Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 2 of 2015

Kandie v Ba & another (Petition 2 of 2015) [2017] KESC 13 (KLR)

Supreme Court of Kenya
28 July 2017
10,915 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

#

International officials in Kenya have limited, not absolute, immunity; your right to sue may be restricted.

What this practically means

#

The Supreme Court ruled that international treaties Kenya ratified before 2010 are part of Kenyan law. Officials of international organizations like Shelter Afrique have immunity only for official acts, not personal ones. This immunity can be waived by their organization. While it limits your right to sue, that limit is allowed because Kenya must honour its international promises.

Executive summary

#
The appellant, a former employee of Shelter Afrique, alleged she was assaulted by the Managing Director at work and subsequently sent on special leave. She filed a petition at the Industrial Court, but the respondents raised a preliminary objection based on diplomatic immunity. The Industrial Court upheld the objection and struck out the suit. The Court of Appeal affirmed, holding that the respondents enjoyed immunity under international treaties ratified by Kenya, which form part of Kenyan law under Article 2(6) of the Constitution. The appellant appealed to the Supreme Court under Article 163(4)(a). The Supreme Court dismissed the appeal. It held that Article 2(6) applies retrospectively to treaties ratified before the 2010 Constitution, as the language does not distinguish between pre- and post-2010 treaties. The Court found that the respondents' immunity, derived from the Host Country Agreement and the Charter of Shelter Afrique, is not absolute but functional, limited to official acts and subject to waiver. The Court further held that this immunity constitutes a reasonable and justifiable limitation on the appellant's right of access to justice under Article 48, as it serves Kenya's international obligations and is not disproportionate. The Court declined to address the appellant's claims under Articles 25 and 50 (fair trial and fair hearing) as these were not raised in the lower courts. Each party was ordered to bear its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.What is the proper interpretation to be accorded to article 2(6) of the Constitution and its effects thereof in the circumstances of the present case?
  2. 2.Whether the 1st and 2nd respondents enjoyed absolute immunity.
  3. 3.Whether the privileges and immunities conferred upon the respondents, if any, are justifiable limitations under article 24 of the Constitution of the appellant’s rights to fair trial, fair hearing and access to justice under articles 25, 50 and 48 of the Constitution, respectively.

Key legal issues

#
01

Whether article 2(6) of the Constitution applies retrospectively to treaties ratified before 2010.

Holding

Article 2(6) applies retrospectively; treaties ratified before 2010 form part of Kenyan law if they remain unrevoked.

Reasoning

The Court held that the language of article 2(6) does not distinguish between treaties ratified before or after the 2010 Constitution. It commands that 'any treaty or convention that Kenya has ratified becomes part of the laws of Kenya.' The Court relied on its earlier decision in Samuel Kamau Macharia, which stated that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. The Court also noted that section 7(1) of the Sixth Schedule requires all pre-existing law to be construed to conform with the Constitution, supporting retrospective application.

02

Whether the 1st and 2nd respondents enjoyed absolute immunity from legal processes.

Holding

The respondents do not enjoy absolute immunity; the immunity is functional and limited to official acts, and can be waived.

Reasoning

The Court analyzed the Host Country Agreement, particularly sections 23 and 24, which grant immunity from legal process only for acts performed in an official capacity and immunity from personal arrest or detention. The Court distinguished between absolute immunity and qualified/restricted immunity, noting that the preamble to the Vienna Convention on Diplomatic Relations confirms that immunity is to ensure efficient performance of functions, not to benefit individuals. The Court also noted that the Managing Director or the Board can waive the immunity, which would not be possible if it were absolute.

03

Whether the respondents' immunity is a justifiable limitation on the appellant's right of access to justice under article 48 of the Constitution.

Holding

The limitation is reasonable and justifiable under article 24 of the Constitution.

Reasoning

The Court applied the 'reasonable and justifiable' test from article 24, considering factors such as the nature of the right, the importance of the limitation's purpose, and proportionality. It found that the right of access to justice under article 48 is not absolute (unlike the non-derogable rights under article 25). The limitation serves the legitimate aim of fulfilling Kenya's international obligations and allowing diplomatic missions and their employees to carry out their functions effectively. The Court balanced the appellant's right against Kenya's international obligations and concluded that the limitation is not disproportionate.

