HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD [2023] ScotCS CSIH_39 (07 November 2023)

HUGH HALL CAMPBELL KC AGAINST JAMES FINLAY (KENYA) LTD [2023] ScotCS CSIH_39 (07 November 2023)

The Scottish courts' jurisdiction is not excluded by prorogation or Kenyan law; however, the claims for musculo-skeletal injuries fall within the ambit of the Kenyan Work Injury Benefits Act 2007, which mandates administrative processing and precludes first instance litigation in the Employment and Labour Relations Court. Kenya is the more appropriate forum, and proceedings in Scotland should be sisted pending resolution under the WIBA scheme.

Citation
[2023] ScotCS CSIH_39
Parties
Representative Party and Respondent: Hugh Hall Campbell KC; Defenders and Reclaimers: James Finlay (Kenya) Limited
Jurisdiction
Scotland
Judgment Date
07 November 2023
Procedural Posture
Group Proceedings (personal Injury) / Appeal (reclaiming Motion) From Preliminary Proof
Outcome
Reclaiming motion allowed in part; proceedings sisted pending resolution of claims under WIBA in Kenya.
Legal Topics
Jurisdiction, Forum Non Conveniens, Prorogation of Jurisdiction, Work Injury Benefits Act (kenya), Group Proceedings, No Fault Compensation
Private International Law Employment Law Personal Injury Jurisdiction Forum Non Conveniens Prorogation of Jurisdiction Work Injury Benefits Act (kenya) Group Proceedings +1 more

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Parties

Hugh Hall Campbell KC

Representative Party and Respondent

James Finlay (Kenya) Limited

Defenders and Reclaimers

Procedural Posture

Group Proceedings (personal Injury) / Appeal (reclaiming Motion) From Preliminary Proof

Legal Issues

  1. 1 Whether Scottish courts have jurisdiction over claims by Kenyan employees against a Scottish domiciled employer
  2. 2 Whether the claims must be processed under the Kenyan Work Injury Benefits Act 2007 (WIBA)
  3. 3 Whether the Scottish court is forum non conveniens

Ratio Decidendi

The Scottish courts' jurisdiction is not excluded by prorogation or Kenyan law; however, the claims for musculo-skeletal injuries fall within the ambit of the Kenyan Work Injury Benefits Act 2007, which mandates administrative processing and precludes first instance litigation in the Employment and Labour Relations Court. Kenya is the more appropriate forum, and proceedings in Scotland should be sisted pending resolution under the WIBA scheme.

Court Disposition

Reclaiming motion allowed in part; proceedings sisted pending resolution of claims under WIBA in Kenya.

Orders

  • Recall interlocutor of Lord Ordinary dated 11 July 2023 in so far as it repels defenders' plea of forum non conveniens.
  • Sist group proceedings pending resolution of claims under WIBA, including appeals to ELRC, in Kenya.