for the application, in circumstances of "industrial sickness", of WIBA,

but also (as required by section 59 of the Labour Relations Act 2007) import the terms of

the applicable CBA negotiated between the KTGA and the Union, which provides, at

clause 12(c), that in case of industrial sickness, WIBA shall apply. The employment contracts

and CBAs all being evidenced in writing, or alternatively in a form which accords with

practices which the parties have established between themselves, and WIBA, by section 16

establishing an exclusive process for work injury claimants under Kenyan law, the group

members are bound to advance their claims under WIBA to DOSH and thereafter, if

dissatisfied, by appeal to the Kenyan ELRC whose jurisdiction in that respect is exclusive.

The contract of employment

[106]

The sample contract of employment upon which the defenders' argument rests is

contained in the Joint Bundle (JB3201-3204). The first matter I require to resolve is whether

the defenders have established that the terms contained in the sample contract reflect the

terms under which the group members were, or are, engaged. Examination of the document

reveals that the personal details of the employee have been redacted. The contract bears the

date 3 November 2016. It is described as an appointment letter for "ungraded staff". Under

the heading "Job Description" the position is described as "General Worker/Tea Harvester".

Tea harvesting work is then further described as including mechanical tea harvesting, hand

plucking and shear plucking or any other method of harvesting that may be introduced

from time to time. The contract states that a shear plucker is expected to use a shear to

harvest "good and acceptable" tea leaves. A mechanical tea harvester is expected to be part

of a team of harvesters who will use a motorised tea harvester to harvest tea leaves. The

monthly salary is stated to be Kshs 11,616/=, which according to Mr Kirui is about $100.

[107]

Senior counsel for the representative party submitted that the defenders had failed

to prove that the specimen contract reflected the terms of all of the group members, which

was a necessary precursor to them being considered at all. I am not in sympathy with this

submission. The issue arises in the context of group proceedings in relation to which it is

averred that the group members have all sustained injury as a result of common working

conditions of employees engaged in harvesting tea. Both Mr Hutchinson and Mr Kirui were

cross-examined on the terms of the specimen contract in the context of a discussion about

the hypothetical employee's likely understanding of the contractual terms contained within

it, the requirement for those terms to be translated and explained, and the process by which

the contract was signed by the employee. All of that discussion appeared to proceed on an

assumption that the sample contract reflected the terms under which the group members

were engaged. Mr Kirui's evidence, which I accept, was to the effect that the contractual

terms were standard even if the specific job description (which I took to mean "title") of the

individual employee would require to be inserted. To none of the defenders' witnesses was

it suggested that the specimen contract, which by agreement between the parties is what it

bears to be (viz an appointment letter for a general worker/tea harvester), did not reflect

the terms under which the group members were engaged. The matter is one requiring

consideration of the balance of probabilities. In the absence of challenge I am prepared to

proceed on the basis that the specimen produced accurately reflects the contractual terms

of engagement of the group members.

[108]

Clauses 2 and 9 are of immediate relevance. Clause 2 makes the following provision:

"2.

Salary

As a General Worker you will be paid a monthly salary of Kshs 11,616/= applicable

to your category. This rate also applies to tea harvesting jobs.

Please note that you are expected to complete allocated tasks for assigned jobs for

you to earn the a [sic.] day's wage. Setting and communication of the task would

be done by management.

Your other terms and conditions of service are as per the current Collective

Bargaining Agreement.

The Collective Bargaining Agreement...referred above is negotiated, agreed and registered

every two years between the [KTGA] and [the Union]".

Clause 9 makes the following provision:

"Industrial Sickness

The terms of the relevant national legislation shall apply."

[109]

The representative party submitted that clause 9 was devoid of meaning, and

effect should not be given to it even if the form of contract was held to apply to the group

members. I am not persuaded that is so. The position might have been different had the

clause not been preceded by the heading "industrial sickness". But it is, and meaning has

to be given to the whole of clause 9. In that respect, I note that the word "sick" is used in

clauses 5 and 7 of the specimen contract (in the context of annual leave entitlement and

sick leave) in a broad and general sense and I agree with the defenders' submission that,

as a matter of contractual construction "industrial sickness" ought to be construed likewise

(Maloney v St Helens Industrial Co-operative Society, supra), and that therefore it is wide

enough to cover the situation where a worker is unable to work because their body is

impaired as a result of injury or illness which has occurred as a consequence of their

employment. On that basis, it seems to me that Mr Hutchinson's evidence that "relevant

national legislation" would include WIBA is well-founded, it being (as the long title

states) an Act of Parliament whose purpose is to provide for compensation to employees

for work-related injuries and diseases contracted in the course of their employment. I

therefore conclude that the contract produced does make provision for the application of

the provisions of WIBA in circumstances where injury or illness arises from employment,

and the nature of the injury or illness is covered by WIBA. In such circumstances it would

be necessary for a claim to be processed through DOSH with subsequent recourse, by

section 52, to the ELRC.

[110]

I would, however, add this important caveat. In inviting me not to apply too narrow

a construction clause 9 senior counsel for the defenders submitted that it would be absurd

if the contractual documents (including any relevant CBA, to which I will return shortly)

compelled recourse to WIBA only in cases of some work-related illness which could not be

characterised as an "injury". That is, in my view, to overstate the position. Clause 9 does

not compel recourse to WIBA. It only makes provision for the application of WIBA.

Whether the claims of group members fall within the ambit of WIBA at all is a separate

matter which requires consideration of the relevant provisions of WIBA, in so far as there

was evidence led at the preliminary proof as to their effect. That is a subject to which I will

require to return in addressing issue 3.

[111]

Finally, in relation to the contract, some aspects of the questioning by the

representative party appeared to raise a question as whether the ability of employees to

comprehend the meaning and implications of certain of the terms discussed might have a

bearing on the enforceability of the contractual term which purports to apply "the relevant

legislation". That line of questioning may, of course, have been intended to foreshadow

arguments in relation to forum non conveniens and lack of availability of professional

representation. It is necessary nonetheless to record that it is not, as I understand it, any

part of the representative party's case that the form of contract produced contained terms

which were in any sense unfair to the point of being unenforceable according to Kenyan law.

Had that been the case I would have expected to hear clear evidence on the point. No such

evidence was led and I am not in a position to make any such finding.

