The Court of Appeal has granted 51 tea plantation workers, most of them women, allegedly infected with HIV/Aids by their managers, a lifeline to pursue justice after a 13-month delay in filing their appeal.
Justice Mohamed Warsame allowed the workers’ application for an extension of time, citing "exceptional circumstances" including missing court files, bureaucratic delays and the logistical nightmare of coordinating with witnesses under State protection.
“... I find that this case presents exceptional circumstances that warrant the exercise of discretion in favour of the applicants (workers),” said Justice Warsame.
The applicants had initially filed a constitutional petition in 2023, accusing Browns Investments PLC and Lipton Teas & Infusions Kenya Ltd of systematic sexual harassment, discrimination and HIV infections through “quid pro quo” harassment by supervisors at their workplace.
“Quid pro quo” harassment is a form of sexual harassment where a person in power, like a supervisor, demands sexual favours in exchange for job benefits, including promotion or to avoid negative consequences like termination or demotion.
The petition detailed chilling allegations related to female workers coerced into sexual relations for job security by line managers, with multiple women testing positive for HIV under suspicious circumstances, painting a grim picture of alleged predator behaviour in the lucrative tea sector.
However, Kericho High Court Judge Joseph Sergon dismissed their case in September 2023, ruling that employment disputes, even those involving constitutional rights, fell exclusively under the Employment and Labour Relations Court.
The workers’ quest to appeal hit immediate roadblocks. According to affidavits, the Kericho High Court registry allegedly misplaced the case file, forcing the applicants to escalate complaints to the Judiciary’s Deputy Registrar, who eventually ensured the Kericho High Court Registry traced the file.
The applicants also complained about delayed copies of the ruling. Despite paying for certified copies, the judge’s proceedings remained "under typing" for months, raising suspicions of deliberate stalling of their pursuit of justice.
Browns Investments fought back, accusing the workers of forum shopping and abuse of process. It said that after losing at the High Court in September 2023, the group filed parallel claims at the HIV & Aids Tribunal in November same year, a case still pending.
Justice Warsame sided with the workers, noting their appeal was arguable and touched on significant issues deserving appellate scrutiny.
Through Ms Evalyne Ngeno, its Manager Legal Services, Browns also argued that the workers exaggerated their claims. The company disputed that all 49 witnesses were under protection, citing records showing only 14 were officially enrolled.
"The delay of over 13 months is inordinate and smacks of abuse of process," argued the legal manager.
At the tribunal, Browns had challenged the Tribunal's jurisdiction through a preliminary objection, but the Tribunal dismissed the application in September 2024. The company filed an appeal against this ruling at the High Court.
Beyond the harrowing allegations, the case raises critical legal questions, such as whether constitutional rights violations in workplaces should only be heard by the Labour Relations court, even when they involve crimes like intentional HIV transmission.
The dispute also touches on access to justice, with the Court of Appeal expected to determine whether procedural delays, especially for vulnerable plaintiffs, bar victims from being heard.
“More fundamentally, the intended appeal raises weighty issues. The issue of whether the High Court lacks jurisdiction to determine applications for redress of violations of fundamental freedoms in the Bill of Rights, or whether such alleged lack of jurisdiction divests the court of power to transfer the matter to the relevant court with jurisdiction, is not a frivolous point of law,” he ruled.
He said: These are matters of significant issues that merit consideration by this court, and I think it is important to give the applicants a chance to canvas their case.
The workers now have 14 days to file their appeal. Meanwhile, the parallel HIV Tribunal case continues, with Browns appealing its jurisdiction argument to the High Court. For the applicants, many battling illnesses, the fight is far from over.
