Embassy of Sweden Nairobi v Kusewa & another
The bottom line
#Kenya's Court of Appeal confirmed that locally employed embassy staff can sue their employer in the Employment and Labour Relations Court despite claims of diplomatic immunity.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant, a foreign mission (not a diplomatic agent), can invoke immunity under section 4 of the Privileges and Immunities Act and Article 31 of the Vienna Convention on Diplomatic Relations
The appellant is the foreign mission, not a diplomatic agent, but this alone does not resolve the jurisdictional question, which turns on the restrictive immunity doctrine.
The court examined section 4 of the Privileges and Immunities Act which domesticates the Vienna Convention on Diplomatic Relations, and Article 31 which grants immunity to a 'diplomatic agent'. Article 1 defines a diplomatic agent as the head of mission or a member of the diplomatic staff. The record showed the appellant pleaded immunity as the mission itself, not as an agent, so the Convention provisions did not squarely cover it, though the broader jurisdictional question remained.
Whether absolute or restrictive immunity applies to foreign states and missions in Kenya
Restrictive immunity applies; absolute immunity is anachronistic and immunity depends on whether the act was governmental (jure imperii) or private (jure gestionis).
The court traced Kenyan authority from Alfred Kioko Muteti through Unicom Limited v Ghana High Commission, Ministry of Defence v Joel Ndegwa, Telaso Lepalat and the Supreme Court's Karen Njeri Kandie decision, all endorsing restrictive immunity. The UN Convention on Jurisdictional Immunities 2004, though unratified, embodies accepted general principles of international law applicable under Article 2(5) of the Constitution, and its Articles 10-14 restrict immunity for commercial transactions and employment contracts.
Whether restrictive immunity applies to employment contracts of locally engaged staff of a foreign mission
Employment contracts belong to the private law domain; state immunity does not apply, and locally employed staff may sue in the ELRC.
Relying on comparative jurisprudence (Cudak v Lithuania, Dube v American Embassy, Sebina v South Africa High Commission) and Article 11 of the UN Convention, which removes employment contracts from immunity, the court held that employment matters fall under private law. The respondents were locally employed, were not diplomatic agents or persons exercising governmental authority, and their contracts were therefore subject to the ELRC's jurisdiction.
Legal principles established
#- The Court of Appeal binds the ELRC and High Court: locally employed staff of a foreign diplomatic mission may sue the mission in the ELRC because employment contracts fall within the private law domain where state/diplomatic immunity is restricted.
- Although the UN Convention on Jurisdictional Immunities of States 2004 is not ratified by Kenya, its principles apply as accepted general principles of international law under Article 2(5) of the Constitution.
- There is no absolute immunity for foreign states and missions in Kenya; immunity is restrictive and depends on the nature of the act.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 2193 of 2015 Consolidated with ELRC Cause No. 2194 of 2015
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the ELRC (Article 164(1A) of the Constitution; appeal against ruling dismissing a jurisdictional application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Embassy of Sweden Nairobi v Kusewa & another", Case Analysis (2020). Civil Appeal 345 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/954/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.