Collective bargaining agreements

[112]

Clause 2 of the specimen contract provides inter alia that "[Y]our other terms and

conditions of service are as per the current Collective Bargaining Agreement". By way of

further elucidation, the contract states that

"The Collective Bargaining Agreement referred to above is agreed and registered

every two years between Kenya Tea Growers' Association and the Kenya Plantation

and Agricultural Workers Union".

Clause 12c of the most recent CBA lodged by the defenders, which bears to cover the period

1 January 2020 to 31 December 2021 (albeit it bears the date 1 November 2021) states that

"[I]n the case of industrial sickness, it is agreed that the terms of the Work Injury Benefits

Act shall apply" (clause 12c); JB, p 3004). The same provision is made in earlier versions of

the CBA lodged in process.

[113]

Since I am satisfied that the specimen contract produced probably reflects the

terms under which the group members were engaged as tea harvesters, it may be thought

unnecessary to decide whether in addition the terms of any CBA were contractually

incorporated into the group members' terms of engagement. However, since the matter

was the subject of submission on both sides, I should record in that connection that I am

not convinced that the representative party's submission about the enforceability of rights

under a CBA by individuals is relevant. Reference was made in submissions, but not at the

proof, to section 73 of the Labour Relations Act 2007 in the context of a submission that

enforcement of rights embodied in a CBA on the employees' side could only be at the

instance of the Union. That provision is concerned with "trade disputes". I emphasise that

I heard no evidence on the meaning and effect of section 73 and, in particular, its relevance

in the context of a claim for personal injury. I confine myself to the observation that it is not

immediately obvious that such a claim amounts to a "trade dispute" for the purposes of the

2007 Act. What I did hear evidence about was the provision in the same Act (section 59(3))

which requires that the terms of a registered CBA be incorporated into the employee's terms

of service. That was why Professor Muigai insisted that the parties had contracted on the

basis that WIBA would apply. No compelling evidence was offered to the contrary view

and I am bound to accept that, in principle, the "WIBA clause" in the CBAs referred to in

evidence would, all other things being equal, direct the application of WIBA to a claim

arising from industrial sickness.

[114]

On the matter of whether the defenders have established that the group members

are either members of the Union or "unionisable" (such that they would be subject to the

provisions of any registered CBA and recognition agreement) I would have had little

difficulty in concluding in principle that they would at least fall into the category of

"unionisable". However, it requires to be noticed that clause 2 of the specimen contract

refers specifically to registration of the CBA every 2 years. Section 59 of the Labour

Relations Act 2007 establishes the binding nature of the CBA and, as Professor Muigai

expressed it in para [36] of his principal report, is the basis upon which employers,

employees, the employee union and any relevant employer organisation will be bound

in all matters pertaining to the terms of employment. Crucially, section 59(5) provides:

"(5)

A [CBA] becomes enforceable and shall be implemented upon registration

by [the ELRC] and shall be effective from the date agreed upon by the parties."

In other words, a CBA is only binding upon registration at the ELRC.

[115]

The defenders' reliance on the terms of the CBA to evidence a contractual

prorogation of the jurisdiction of the Kenyan courts, via the application of the terms of

WIBA to the terms under which employees are engaged, gives rise to two significant

difficulties. Firstly, I have neither seen nor heard any evidence as to the existence and

terms of any CBA which might have been in force at the time when any of the group

members (post 30 September 2022) joined the group proceedings. Secondly, and more

significantly, I have seen no evidence of actual registration with the ELRC of any of the

CBAs to which reference was made in the evidence of either Mr Hutchinson or Mr Kirui.

That is surprising in view of the importance that section 59 of the 2007 Act appears to attach

to the process of registration as a pre-requisite to enforceability.

[116]

Mr Hutchinson said no more than that he believed that the CBAs lodged in process

had been "correctly registered". No evidence was led from which I could infer that his

belief was in fact justified. Nor did Mr Hutchinson's response seem to me to justify the

suggestion put to Professor Muigai, in re-examination, and readily assented to by him, that

there was no issue about whether registration had taken place or not. In my view, there is.

In relation to the specimen contract to which reference has already been made there was

specific evidence that its terms remained unchanged, even if the job title might not do so.

The same cannot be said of the CBAs, for which I would have expected evidence not only

of the version in force at the time when the group members formally joined the group

proceedings but also of its registration with the ELRC as the necessary precursor to it

becoming an enforceable agreement covering the period when the group members joined

those proceedings. No such evidence has been led. Another important difference between

the situation of the CBAs and the specimen contract produced is that section 59(1) only

binds unionisable employees for the period of the agreement. In that respect I agree with

the representative party's submission to the effect that CBAs are time-sensitive and that

the evidence of a practice of rolling over agreements is no more than that. It is not the law.

[117]

In short, I am not satisfied that it has been established that the current group

members are bound by the terms of any CBA to navigate their claims via WIBA.

Issue 2

Whether section 16 of WIBA ousts the jurisdiction of courts in claims arising from an occupational

accident or disease causing disablement or death in the course of work

[118]

I turn now to what the defenders characterised as the central issue which emerged

during the course of the proof, namely whether or not WIBA establishes an exclusive

process for work injury claims under Kenyan law. Relying on the analysis of

Professor Muigai, and the evidence of Dr Nyandusi, the defenders maintain that it does

so through an initial process of dispute resolution with resort thereafter to the ELRC, albeit

only on appeal. The representative party submits that I should prefer the evidence of

Mr Nderitu to the effect that WIBA does not prevent a claimant who has suffered a work

injury from resorting direct to court without invoking the DOSH process.

[119]

WIBA is one of a number of statutes enacted by the Kenyan Parliament in and about

the year 2007 as part of what Professor Muigai termed the culmination of a great reform

movement affecting, amongst others, Kenya's labour laws. WIBA itself was enacted in

response to a very specific concern, or perceived concern, about the activities of ambulance

chasing lawyers in the litigation field. Whether such a concern extended to the activities of

lawyers in the field of work injury was disputed by Mr Nderitu. I find it unnecessary to

make any finding in this respect. But Professor Muigai's evidence, which I had no reason

to doubt on this point, was that the enactment of WIBA reflected a deliberate policy shift on

the part of the Kenyan Parliament which was designed to take work injury claims out of the

hands of lawyers in favour of an administrative process. At its heart was the establishment

of a no-fault scheme of compensation scheme for injuries suffered by employees in the

course of their employment.

