HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD [2023] ScotCS CSOH_45 (11 July 2023)

HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD [2023] ScotCS CSOH_45 (11 July 2023)

The claims arise from alleged work-related injuries sustained in Kenya by Kenyan residents employed by a Kenyan-operating company. The applicable law is Kenyan law under Rome II. The contracts of employment and collective bargaining agreements incorporate Kenyan law and WIBA, which provides an exclusive statutory scheme for compensation and ousts the jurisdiction of other courts. The Supreme Court of Kenya has confirmed the constitutionality and exclusivity of WIBA. The Scottish court is not the appropriate forum; Kenya is the natural and proper forum for these claims. The practical difficulties and lack of group litigation or legal aid in Kenya do not amount to a denial of substantial...

Citation
[2023] ScotCS CSOH_45
Parties
Representative Party: Hugh Hall Campbell KC; Defenders: James Finlay (Kenya) Limited
Jurisdiction
Scotland
Judgment Date
11 July 2023
Procedural Posture
Group Proceedings (civil) / Preliminary Proof on Jurisdiction and Forum Non Conveniens
Outcome
Action dismissed for want of jurisdiction and/or on grounds of forum non conveniens
Legal Topics
Jurisdiction, Forum Non Conveniens, Work Injury Compensation, Conflict of Laws, Access to Justice
Private International Law Employment Law Tort Law Jurisdiction Forum Non Conveniens Work Injury Compensation Conflict of Laws Access to Justice

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Parties

Hugh Hall Campbell KC

Representative Party

James Finlay (Kenya) Limited

Defenders

Procedural Posture

Group Proceedings (civil) / Preliminary Proof on Jurisdiction and Forum Non Conveniens

Legal Issues

  1. 1 Whether the Scottish court has jurisdiction over the claims against the defenders for work-related injuries sustained in Kenya
  2. 2 Whether Kenyan law and the Work Injury Benefits Act 2007 (WIBA) provide exclusive jurisdiction and remedy for such claims
  3. 3 Whether section 16 of WIBA ousts the jurisdiction of courts in claims arising from occupational accidents or diseases

Ratio Decidendi

The claims arise from alleged work-related injuries sustained in Kenya by Kenyan residents employed by a Kenyan-operating company. The applicable law is Kenyan law under Rome II. The contracts of employment and collective bargaining agreements incorporate Kenyan law and WIBA, which provides an exclusive statutory scheme for compensation and ousts the jurisdiction of other courts. The Supreme Court of Kenya has confirmed the constitutionality and exclusivity of WIBA. The Scottish court is not the appropriate forum; Kenya is the natural and proper forum for these claims. The practical difficulties and lack of group litigation or legal aid in Kenya do not amount to a denial of substantial...

Court Disposition

Action dismissed for want of jurisdiction and/or on grounds of forum non conveniens

Orders

  • The Scottish court declines jurisdiction over the claims.
  • The action is dismissed.