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Court of AppealDismissedCourt of Appeal Civil Appeal (Nairobi)· [2015] KECA 826 (KLR)

KNK v Alssane Ba & another (Civil Appeal 20 of 2013) [2015] KECA 826 (KLR)

Court of Appeal of Kenya
13 February 2015
7,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that international organisation officials like Shelter Afrique's managing director cannot be sued in Kenyan courts for official acts, even for workplace assault claims.

What this practically means

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Executive summary

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The appellant, an employee of Shelter Afrique, sued the organisation and its Managing Director, Alssane Ba, claiming she was assaulted by him at work in June 2012 and seeking declarations, injunctions and damages. The Industrial Court (M. Onyango J) upheld a preliminary objection that the respondents enjoyed diplomatic immunity under the Privileges and Diplomatic Immunities Act, the Host Country Agreement and the Convention on the Constituent Charter of Shelter Afrique, struck out the memorandum of claim and dismissed the suit. On appeal, the Court of Appeal (Ouko, Kiage and M'Inoti JJA) affirmed. It held that a plea of immunity is a pure point of law properly raised by preliminary objection under the Mukisa Biscuit formulation. On international law, the Court held that by constitutional fiat under Article 2(5) and 2(6), Kenya became monist, and treaties ratified before 2010 form part of Kenyan law for as long as ratification remains in force; there is no pre- and post-2010 demarcation. The treaty obligations Kenya voluntarily assumed - pacta sunt servanda - bound it to grant the respondents immunity, and the Shelter Afrique Act's failure to reproduce those immunities was a derogation. The employment dispute arose from official acts performed at headquarters during official hours, so the restrictive-immunity exception for commercial or private activity did not apply; diplomatic immunity under Article 31 of the Vienna Convention remains unqualified. The immunity was held a legitimate, proportionate limitation of the appellant's Article 48 access-to-justice right. The appeal failed entirely, with each party bearing its own costs.

Key legal issues

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01

Whether a preliminary objection on contested facts was improper

Holding

A plea of immunity is a pure point of law properly raised as a preliminary objection

Reasoning

Applying Mukisa Biscuit, immunity from legal process raises a jurisdictional bar that must be determined in limine before the merits; it assumes the pleaded facts and turns on the law, so no substantive response was required first.

p. 6
02

Status of pre-2010 ratified treaties under Article 2(6)

Holding

Treaties ratified before the 2010 Constitution form part of Kenyan law; no pre/post-2010 distinction is tenable

Reasoning

The constitutional text contains no cut-off point; the Treaty Making and Ratification Act addresses Parliament's role for post-2012 treaties. Kenya moved from dualism to monism by constitutional fiat, so ratified conventions are automatically incorporated.

p. 8
03

Whether the respondents were entitled to immunity

Holding

Yes; the Shelter Afrique Act's silence on immunities was a derogation and the treaty obligations bind Kenya (pacta sunt servanda)

Reasoning

Kenya voluntarily undertook to grant immunities not less favourable than those of other international organisations. The Act's schedule omits immunities from legal process; the treaty obligations remain binding and the respondents were at all material times entitled to immunity.

p. 10
04

Whether the assault and employment dispute fell outside official functions under Article 31(1)(c) of the Vienna Convention

Holding

No; the incident occurred at the premises, during official hours and in the course of official work, so immunity applies

Reasoning

The claim would require interrogation of the internal workings of an international organisation whose headquarters has the status of a foreign mission; such enquiry is an unacceptable interference with the sovereign right to control its own workforce.

p. 10
05

Whether immunity unconstitutionally denied access to justice under Article 48

Holding

No; immunity is a legitimate, proportionate limitation on Article 48 rights

Reasoning

Following Strasbourg jurisprudence including McElhinney v Ireland and the reasoning in Al-Malki v Reyes, generally recognised rules of immunity are inherent limitations on access to court; diplomatic immunity remains unqualified by any 2004 convention ratified by Kenya.