Legal principles established

#
  • Treaties Kenya ratified before the 2010 Constitution automatically become Kenyan law if still in force.
  • Immunity for international officials is functional – it only covers official duties, not personal misconduct.
  • An organization’s managing director or board can waive an official’s immunity, allowing a lawsuit.
  • Limiting access to court is acceptable if it helps Kenya meet its international obligations and is not extreme.
  • The right to access justice is not absolute; it can be restricted for legitimate international law reasons.

Court orders

#
  1. 1.The petition dated March 24, 2015 is hereby dismissed.
  2. 2.The Judgment and orders of the Court of Appeal (Ouko, Kiage and M’Inoti JJA) delivered on February 13, 2015 are upheld.
  3. 3.The parties shall each bear their respective costs.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. L. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 20 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

#

Setting aside the Court of Appeal judgment and allowing the appeal

The Supreme Court upheld the Court of Appeal's finding that the respondents enjoy immunity from legal processes, which is a justifiable limitation on the appellant's right of access to justice.

Costs

The parties shall each bear their respective costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

our reading of article 2(6) of the Constitution can only lead to the conclusion that there is no bar to its provisions being applied retrospectively.
p. 14 Retrospective application of Article 2(6)
the immunity conferred upon the respondents is not absolute because in the instance of the 1st respondent, it is only limited to actions related to official functions, and his arrest and detention at the instance of the 2nd respondent, the Managing Director or the Board, may waive the immunity.
p. 20 Functional immunity not absolute
the conferment of immunity for the purposes of Kenya upholding its international law obligations, is to that extent, a reasonable and justifiable limitation of the right to access justice as provided under article 48 of the Constitution
p. 24 Justifiable limitation on access to justice
The petition dated March 24, 2015 is hereby dismissed.
p. 24 Final order dismissing the appeal
The parties shall each bear their respective costs.
p. 24 Costs order

Key timeline

#
Before 2010
Kenya ratified treaties including the Shelter Afrique Charter and Host Country Agreement.
2010-08-27
Kenya’s new Constitution took effect, making ratified treaties part of Kenyan law under Article 2(6).
2015-02-13
Court of Appeal upheld immunity for Shelter Afrique officials, dismissing the employee’s case.
2015-03-24
Employee filed a petition at the Supreme Court challenging the immunity ruling.
2017
Supreme Court dismissed the petition, affirming that functional immunity limits access to justice justifiably.

Practical implications

#
For lawyers

Raise immunity defenses carefully

When representing an international organization or its official, argue that immunity is functional, not absolute. Provide evidence that the alleged act was within official duties. Also note that waiver is possible – if your client’s board or managing director agrees, immunity can be lifted. This ruling gives you a clear framework to test immunity at the preliminary stage.

For businesses

Check immunity before suing international bodies

If you have a dispute with an international organization or its staff in Kenya, know that immunity may block your case. But it is not automatic – the organization can waive it. Before filing suit, ask the organization to waive immunity or confirm the act was personal. Also, review the relevant treaty or host agreement to see the exact scope of immunity.

For individuals

Your right to sue may be limited by treaties

If you are harmed by an employee of an international organization (like Shelter Afrique), you might not be able to sue them in Kenyan courts if the act was part of their job. However, you can ask the organization to waive immunity. Also, if the act was personal (not official), immunity does not apply. This ruling confirms that your right to access justice is not absolute.

Frequently asked questions

#
Does Kenya’s Constitution apply to treaties signed before 2010?+

Yes. The Supreme Court ruled that Article 2(6) of the Constitution applies retrospectively. Any treaty Kenya ratified before 2010 is part of Kenyan law, as long as it has not been revoked, recalled, or suspended.

Can I sue an international organization in Kenya?+

It depends. International organizations and their officials usually have immunity, but it is limited to official functions. If the act was personal or the organization waives immunity, you may sue. Otherwise, your case may be dismissed.

What is functional immunity in Kenya?+

Functional immunity means an international official is protected from lawsuits only for acts done in their official capacity. Personal acts, like assault unrelated to duties, are not covered. The organization can also waive this immunity.

Is the right to access justice absolute in Kenya?+

No. The Supreme Court confirmed that the right to access justice under Article 48 can be limited if the limitation is reasonable and justifiable. Honouring international obligations, like granting functional immunity, is a valid reason to limit that right.

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kandie v Ba & another (Petition 2 of 2015) [2017] KESC 13 (KLR)", Case Analysis (2017). Petition 2 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/13/eng@2017-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.