The International Committee of The Red Cross v Caroline Khamali Mose (suing As Personal Representative of The Estate of Haron Amani Lusiri) & 1 other

International law has shifted from absolute to restrictive or functional immunity. The test is whether the acts complained of were governmental in nature or arose in a private or commercial capacity. The appellant's counsel conceded the immunity was functional. Because the appellant did not plead or show that its driver acted in furtherance of official functions, immunity was unavailable on the facts.

Applying the Mukisa Biscuit definition, a preliminary objection is a pure point of law that assumes the correctness of all pleaded facts. The appellant's defence under protest merely denied liability without pleading official duty. Without such factual foundation, allowing the objection would cloak private conduct with immunity without factual inquiry.

The Court found it unnecessary to pronounce on whether a ministerial certificate was indispensable, since the real question was whether immunity could be raised as a preliminary objection on the material before the trial court. It therefore affirmed the High Court's outcome but expressly departed from the learned Judge's reasoning resting the decision on the absence of a certificate.

Article 43(2)(b) of the Vienna Convention excludes immunity for civil actions arising from motor vehicle accidents in the receiving state. The Court noted that while not directly binding on international organizations in all cases, the provision illustrates the restrictive approach to immunity for private law claims, and that the Convention is part of Kenyan law under Article 2(6) of the Constitution and sections 5 and the second schedule to the Act.