[120]

Such is the background to the case of Law Society of Kenya v Attorney General and

another in which the Law Society of Kenya argued that WIBA, in purporting to oust the

jurisdiction of the courts, compromised the rights of employees to a fair adjudication of

their claims. The flavour of Professor Muigai's evidence was that in taking the case the

Law Society was motivated not by concerns about constitutionality but rather the interests

of its members. It is not necessary for me to reach any view on that matter. It would be

entirely possible to have concerns about both without ascribing an ulterior motive to either.

But how the Supreme Court dealt with the Law Society's argument that section 16 of WIBA

was unconstitutional is central to my consideration of the parties' arguments on WIBA

exclusivity.

[121]

The basic right to compensation for an employee who is involved in an accident

resulting in disablement or death, or who contracts an occupational disease in the course

of their employment, is set out in respectively sections 10 and 38 of WIBA. I have already

summarised the evidence of Mr Kirui and Dr Nyandusi about how the compensation system

established by WIBA operates in practice, which I accept as uncontroversial.

[122]

The framework for the compensation system established under WIBA derives from

inter alia the following provisions:

"10.

Right to compensation

(1)

An employee who is involved in an accident resulting in the employee's

disablement or death is subject to the provisions of this Act, and entitled to the

benefits provided for under this Act.

(2)

An employer is liable to pay compensation in accordance with the provisions

of this Act to an employee injured while at work...

16.

Substitution of compensation for other legal remedies

No action shall lie by an employee or any dependant of an employee for the

recovery of damages in respect of any occupational accident or disease resulting

in the disablement or death of such employee against such employee's employer,

and no liability for compensation on the part of such employer shall arise save

under the provisions of this Act in respect of such disablement or death...

21.

Notice of injury or accident by employer to Director

Written or verbal notice of any accident provided for [in section 22] which occurs

during employment shall be given by or on behalf of the employee concerned to

the employer and a copy of the written notice or a notice of the verbal notice shall be

sent to the Director within twenty-four hours of its occurrence in the case of a fatal

accident...

23.

Inquiry by Director

(1)

After having received notice of an accident or having learned that an

employee has been injured in an accident the Director shall make such inquiries

as are necessary to decide upon any claim or liability in accordance with this Act.

(2)

An inquiry made under subsection (1) may be conducted concurrently with

any other investigation.

(3)

An employer or employee shall, at the request of the Director, furnish such

further particulars regarding the accident as the Director may require.

(4)

A person who fails to comply with the provisions of subsection (3) commits

an offence...

26. Claim for compensation

(1)

A claim for compensation in accordance with this Act shall be lodged by or

on behalf of the claimant in the prescribed manner within twelve months after the

date of the accident or, in the case of death, within twelve months after the date of

death.

(2)

If a claim for compensation is not lodged in accordance with subsection (1),

the claim for compensation may not be considered under this Act, except where

the accident concerned has been reported in accordance with section 21.

(3)

If an employer fails to report an accident or to provide information requested

by the Director as specified in the request, the Director may--

(a)

conduct an investigation and recover the cost of the investigation from

the employer as a debt due from the employer; or

(b)

levy a penalty on the employer.

(4)

An employer or insurer against whom a claim for compensation is lodged

by the Director under this section, shall settle the claim within ninety days of the

lodging of the claim.

(5)

The Director shall, within thirty days of receipt of the money claimed

under subsection (1), pay the money to the employee who made the claim or his

dependants.

(6)

An employer or an insurer who fails to pay the compensation claimed

under this subsection commits an offence and shall on conviction be liable to a fine

not exceeding five hundred thousand shillings or to imprisonment for a term not

exceeding one year or to both...

51.

Objections and appeals against decisions of the Director

(1)

Any person aggrieved by a decision of the Director on any matter under

this Act, may within sixty days of such decision, lodge an objection with the Director

against such decision.

(2)

The objection shall be in writing in the prescribed form accompanied by

particulars containing a concise statement of the circumstances in which the objection

is made and the relief or order which the objector claims, or the question which he

desires to have determined...

52.

Director's reply

(1)

The Director shall within fourteen days after the receipt of an objection in

the prescribed form, give a written answer to the objection, varying or upholding

his decision and giving reasons for the decision objected to, and shall within the

same period send a copy of the statement to any other person affected by the

decision.

(2)

An objector may, within thirty days of the Director's reply being received by

him, appeal to the Industrial Court against such decision..."

[123]

Section 16 is the provision which underlies the exclusivity argument in this case.

In my opinion the evidence of Professor Muigai is to be preferred in his analysis of what

was decided in the Law Society of Kenya case and the consequences of the Supreme Court's

judgment at least as far as immediate recourse to the Kenyan courts is concerned. The

representative party submitted that the argument advanced by Mr Nderitu was not argued

in the Supreme Court. For what it is worth I agree with that submission. It was not. The

position advanced by the Law Society was that the effect of section 16 of WIBA was to

extinguish an employee's right to file an action for the recovery of damages from an

employer in respect of any occupational accident or disease resulting in the disablement or

death of such an employee. This infringed the employee's rights of access to justice and a

fair hearing under Articles 48 and 50 of the 2010 Constitution. Conversely, the Attorney

General (by then, Professor Muigai's successor in that office) argued that section 16 was not

unconstitutional but was merely an ouster clause which was permissible under Kenyan law.

[124]

The Supreme Court rejected both arguments. Its decision on the Law Society's

argument was to the effect that section 16 prevented an employee from commencing

recovery of damages in respect of any occupational accident or disease resulting in the

disablement or death of such employee against the employee's employer, other than in the

forum and manner provided for in WIBA. The Kenyan courts had no jurisdiction to receive

such matters as first ports of call. The Supreme Court held that a plain reading of section 16

revealed that its intention was not to limit access to the courts but to create a statutory

mechanism where any claim by an employee under the Act [my emphasis] was subject,

initially, to a process of dispute resolution starting with an investigation by DOSH and

thereafter, under section 52, an appeal mechanism to the ELRC (para [62]). Consequently,

addressing the argument of the Attorney General, it could not be the case that section 16

amounted to an ouster clause. Rather, it was merely facilitative of what may eventually end

up in court (para [69]). So, what the section did was to allow "the use of alternative dispute

resolution mechanisms to be invoked before one can approach a court" (para [70]). While

the word "allow" was employed by the court it is, in my view, tolerably clear from a wider

consideration of the judgment that the Supreme Court was interpreting WIBA, and in

particular section 23 thereof, as mandating an initial process involving DOSH. That was

the tenor of Professor Muigai's evidence and I accept that evidence.

