218 Kenyans who worked for Unilever during the 2007/8 post election violence (PEV) period have moved to UK Supreme Court seeking compensation, citing negligence on the part of the company.
The 218 say that the UK headquartered company failed to protect them from the foreseeable risk of ethnic violence on a Unilever tea plantation in in Kericho.
Leigh Day, the law firm acting on behalf of the workers contend that Unilever placed their workers in a position of serious risk because most were from tribes that are not indigenous to the area and so were targets of harassment and violence during periods of social unrest, specifically during elections.
Violence which erupted during in December 2007 following a disputed election spilled over to the Unilever’s Tea Plantation in Kericho which has an estimated residential population of over 100,000.
According to court documents, the number of employees alone represented 11 percent of Unilever’s global workforce, the largest concentration of Unilever employees anywhere in the world.
According to reports then, workers who were not indigenous to the area, together with their families, were targeted with clubs and machetes. Hundreds of workers were attacked, and the attackers committed widespread sexual violence.
“This was the biggest risk to the largest concentration of Unilever workers anywhere in the world. Unilever’s Kenyan tea workers were put in a vulnerable position by Unilever and yet the risk they faced was not considered. The victims are clear that they warned managers about the threats they faced and yet Unilever failed to take measures to protect them, although they did protect management housing and company assets,” says Daniel Leader, solicitor from Leigh Day.
The case was filed in the London High Court in 2015 and Unilever has vigorously fought the case to persuade the English Courts to decline jurisdiction in favour of the Kenyan Courts.
However, the claimants say that having the case in Kenya could place them at significant risk of violence or intimidation.
The High Court initially rejected the majority of Unilever’s arguments and held that there was evidence that the victims would not get justice in Kenya and that Unilever Plc had “assumed apparent control of the content and auditing” of the relevant policies and procedures.
Initially, the judge ruled that in her view the risk of violence was not foreseeable on the Plantation (because there had not been similar violence on the Plantation in the past) although she found that the violence had been foreseeable in Kenya generally and even in Kericho town which borders onto the Plantation.
Lawyers on behalf of the Kenyan workers argue that if violence was foreseeable in Kericho it follows that it was foreseeable on the unfenced plantation which sits right next to the town.
This forced the claimants to move to the Court of Appeal on the grounds that the judge was wrong in law.
The Court of Appeal however declined jurisdiction on the basis that there was insufficient evidence that Unilever Plc was actively responsible for the alleged crisis management failings of its Kenyan subsidiary.
The claimants are currently seeking leave to appeal to the Supreme Court. Grounds of appeal were lodged on 29 August 2018.