Embassy of Sweden, Nairobi v Kusewa & another (Civil Application E002 of 2020) [2026] KECA 1122 (KLR)
The bottom line
#Kenya's Court of Appeal allowed the Swedish Embassy to take a diplomatic immunity employment dispute to the Supreme Court, but refused to pause the ongoing employment case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has established an issue to certify as involving a matter of general public importance for purposes of appeal to the Supreme Court
- 2.Whether the Court should grant an order of stay of proceedings of the suits pending before the ELRC
Key legal issues
#Whether the intended appeal raises a matter of general public importance warranting certification under Article 163(4)(b)
Yes. The unsettled question whether employment at an embassy is a commercial activity capable of displacing diplomatic immunity transcends the parties and bears significantly on the public interest, particularly for all foreign missions operating in Kenya.
The Court found that the Supreme Court in Karen Njeri Kandie v Alassane Ba did not squarely settle whether employment contracts with locally engaged staff constitute commercial activity displacing sovereign immunity. The issue had been traversed before the ELRC and the Court of Appeal, amounting to a substantial point of law whose determination would significantly bear on the public interest. The conflicting opinions of the Court of Appeal on the issue reinforced the conclusion.
Whether the Court should stay the ELRC proceedings pending the intended Supreme Court appeal
No. The Court lacked jurisdiction under rule 5(2)(b) because no notice of appeal in respect of a pending appeal before the Court had been lodged.
Rule 5(2)(b) applies only where a notice of appeal has been lodged under rule 77 in circumstances of a preferred appeal before the Court of Appeal. That was not the case here, so the stay of proceedings prayer fell outside the Court's jurisdiction and was declined.
Legal principles established
#- Certification under Article 163(4)(b) requires that the intending appellant demonstrate that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest, and that where a point of law is raised it must be a substantial one.
- Whether a matter is one of general public importance is determined on a case-to-case basis guided by the peculiar facts of each case.
- An application for certification under Rule 42 of the Court of Appeal Rules must be made within 14 days from the date of the decision sought to be appealed against, subject to extension of time.
- The Court of Appeal has no jurisdiction under rule 5(2)(b) of its Rules to stay proceedings in a subordinate court where no notice of appeal in respect of a pending appeal before it has been lodged.
Court orders
#- 1.Certification of the applicant's proposed appeal to the Supreme Court as raising a matter and point of law of general public importance, namely whether a person's employment at an embassy falls within the ordinary functions of a diplomatic mission or constitutes a commercial activity capable of displacing diplomatic immunity
- 2.Grant of leave to the applicant to appeal to the Supreme Court against the Judgment and Orders in Nairobi Civil Appeal No. 345 of 2017 dated 24th April 2020
- 3.Refusal of the prayer for stay of proceedings before the ELRC
- 4.Costs of the application to abide the outcome of the intended appeal in the Supreme Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC No. 2193 of 2015 and ELRC No. 2194 of 2015
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Rules 5(2)(b), 42, 44 and 45 of the Court of Appeal Rules, 2022; leave granted by Musinga, JA (President) on 18th July 2025
Relief refused
#Stay of proceedings in ELRC No. 2193 of 2015 and ELRC No. 2194 of 2015 pending the intended appeal to the Supreme Court
The Court lacked jurisdiction under rule 5(2)(b) of the Court of Appeal Rules as there was no notice of appeal in respect of a pending appeal before the Court
Costs
The costs of the application will abide the outcome of the intended appeal in the Supreme Court.
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.
In the premise, we certify the applicant's proposed appeal to the Supreme Court of Kenya as raising a matter and point of law of general public importance being, whether a person's employment (such as the respondents in the instant application) at the embassy falls within the ordinary functions of a diplomatic mission or constitutes a commercial activity capable of displacing diplomatic immunity, and on this basis, grant the applicant leave to appeal to the Supreme Court of Kenya against the Judgment and Orders of this Honourable Court in Nairobi Civil Appeal No. 345 of 2017 (W. Karanja, H. Okwengu & F. Sichale, JJ.A) dated 24th April 2020.
As urged for the respondents, we lack the requisite jurisdiction purportedly under rule 5 (2) (b) of the Rules of this Court (and as invoked for the applicant) to grant an order of stay of proceedings of the suits pending before the ELRC especially in view that there is no notice of appeal with respect to a conceivably pending appeal before this Court.
Indeed, that specific issue was not specifically before the Supreme Court in that decided case and it appears to be unsettled.
The costs of the application will abide the outcome of the intended appeal in the Supreme Court.
Issues in the judgment
#The judgment is dated 12th June 2026 but the hearing date recorded is 24th February 2026 and the certification leave was granted by Musinga, JA on 18th July 2025, while the appeal under challenge was decided on 24th April 2020 and the underlying application is dated 30th July 2025 - the chronology is internally consistent, but the Rule 42 requirement of filing within 14 days of the decision required extension of time spanning over five years, which the Court notes only in passing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Embassy of Sweden, Nairobi v Kusewa & another (Civil Application E002 of 2020) [2026] KECA 1122 (KLR)", Case Analysis (2026). Rule 42 Certification Application arising from Nairobi Civil Appeal No. 345 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1122/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.