Hundreds of former employees of British-Dutch multi-national consumer goods giant Unilever Plc have been granted permission to appeal a case in which they are seeking damages from the company’s Kenyan subsidiary Unilever Tea Kenya at the British Supreme Court.
The tea workers had earlier suffered a blow after losing their appeal at the UK High Court and subsequently at the UK Appeals Court in a case in which they allege that Unilever Tea Kenya failed to protect them from the ethnic violence in 2007.
The tea workers accuse the Kericho-based UK company of “failing to discharge a duty of care” to take “adequate steps to protect them from violence” following the contested election of 2007, which saw a wave of violence sweep across Kenya.
Over 1,300 people were killed at the time while many more were injured and there was widespread damage to property.
The 218 claimants include the families of 11 victims who were brutally killed in the violence and a large number of people who suffered serious violent attacks, including gang rape.
They allege that Unilever had placed their workers in a position of “serious risk” because many of the workers were from tribes which were not local to the area, so were specific targets of violence from the majority tribe at times of social unrest.
The claimants also allege that the relevant “crisis management expertise” resided in Unilever PLC and that these experts were responsible for ensuring that proper procedures were in place in Unilever Tea Kenya and that people were trained.
Under English law, a duty of care arises where there is “proximity, foreseeability and where it is fair, just and reasonable to impose such a duty.”
The UK Court of Appeal however upheld a ruling by the High Court that the tea producer “owed no duty of care” in relation to the operations of its Kenyan subsidiary.
The Court of Appeal judges further reasoned, that “if there is to be a trial, it will have to take place in Kenya”.
They added that in such circumstances, the Kenyan courts would be “better placed to determine issues of foreseeability and what was fair, just and reasonable in a Kenyan context.”
The Court of Appeal dismissed the claimants appeal on the basis that there was “insufficient” proximity between the claimants and Unilever.
It stated that the claimants were “nowhere near” being able to show that they had a good arguable claim against Unilever.
Ahead of the ruling, four UK Human rights groups had piled pressure on the multinational urging it to take responsibility and reconsider the way it is dealing with the case.
The lobbies included REDRESS, the African Coalition for Corporate Accountability (ACCA), CORE and Kituo Cha Sheria.
In February last year the British High Court ruled in favour of Unilever and its Kenyan subsidiary.