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Court of AppealAllowedNot stated in the judgment· [1983] KECA 40 (KLR)

Ministry of Defence of the Government of the United Kingdom v Ndegwa (Civil Appeal 31 of 1982) [1983] KECA 40 (KLR)

Court of Appeal of Kenya
18 March 1983
ELE.J.E LawAHA.R.W HancoxZCZ.R Chesoni
3,378 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that foreign governments cannot be sued in Kenyan courts for official acts unless they agree to it.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nairobi on 18 March 1983 (Law JA, Hancox JA and Chesoni Ag JA), allowed an appeal against a ruling of O'Kubasu J at Nyeri refusing to strike out proceedings against the second defendant, the Ministry of Defence Claims Commission (UK). The underlying suit claimed damages for negligence arising from a road accident allegedly caused by the first defendant, a British soldier, driving as servant or agent of the second defendant. The second defendant applied to be struck out on the ground of foreign sovereign immunity, supported by an unchallenged affidavit of Colonel Prestige deponing that it had no legal entity separate from the Government of the United Kingdom, which did not consent to be sued. The High Court held the Claims Commission was distinct from the Ministry of Defence and dismissed the application. The Court of Appeal held that finding was wholly unsupported by evidence and could not stand. Adopting the restrictive doctrine of sovereign immunity from the English authorities (Thai-Europe, Trendtex, I Congreso, Czarnikow, Planmount, Mighell and The Cristina), the court held that immunity is not absolute but depends on whether the act was governmental or private; here vicarious liability would arise from a governmental act, and absent waiver or consent the Kenyan courts could not entertain the claim. The appeal was allowed, the High Court ruling set aside, the second defendant struck out, and costs of the appeal and the application awarded to the second defendant. The decision establishes that Kenyan courts will not implead a foreign sovereign except by consent, save for private or commercial acts.

Key legal issues

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01

Identity of the second defendant as an emanation of the UK Government

Holding

On uncontradicted affidavit evidence, the Ministry of Defence Claims Commission (UK) is a department of the UK Ministry of Defence and part of the UK Government, a foreign sovereign state.

Reasoning

Colonel Prestige's unchallenged affidavit deponed that the second defendant had no legal entity separate from the UK Government. The respondent filed no replying affidavit; counsel's submissions have no evidentiary value. The plaintiff's own description of the first defendant as a 'Ministry of Defence employee overseas' confirmed his awareness of the relationship from the outset.

p. 6
02

Applicability of restrictive sovereign immunity

Holding

Immunity is restrictive and depends on the nature of the act; a claim founded on vicarious liability for an employee acting in the course of employment is a governmental act attracting immunity.

Reasoning

Relying on Trendtex, I Congreso, Czarnikow and Planmount, the court held that the test is whether the foreign sovereign acted in a governmental or private capacity. Here the alleged vicarious liability of the second defendant, if any, would arise from the first defendant acting in the course of his employment - a governmental capacity - so immunity applies.

p. 3
03

Effect of absence of consent or waiver

Holding

Since the UK Government neither waived immunity nor consented to be sued, the proceedings against the second defendant must be struck out.

Reasoning

Both judgments found there was no submission to jurisdiction. The High Court judge's contrary finding rested on an evidentially unsupported distinction between the Claims Commission and the Ministry of Defence, and could not stand.

p. 4

Legal principles established

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  • Kenyan courts will not entertain an action against a foreign sovereign state unless the immunity is waived or the state consents to submit to the jurisdiction.
  • Sovereign immunity is restrictive, not absolute: it protects only governmental acts, not private or commercial transactions.
  • Courts of one country have no jurisdiction over an independent foreign sovereign of another country unless he submits to the jurisdiction.

Court orders

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  1. 1.Appeal allowed
  2. 2.High Court ruling dismissing the striking-out application set aside
  3. 3.Second defendant struck out from the proceedings
  4. 4.Costs of the appeal and of the application in the High Court awarded to the second defendant, to be paid by the respondent plaintiff
On appeal from
High Court of Kenya at Nyeri
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court (ruling on an application under order VI rule 13 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ministry of Defence of the Government of the United Kingdom v Ndegwa (Civil Appeal 31 of 1982) [1983] KECA 40 (KLR)", Case Analysis (1983). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/40/eng@1983-03-18

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