[125]

Thus, in para [62] of its judgment, the Supreme Court said this:

"...we further find that section 16 cannot be read in isolation so as to create the

impression that it curtails the right to immediately access the courts, because by

looking at the intention of section 16 the purpose it fulfils is apparent. That purpose

is revealed in section 23 which calls for initial resolution of dispute via [DOSH] and

this can be deemed as an alternative dispute resolution mechanism. But what if

one is aggrieved by the decision of [DOSH]? The answer to that question lies in

section 52 of the Act which allows aggrieved parties to seek redress in a court

process. In the circumstances, access to justice cannot be said to have been denied."

[126]

It might be said, perhaps with some justification, that that statement hints at a degree

of inconsistency in respect that a process that compels initial consideration of a claim by

DOSH necessarily curtails the right immediately to access the courts. In that respect the

Supreme Court's reasoning is not entirely straightforward. But the end result is made clear

in paras [64] and [66], as follows:

"[64] [DOSH]'s inquiries are also essentially preliminary investigations. Such

mechanisms, set out by statute, must be left to run their full course before (my

emphasis) a court intervenes. Not only does this simplify procedures to ensure

that courts focus on substantive rather than procedural justice, but also potentially

addresses the problem of backlog of cases, enhances access to justice, encourages

expeditious disposal of disputes, and lowers the costs of accessing justice...

...[66] In addition, [DOSH] is in essence performing a quasi-judicial function under

section 23 and by dint of article 165(6) [of the Constitution] `The High Court has

supervisory jurisdiction over the subordinate courts and over any person, body or authority

exercising a judicial or quasi-judicial function.' His actions and decisions, even without

review or appeal, are therefore still subject to the over-riding authority of the High

Court."

[127]

What the Supreme Court did not do was to interpret section 16 in such a way as to

leave open the possibility of an immediate right of access to the ELRC without recourse to

DOSH at all. Senior counsel for the representative party invited me to accept Mr Nderitu's

evidence (foreshadowed as it was in an opinion provided to the court by the former Chief

Justice of Kenya, Dr Mutunga) that WIBA could not be said to have ousted the jurisdiction

of the ELRC, to which there was a constitutional right of access by virtue of Article 162 of

the 2010 Constitution, and whose exclusive original, as well as appellate, jurisdiction was

confirmed by section 12 of the Industrial Court Act 2011 - an Act which post-dated the

enactment of WIBA. Meaning and content required to be given to the "original" jurisdiction

conferred on the ELRC which clearly indicated that there was no requirement to exhaust the

WIBA process before resort was had to it. The Supreme Court in the Law Society of Kenya

case was deciding a different issue, namely whether WIBA was contrary to the Kenyan

Constitution. It was open to this court to accept Mr Nderitu's evidence that there was a

continuing right of direct access to court.

[128]

This aspect of the case is one which is not easy to resolve. The line of argument put

forward by Mr Nderitu was rather disparaged by Professor Muigai in cross-examination.

In doing so, however, Professor Muigai's reasoning was neither easy to follow nor at times

was it convincing. It appeared to be based on the proposition that because section 12 of the

2011 Act conferred on the ELRC original and appellate jurisdiction to hear and determine

disputes referred to it in accordance with Article 162 of the 2010 Constitution, the provisions

of the 2011 Act itself or any other written law which extended jurisdiction to the court, and

because WIBA was written law which extended appellate jurisdiction to the ELRC, that was

the extent of the court's jurisdiction where claims for work injury were concerned. Pressed

on what meaning should be ascribed to the words "original and" in section 12 of the

2011 Act, Professor Muigai's response was that "[I]t is of no consequence" without

providing a clear answer to the question he had been asked.

[129]

Any misunderstanding of Professor Muigai's evidence on this potentially significant

issue may be mine. In seeking to resolve that issue, however, it is impossible to ignore the

fact that the Supreme Court, in the Law Society of Kenya case, does not appear to have been

addressed on any argument that a direct and immediate right of access of the ELRC could

be read into Article 162 of the Constitution and section 12 of the 2011 Act when it was

invited to consider the constitutionality of WIBA. The representative party submits that

that is unsurprising because the Supreme Court's focus was on the constitutionality of

WIBA. That is of course so. But it ignores what the Supreme Court actually decided where

section 16 is concerned. What the court decided was that section 16 did not infringe the

Constitution because it did not extinguish an employee's right to file an action for damages

in respect of any occupational accident or disease resulting in disablement or death against

their employer. Why? Firstly, the purpose of section 16 was fulfilled by provision for initial

dispute resolution via DOSH, with provision for redress for an aggrieved claimant by

appeal under section 52 to the ELRC (para [62]). Secondly, by being merely facilitative of

what may eventually end up in the ELRC, section 16 did not operate as an ouster clause.

The practical outcome, at least as far as concerns claims in respect of occupational accident

or disease which fall within the ambit of WIBA, is that they must follow the route to

compensation prescribed by WIBA.

[130]

Accordingly, if one were to assume meantime that the group members claims do

fall within the ambit of WIBA, then I take leave to doubt whether it is open to this court to

look beyond what the Supreme Court actually decided in the Law Society of Kenya case in

order to come to an independent view on how different the outcome might have been had

the argument outlined to me by Mr Nderitu been made and considered. Whether that

argument in any way casts doubt on what the Supreme Court decided in 2019 must

ultimately be a matter for the Kenyan courts to resolve, not for me.

[131]

The same point could be made about the representative party's contention, which

arose primarily in cross-examination of Professor Muigai (under reference to the report by

Dr Mutunga which was not spoken to in evidence) to the effect that because WIBA could

not impliedly repeal the 3 year limitation period for tort claims provided for in section 4 of

the Kenyan Limitation of Actions Act 1968, it must be possible to bring a claim otherwise

than under WIBA. Professor Muigai's answer was to the effect that the general limitation

provision in the 1968 Act was a default provision which referred to general tortious liability

and not work-related compensation. Work-related compensation was regulated by the

specific provisions of WIBA which included a specific time limit. So far as the case report

discloses, that argument too was not considered (probably because it was not argued) before

the Supreme Court. I am not in a position to resolve, certainly without evidence on the

point, how the reasoning of the Supreme Court might have been influenced by any such

argument, whatever its underlying logic. The only conclusion I can properly draw is that

there is a 3 year limitation period which may apply to tortious claims not otherwise covered

by the provisions of WIBA. But, since limitation may for aught yet seen become an issue

in these proceedings, I propose to say nothing more on the matter.

