Tea giants' bid to halt sexual abuse suit fails

The High Court has dismissed a case filed by British-owned Lipton Teas and Infusions PLC and Sri Lanka-based Browns Investments PLC, which sought to stop a trial involving allegations of sexual harassment and HIV/Aids related claims..

Justice Anthony Mrima found that the HIV/Aids Tribunal had powers to hear and settle the case filed by Sammy Kiplang'at Keter and 48 others.

Lipton and Browns had argued that the case ought to have been filed before the Employment and Labour Relations Court. The firms asserted that claims raised before the tribunal were in the context of an employer-employee relationship.

However, Justice Mrima said the case before the Tribunal was clear, and they were seeking redress for alleged atrocities allegedly committed against them.

The judge further stated that human rights violations cannot be time-barred.

"As earlier held, the Tribunal is competently and technically composed to deal with questions as to whether any human rights and freedoms were violated, infringed or threatened with violation. The Tribunal's act also provides for an appellate avenue to the High Court, and a party may even lodge a further appeal to the Court of Appeal. As such, the doctrine of exhaustion does not apply to oust the jurisdiction of the Tribunal in this matter," he said.

Justice Mrima said that a person can invoke the Constitution before a court or a quasi-judicial body.

"Therefore, taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, any issue which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself," he said.

Before the Tribunal, Kiplang'at alleged that some of the tea firms employees were sexually harassed, resulting in alleged infection with HIV/Aids.

At the same time, they accused Lipton and Browns of failure to provide a safe working environment and gender-based discrimination in the assignment of roles.

Nevertheless, Lipton objected, arguing that the issues raised were employment-related. It asserted the Tribunal ought to have found that it had no powers to entertain the case.

"In conclusion it was submitted the impugned ruling was bad in law and ought to be set aside in its entirety," argued Lipton.

Browns, on its end, argued that the case was clear, that the alleged violations were time-barred.

It asserted that the Tribunal has no powers to hear cases on the Bill of Rights. According to Browns, it was illegal for the 49 to pursue a private entity over violation of their rights.

According to the Sri-Lankan firm, claims of Bills of Rights are only enforceable against the State.

Browns asserted that the case before the Tribunal was an abuse of process and ought to be struck out.

The group led by Kiplang'at opposed the case. According to them, Lipton and Browns did not identify any of the constitutional clauses that they have invoked before the Tribunal.

After hearing the rival submissions, Justice Mrima identified four issues to be at the heart of the dispute. He said that he identified the question of whether the tribunal has powers to hear the case; whether raising constitutional issues had compromised the case, if it was time barred and if the tribunal failed to uphold Browns and Liptonarguments based on an earlier precedent in another case against James Finlay and Ekatera Tea Kenya PLC.

They stated that they amended the prayers they were seeking before the Tribunal as such there were no other claims other than those that can be handled by the lower judicial body.

According to them, Section 31 of the HIV/Aids Prevention and Control Act prohibited discrimination at the workplace based on HIV status. Further, they argued that the case before the High Court was meant to stall the hearing of the cases against the two tea giants.

After hearing the rival submissions, Justice Mrima identified four issues to be at the heart of the dispute. He said that he identified the question of whether the tribunal has powers to hear the case; whether raising constitutional issues had compromised the case, if it was time barred and if the tribunal failed to uphold Browns and Liptonarguments based on earlier precedent in another case against James Finlay and Ekatera Tea Kenya PLC.