p. 13

Legal principles established

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  • A preliminary objection on a plea of immunity from legal process is a proper threshold issue because it raises a jurisdictional bar
  • Treaties ratified by Kenya before the 2010 Constitution, so long as ratification remains in force, form part of the laws of Kenya under Article 2(6) without a domesticating statute
  • Absolute sovereign immunity is anachronistic; immunity is restrictive or qualified so that commercial or private acts are not immunized, but official acts of diplomatic officers remain immune
  • Diplomatic immunity under Article 31 of the Vienna Convention is a legitimate limitation on the right of access to justice under Article 48

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Privileges and Diplomatic Immunities Act (Cap 179, Laws of Kenya)Sections 4, 9, 23, 24; Part II; First Schedule
  • Constitution of Kenya, 2010Articles 2(5), 2(6), 48, 94(1), 159(2)(a)
  • Shelter Afrique Act (Cap 493C)Section 3 and Schedule; preamble
  • Treaty Making and Ratification Act, No. 45 of 2012Section 3(1)
  • Civil Procedure ActSection 40
  • Host Country Agreement (Headquarters Agreement) between Shelter Afrique and the Government of Kenya, 19 October 1983Articles XI (paragraph 23), 24
  • Convention on the Constituent Charter of Shelter Afrique (Lusaka, 1982)Article 1
  • Vienna Convention on Diplomatic Relations, 1961Articles 2, 31
  • Memorandum of Understanding on the Establishment of an African Housing Development and Finance (1981)Privileges and immunities clause
  • International Covenant on Civil and Political RightsArticle 11
  • European Convention on Human RightsArticle 6(1)
  • Convention on Jurisdictional Immunities of States and their Property (2004)Article 11

Cases cited (22)

  • Mukisa Biscuit Co. Vs. Westend Distributors Ltd
    1969 EA 969
  • East African Community Vs. Republic
    [1970] EA 457
  • David Njoroge Macharia Vs. Republic
    [2011] eKLR
  • Rono Vs. Rono
    [2005] 1 KLR 538
  • Diamond Trust Kenya Ltd Vs. Daniel Mwema Mulwa
    HCCC No. 70 of 2002
  • Beatrice Wanjiku & Anor Vs. Attorney General & Anor
    [2012] eKLR
  • Rosemary Moraa & Anor Vs. Attorney General
    [2006] eKLR
  • Ministry of Defence of the Government of the United Kingdom Vs. Ndegwa
    [1983] KLR 68
  • Trendex Trading Corporation Vs. Central Bank of Nigeria
    [1977] 1 QB 529
  • Tononoka Steels Ltd Vs. The Eastern and Southern Africa Trade and Development Bank
    [2000] 2 EA 536
  • Propend Finance Vs. Sing
    [1987] ILR 611
  • Zoernsch Vs. Waldock & Anor
    [1964] 2 All E.R. 256
  • Bentley Vs. Consulate General of Barbados/Invest Barbados
    2010 HCR to 2258 (CanLII)
  • Re Canada Labour Code
    [1992] 2 S.C.R. 50
  • Fogarty Vs. United Kingdom
    [2002] 34 EHRR 12
  • Cudak Vs. Lithuania
    [2010] 51 EHRR 15
  • Sabeh El Leil Vs. France
    (2012) 54 EHRR 14
  • McElhinney Vs. Ireland
    Application No. 31253/96
  • Al-Malki & Anor Vs. Reyes & Anor
    UK EAT/0403/12/6E
  • Elkana Khamisi Samarere & Anor Vs. The Nigerian High Commission
    Industrial Court Cause No. 1464 of 2011
  • Aldona S. Vs. Royaume Uni
    (JDI 1963) 191
  • Empire of Iran
    45 ILR 57
On appeal from
Industrial Court (Employment and Labour Relations Court)
null
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute; decision under review is that of the Industrial Court

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, "KNK v Alssane Ba & another (Civil Appeal 20 of 2013) [2015] KECA 826 (KLR)", Case Analysis (2015). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/826/eng@2015-03-13

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