[132]

In summary, I accept Professor Muigai's evidence that the current state of the law

in Kenya, as laid down in the Law Society of Kenya case, is that WIBA provides by section 16

the sole mechanism in Kenya for addressing those work injury and sickness claims which fall

within its ambit, and such claims that do must first of all be advanced through the DOSH

process before recourse to court. That view of matters would appear to be supported by

consideration of a number of decisions of the ELRC in the aftermath of the Supreme Court

decision and to which reference was made in the evidence, reflecting a relatively settled

position in Kenyan law, whatever legal uncertainty (or even turmoil) may have arisen

from the original decision of the High Court in 2010 to hold WIBA to be in certain respects

unconstitutional and section 16 to be an ouster clause. I refer in this connection to

Musumba v Industrial &amp [2022] eKLR, para [75]; Heritage Insurance Company Ltd v

David Fikiri Joshua and another, supra, p 5/7; Magot Freight Services Ltd and others v

Samson Mwakenda Mangale, supra, paras [7]-[11]; Austin Oduor Odira v Kenya Sweets Ltd

and another [2021] eKLR No 74/2021; Perfect Scan Ltd v Harrison Kahindi Said, supra, p 6/6,

and Manuchar Kenya Ltd v Dennis Odhiambo Olwete, supra, paras [16]-[17]. A point was made

about Mr Nderitu not having been fully equipped to respond to the citation of some of the

first instance decisions just mentioned. I recognise that, for whatever reason, he was

disadvantaged in not having seen them in advance of giving evidence. That did not detract

from the evidence he otherwise gave on the constitutional and statutory justification for

immediate recourse to courts. However, I consider that for WIBA claims the current state of

Kenyan law is against him. I also quite accept that the Law Society of Kenya litigation started

life before the 2010 Constitution and the 2011 Act. But that does not, in my view, detract

from the point which is that the Supreme Court was required to analyse the effect of

section 16 on immediate access to court, and that is what it did.

[133]

To conclude on this part, I do not consider that I can properly give effect to

Mr Nderitu's argument that there is an unlimited right of immediate access to the court

for work injury claims standing my understanding of what the Supreme Court decided in

the Law Society of Kenya case. That argument, in my view, does not give sufficient deference

to the wording of section 16 itself. To that extent Professor Muigai's evidence is to be

preferred.

[134]

For completeness, standing the way in which this issue is expressed, it is necessary

to sound a cautionary note because it will be recalled that the Supreme Court decided

that section 16 did not operate as an ouster clause. What it did was to allow the use of

alternative dispute resolution before any approach to the court (paras [68]-[70]).

Issue 3

Whether a work-related injury claim that has been filed outside the provisions of WIBA is a nullity

[135]

In my opinion, an answer to the question underlying this issue may be found in the

particular circumstances of this case by addressing what was termed in the representative

party's written submissions as "the non-scheduled injury problem".

[136]

Another issue not addressed in the Law Society of Kenya case was how the WIBA

regime could be said to apply to claims for injury or illness which are not listed in the

schedule to the Act. That issue requires some unpicking.

[137]

I take as a starting point the interlocutor dated 16 February 2022 which followed

the original permission hearing in the group proceedings. As required by Rule of

Court 26A.12(1)(b) that interlocutor granting permission for the proceedings to be brought

defined the group and the issues as

"claims in respect of musculoskeletal injury arising from common conditions

of employment of employees engaged in harvesting tea on estates owned and/or

operated by the defenders in Kenya".

In the pleadings, at condescendence 4, the representative party, on behalf of the group

members, avers that

"[I]n the course of their employment within tea harvesting roles on the Kenyan

Tea plantations operated by the defenders, [the group members] have all sustained

musculoskeletal injuries including injuries to the lumbar and cervical spine arising

out of unsafe working practices and working conditions"

To the extent that there are any averments about psychiatric and psychological injury they

are described as sequelae to the physical injuries averred. Consistent with the definition of

the issues in the interlocutor of 16 February 2022 the claims of the group members are said

to arise by reason of the "musculoskeletal injuries suffered through want of reasonable care

by the defenders towards their employees". In these circumstances the representative party

submitted that claims of that nature did not fall within any of the schedules. If the

defenders sought to maintain that Kenyan law compelled the group members to follow the

WIBA compensation system of initial dispute resolution through DOSH it was incumbent

on them to prove that unscheduled injury could be dealt with under WIBA. That they had

failed to do.

[138]

While both Mr Kirui and Dr Nyandusi explained the operation of the DOSH

procedure in the generality neither witness did so under detailed examination of the

pertinent provisions of WIBA. Mr Kirui was, however, shown a document which bears

to have been generated by DOSH (no 7/36 of process; JB3062) and which summarised the

procedure which had been developed to process non-fatal claims in respect of injuries at

work. Standing the terms of the joint minute I proceed that the document is indeed what it

bears to be. The process outlined, which aligns with Mr Kirui's description of it, even if he

was not familiar with the document itself, requires there to be an assessment by the primary

doctor providing medical treatment of the percentage incapacity of the claimant pursuant to

section 30(2) of WIBA (paragraph (iii)). Section 30(2) provides that

"...if an employee has sustained an injury specified in the first column of the

First Schedule, the employee shall for the purposes of [WIBA] be deemed to be

permanently disabled to the degree set out in the second column of the First

Schedule".

[139]

Schedule 1 contains a compendium of injuries which are then related to a degree

of disablement, expressed as a percentage, so that compensation can then be computed.

Dr Nyandusi explained that schedule 1 of provided the basic framework for common

injuries at the workplace. It was not an exhaustive list and many injuries and diseases

might fall outwith the schedule. For that reason Dr Nyandusi explained that DOSH often

invoked paragraph G(c) of that schedule, which states: "the Director shall prescribe the

compensation criteria for Musculoskeletal disorders and occupational injuries not elsewhere

covered". Consequently, DOSH had entertained claims of repetitive strain injury and

other musculoskeletal injuries. That said Dr Nyandusi accepted, in a cautious exchange

in cross-examination, that there may be good reasons why non-scheduled injuries, like

back injuries, might not be included in schedule 1 arising from concerns about proof of

causation, and that adding to the list of scheduled injuries required a statutory process of

advertisement and consultation to be followed. In re-examination Dr Nyandusi was asked

whether - putting the matter very broadly - back injury was compensable, to which the

witness replied in the affirmative.

[140]

What is to be made of this evidence? If one thing is clear it is that the only reference

to "musculoskeletal" conditions is that contained in paragraph G(g) of schedule 1. The tenor

of Dr Nynadusi's evidence was that DOSH had in effect exercised a discretion to entertain

RSI claims. I heard no evidence that DOSH had actually prescribed any criteria for the

admission of such claims, which is what the terms of paragraph G(g) would seem to require,

far less what such criteria might have been. The evidence allows me to conclude only that

claims relating to back injury may have been accepted and processed by DOSH in the past

in the exercise of what it conceived to be a broad discretion. In that respect the answer given

to the very broad question asked in re-examination, to which I have just referred, is not a

complete answer. It is quite a different matter to say that claims for unscheduled injury

must be processed initially through DOSH. On that critical matter the evidence is silent.

[141]

I regard this as a point of central significance. The schedules are far from

straightforward to digest, and their relationship with the remainder of the compensation

provisions in WIBA was not explored in any depth. For example, there was no discussion

about the significance or effect of section 30(3) so far as concerns injury not specified under

schedule 2, or section 38(1) so far as concerns unscheduled occupational diseases. I do not

consider that I am equipped to make any findings in respect of those provisions. They did

not feature in Dr Nyandusi's explanation for why DOSH had previously entertained RSI

claims. Moreover, in determining whether the group members' claims relate to any

scheduled condition, matters were further complicated by differences that emerged in

the evidence of Dr Nyandusi and Professor Muigai about which schedule (if any) might

be relevant. Dr Nyandusi concentrated on the effect of paragraph G(g) of schedule 1.

Professor Muigai's proceeded, at least for the most part, on the basis that musculoskeletal

conditions could be read into the schedule 2 as being "consistent" with the occupational

diseases listed there, and that there was no need to amend the schedule if it could be

interpreted. When that proposition was tested by reference to a hypothetical claim for

Covid (which is nowhere listed in schedule 2) contracted at the workplace, it seemed to

me to run into difficulty.

[142]

For completeness, schedule 2 to WIBA lists a number of occupational diseases which

are capable of attracting compensation under the provisions of WIBA. Other than a singular

reference to cramp of the arm or forearm due to repetitive movement, which does not assist,

none are examples of musculoskeletal conditions. In short, I do not consider that the

evidence allows me to conclude that the types of claims advanced by the group members,

being concerned with non-scheduled injury or illness, can be processed under the provisions

of WIBA or that the defenders have established that that is so. To that extent I agree with

what is set out in paras 2.31-2.33 of the representative party's written submissions. Nor do I

consider that the evidence compels me to any different view by the terms of section 16 itself.

When once you accept the proposition that there can be unscheduled injury claims which

cannot be processed under WIBA without amendment to the relevant schedule (as I

understood Professor Muigai to accept under reference to the discussion about Covid in

the evidence) then section 16 must be interpreted in that light. The wording of the section

cannot compel any and every claim for workplace injury to be processed through WIBA.

What it does is to require claims which are covered by WIBA to be processed according to its

provisions.

[143]

Moreover, standing the requirement in section 31 of WIBA for gazetting and

advertisement of additions to schedule 1, and absent any evidence to the contrary, I can

see no justification for the view that previous discretionary willingness on the part of DOSH

to accept claims in respect of unscheduled injury or illness compels all such claims to be

presented in the first instance through DOSH. Professor Muigai referred to the case of

Musumba v Industrial &amp as a recent illustration of an award by DOSH for back

problems sustained as a result of long working hours (in that case as a driver). However,

the competence of the original award of compensation was not addressed, the claim for

enforcement of the DOSH award having been taken to the ELRC by the claimant. As far

as the evidence in the present case is concerned I have not had sight of any case which

addresses the extent of DOSH's jurisdiction to process compensation claims where

unscheduled injury and illness is concerned.

[144]

Finally, I do not consider that the conclusion I have reached means that the group

members are left without any remedy under Kenyan law. In that respect I return to one

aspect of Mr Nderitu's evidence when he described how section 12 of the Industrial Court

Act 2011 conferred on the ELRC both original and appellate jurisdiction. In my view,

content can after all be given to the word "original" where a claimant has no right of

recourse under WIBA because his condition is not covered in the sense of being listed in the

schedules to WIBA. Moreover, at para [94] of his original report, Professor Muigai referred

to a decision of the ELRC, Linet Kadzo Kenga v Indiana Beach Apartment Hotel Ltd [2015] eKLR,

in which the court was said to retain the power to award general damages based on the

principles of English common law, albeit that any WIBA compensation previously awarded

would require to be taken into account in any award of damages. My reading of the case

to which he referred did not suggest that the court was exercising any kind of "appellate"

function under section 52 of WIBA. All of which leads me to conclude that if the group

members are not compelled down the WIBA route - and, for the reasons given, I do not

consider that they are - an avenue of recourse to court for the recovery of damages along

common law principles remains open under Kenyan law following what may be relatively

familiar common law principles.

Issue 4

Whether this court has jurisdiction

[145]

The contractual documents to which I refer (including, quantum valeat, the CBAs

which were exhibited during the evidence) do not expressly exclude the jurisdiction of this

court. Nor do the defenders argue that they do. Rather, the defenders' submission is that

the parties have agreed that WIBA shall apply to claims for "industrial sickness", meaning

that the appellate jurisdiction of the ELRC is necessarily invoked. However, consistent with

what has already been discussed under reference to the earlier issues, I am not satisfied that

the defenders have established that the claims of group members involve injuries or

conditions which are covered by WIBA and which must therefore be dealt with under its

compensation regime. It follows that the jurisdiction of this court has not been excluded by

agreement. The defenders' plea of no jurisdiction must therefore be repelled.

Issue 5

Whether, in the event that this court has jurisdiction, it is forum non conveniens

[146]

I have already recorded at length parties' competing submissions on forum non

conveniens. I accept that, from the case law cited, the plea will be sustained if the court is

satisfied that there is some other court or tribunal, having competent jurisdiction, in which

the case may be tried more suitably for the interests of all parties and for the ends of justice

(Clements v Macaulay, supra, p 668; Credit Chimique v James Scott Engineering Ltd, supra,

p 410). I also accept that the initial onus is on the defenders to raise and justify the plea, and

that the matter is not simply one of convenience (Societe du Gaz de Paris, supra, pp 13, 18).

Where the initial onus is discharged it will be for the party asserting jurisdiction to show

that justice requires otherwise (Spiliada Maritime Corporation v Cansulex Ltd, supra, pp 477-

478; De Mulder v Jadranska Linijska, supra, p 274D-F).

[147]

As to the relevance of foreign law, in some cases the questions to which it gives rise

may be relatively simple and the application of that law by a Scottish court may not present

undue difficulties. In such cases the necessity to apply foreign law would not suffice to

found the plea. In other cases the questions of foreign law likely to be involved may be

numerous and complex and in such cases the necessity to apply the law might properly be

a factor which the court would take into account in deciding whether or not to exercise its

discretion to sustain the plea (Credit Chimique v James Scott Engineering Group Ltd, supra,

pp 412-3).

[148]

Applying these principles to the circumstances of the instant case, the defenders rely

on a number of other factors in support of the submission that it is clearly and distinctly

more appropriate that the claims of the group members be determined in Kenya. Thus the

defenders have no employees, factories or business in Scotland and their registration in

Scotland has no relevance to the plea of forum non conveniens. The harm alleged by the

group members having been suffered there, Kenya is in principle the natural forum for

resolution of their claims. Kenyan law is applicable to all aspects of the group members'

claims. There are substantial practical implications arising from the fact that foreign

witnesses will require to give evidence in person unless arrangements for the giving of

remote evidence could be effected. That would require there to be no objection by the

Kenyan state.

[149]

Much of what was said on behalf of the representative party in oral submissions

about the issue of forum revolved around the practical implications for group members of

having to follow through the administrative process of compensation by DOSH at all. The

defenders too, albeit from a different perspective, made much of the impracticality of doing

so in a Scottish court given the solely appellate nature of the ELRC in that process (which

would have to be replicated in some way in resolving the group claims). But given that I am

not satisfied that the defenders have established that claims of the group members, being

concerned with non-scheduled injury or illness, can be processed under the provisions of

WIBA, the concerns about the fairness of, or replicating, that process in Scotland do not

arise. Nor does the defenders' concern that the court would effectively be allowing the

group members to avoid a compulsory statutory scheme. That is a point of some

significance because, had the position been otherwise, I should own to having had

considerable difficulty in understanding how this court would be in any position to assess

"WIBA compensation" in the context of what is, initially at least, a no fault administrative

process.

[150]

Leaving those legal and practical complexities to one side, I am unpersuaded on the

pleadings and the evidence led that there are significantly complex and disputed issues

of Kenyan law that would require to be resolved in dealing with the group members'

substantive claims. Mr Nderitu's unchallenged evidence was that on the matter of duties

owed at common law Kenyan law was in essence the same as Scots law. As previously

noticed, Professor Muigai referenced the case of Linet Kadzo Kenga v Indiana Beach Apartment

Hotel in which the court dismissed a submission that damages were only available under

WIBA and that the ELRC had power to award general damages "based on the principles of

English common law", due account having been taken of compensation previously awarded

by DOSH. In short, it seemed to me that the point of greatest complexity concerned the

position of WIBA in the relationship between the group members and the defenders

(including the differing limitation periods provided for in WIBA and the Limitation of

Actions Act 1968).

[151]

There are, however, other matters relied on by the defenders in support of their

position that it is clearly and distinctly more appropriate that the group members' claims

be heard in Kenya. Since the harm alleged occurred in Kenya then that was the appropriate

forum for resolution of the group claims. Mr Hutchinson's evidence supported the view

that the proceedings were likely to raise issues which required an understanding of Kenyan

culture, behaviour and custom. At an important, though practical level, investigations

would require to be undertaken locally. There was uncertainty over the enforceability of

any order made by this court concerning the inspection of property, including judicial

accessibility for site inspections. It was unsatisfactory, from the point of view of assessing

credibility and reliability of evidence, that interpreters would be required to translate

evidence, the nuances of which could be lost. The requirement for translation would

inevitably prolong proceedings. Moreover, there was also no certainty that the evidence of

numerous witnesses to fact could be heard remotely. The attitude of the Kenyan state had to

be considered and the correct processes followed.

[152]

I have considered the submissions of parties carefully and I conclude, at this stage,

that the defenders have discharged the initial onus which is incumbent on them to show that

it is more appropriate to litigate these claims in Kenya. It is not entirely correct that there is

nothing in the pleadings to disclose any dispute about the terms of Kenyan law. As both

sides highlighted during the procedural stages of these proceedings there is at least the

potential for disagreement as to the effect of the Kenyan law of limitation on individual

claims and how the law might address the situation of late onset of symptoms. That will of

course require to be the subject of expert evidence. But there are other factors which clearly

point to Kenya as being the appropriate forum. The group members all live in Kenya. They

all sue on the basis of having sustained injury on tea estates in Kenya as a result of the

defenders' breach of duty there. The defenders, although retaining a registered office in

Scotland, have no other operations, factories or other discernible business in Scotland. They

operate as a branch in Kenya. I observe that those senior officers who came to Scotland to

give evidence for the defenders are all based, and live, in Kenya. Ordinarily the group

members may be expected to give evidence in court in support of their claims. The

circumstances giving rise to those claims, including the processes said to have given rise

to injury, will inevitably require to be investigated in Kenya. Moreover, the defenders have

raised practical but nonetheless important issues about the extent to which orders normally

pronounced as a matter of routine (eg specifications of documents and property, and the

taking of evidence remotely) could be enforced in Kenya. One example of that potential

difficulty mentioned in the representative party's submissions arises from an order for

inspection of property issued, in an action raised before it, by the All Scotland Sheriff

Personal Injury Court which has been the subject of challenge in the ELRC, an injunction

against its enforcement secured, and in respect of which a decision is now awaited from the

Kenyan Supreme Court. Cumulatively, these considerations lead me to conclude that, all

other things being equal, Kenya would be the appropriate forum for disposal of the group

members' claims.

[153]

But the matter does not rest there. I still require to consider whether there is cogent

evidence of a material risk that the group members may not obtain justice if they are obliged

to litigate their claims in Kenya. In that respect the representative party's submissions

devoted much attention to the practical difficulties faced by substantially illiterate and

unrepresented employees navigating their way through the WIBA system. Indeed, a

fair proportion of the evidence was devoted to that exercise to the point where the

representative party submitted that WIBA is everything in practical terms that is contrary

to a responsible system of justice.

[154]

I wish to make it clear that I offer no criticism of the WIBA system. It is one

established by the Kenyan Parliament in 2007 as part of what was a deliberate process of

legislative reform of the existing laws regulating industrial relations across Kenya. The

extent to which it meets the expectations of those who seek to claim compensation under

its provisions is not a matter upon which I require to adjudicate. All I have sought to do is

construe its provisions in light of the evidence I have heard. But, as I have already made

clear, having rejected the defenders' argument that the claims of the group members can

be processed under the provisions of WIBA, the perceived difficulties touched on by the

representative do not arise.

[155]

I am, however, satisfied that, for substantially the reasons set out by Mr Nderitu

and Mr Theuri, there is a real risk that the group members will not obtain substantial justice

were they to have to litigate their individual claims before the ELRC for damages at

common law. That is a conclusion I can only make on the basis of cogent evidence.

Unchallenged evidence is not necessarily cogent evidence. It is nonetheless right to observe

that much of the evidence about not just the resources of the group members but also the

lack of available legal representation was not disputed (save in relation to the procedure

before DOSH). The following findings are material to the conclusion I have reached:

(i)

The group members' duties involve tea harvesting on the defenders' tea

estates. The evidence, derived from the specimen contract, was that tea

harvesters earned about Kshs 11,616/=. Although I was not furnished with

a direct sterling equivalent Mr Nderitu's evidence, which I accept, was that

Kshs 15,000 was worth about £100 at current rates (March 2023). Mr Theuri's

evidence was that a medical report might cost around Kshs 10,000. That

evidence, which I also had no reason to doubt, would suggest that a tea

harvester who was looking to source their own medical report for litigation

purposes would have to spend an entire month's salary to meet the cost of

doing so.

(ii)

Tea harvesters working on the defenders' tea estates were afforded

accommodation but required to purchase their own food. Their

remuneration can properly be described, as it was by Mr Nderitu, as

subsistence pay.

(iii)

It is probable that many of the group members cannot read or write. That

conclusion is consistent with the evidence of both Mr Hutchinson and

Mr Kirui to the effect that about 80% of the defenders' employees were

illiterate in English, and Mr Kirui's evidence that "slightly below" 80% of

those employees were illiterate in Kiswahili. In that respect I preferred their

evidence to that of Professor Muigai, whose evidence that the majority of the

group members would likely be substantially literate was at odds not only

with the more immediate experience of the defenders' witnesses but also the

defenders' own pleadings.

(iv)

It is unlikely that any non-governmental organisation in Kenya would be in a

position to fund litigation of the nature and character of these proceedings in

Kenya.

(v)

Although a Legal Aid Act came into force in Kenya in 2016 it is not yet fully

implemented and the group members are unlikely to be able to secure legal

aid and assistance in representation to advance their claims in Kenya.

(vi)

Contingency fees are prohibited under Kenyan law and group members

would be potentially liable for adverse awards of costs.

(vii)

Although there are provisions within the Kenyan Civil Procedure Rules 2010

which permit a group's interests to be canvassed through a single pursuer or

defender (an example given being where injured passengers on a bus might

seek to bring common claims), there are no provisions equivalent or

comparable to the rules governing group proceedings in Scotland. The group

members' claims do not fall into any of the limited categories of claim which

would allow for the pursuit of such proceedings, there being no formal

procedural basis to enable that to be done.

(viii)

There are few lawyers in Kenya who would have the skills and resources

to handle mass litigation of this kind. For those larger farms which could

theoretically do so, there are likely to be a commercial disincentives because

of (i) the likelihood that such firms would be looking for payment of fees and

disbursements as and when they occurred, and (ii) the commercial

undesirability of litigating against substantial commercial entities in Kenya.

(ix)

In the foregoing circumstances, it is unlikely that the group members would

be able to prosecute their claims, individually or collectively and whether or

not represented, to a conclusion and to secure justice.

[156]

Mr Nderitu made reference to certain systemic features in the Kenyan court system

which were said to give rise to delay. These matters were discussed in the generality and

did not feature significantly in the decision which I have otherwise reached that the

combination of poverty and lack of representation justify Mr Nderitu's conclusion that

should the group proceedings be dismissed the group members would not be able to access

the Kenyan courts and secure substantial justice for their claims. The considerations which

gave rise to his conclusion, and which I accept, far outweigh the justification put forward by

the defenders for the group claimants to advance their claims in Kenya.

[157]

I wish to make it clear that my acceptance of Mr Nderitu's opinion on accessing

justice carries with it no suggestion that the Kenyan courts cannot come to a proper and

considered decision on the group members' claims. But that is not the issue. The issue

is one of accessibility, and what I conceive to be the insuperable difficulties dictated by

circumstances which face the group members in litigating their claims to a conclusion in

court.

[158]

I should nonetheless address the defenders' submission that any application to have

the evidence of witnesses heard remotely from Kenya could only be granted without

objection by the Kenyan state. I have considered carefully the terms of the guidance in

Agbabiaka, supra. That guidance recognises the need to follow a process for securing the

taking of evidence from abroad, and how that might be followed. But the guidance does

not, in my view, constitute evidence that would justify me in deciding ab ante that objection

would be taken by the Kenyan state to the making of such an order. That is especially so in

circumstances where (i) the claimants seek to recover damages from their Scottish domiciled

employer, and (ii) this court has now considered, and determined after evidence, that it does

have jurisdiction to entertain the group proceedings. The assistance I have derived from

the expert evidence on either side at the preliminary proof inspires confidence that the court

will be fully instructed on those further issues of Kenyan law which are likely to arise

during their progression.

[159]

Accordingly, addressing the final issue which I am asked to consider, I am not

satisfied that this court is forum non conveniens.

Conclusion

[160]

In the foregoing circumstances I shall repel the defenders' first and second

pleas-in-law. I shall cause the group proceedings, and both petition processes to which this

opinion also relates, to call by order on a date to be afterwards fixed for consideration of

further procedure. All questions of expenses are meantime reserved.