African Trade Insurance Agency (ATI) v Otieno & another
The bottom line
#Kenya's Court of Appeal ruled that the African Trade Insurance Agency is immune from employment lawsuits, so its former employee must use internal dispute channels instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
Yes; the material facts were undisputed and the controversy was purely the legal consequence of immunity on jurisdiction.
The court noted it was common ground that ATI was established under the ATI Treaty, that Kenya enacted Legal Notice No. 89 of 2001 under the Privileges and Immunities Act, that immunity had not been waived, and that the dispute arose from employment. Since no facts needed ascertainment and no discretion was involved, the objection met the Mukisa Biscuit threshold and was properly a preliminary point.
Whether the law expressly bars legal proceedings against the appellant in personnel matters
Yes; Article 16(1)(b) of the ATI Treaty, given force of law by the Privileges and Immunities Act and Legal Notice No. 89 of 2001, bars proceedings in personnel matters, and the constitutional declarations sought were ancillary to the employment dispute.
The court examined Article 16(1) of the ATI Treaty and held the appellant immune from legal proceedings in personnel matters. Although the petition framed constitutional challenges to the immunity instruments, the court looked at substance: the reliefs all flowed from termination of employment. Relying on Kandie and pacta sunt servanda, it held Kenya could not resile from its immunity undertakings, and the trial judge erred in deferring the immunity question to full hearing.
Whether the 1st respondent was bound to exhaust internal dispute resolution mechanisms
Yes; the ATI Treaty, Staff Manual and contract prescribed exclusive internal mechanisms which were not shown to be unavailable or ineffective.
Clause 16 of the renewal letter required disputes to be resolved exclusively under the ATI Agreement and Staff Manual, and Article 19(2) of the Treaty provides dispute settlement procedures. The court found the respondent did not demonstrate those procedures were unavailable or ineffective, so he was required to exhaust them before invoking the ELRC's jurisdiction.
Legal principles established
#- A preliminary objection on immunity from legal process is a pure point of law properly determined in limine as a jurisdictional bar.
- Treaty-based immunity of international organisations covering personnel matters bars domestic court proceedings in employment disputes unless waived.
- The right of access to justice under Article 48 is not absolute and may be limited by immunity conferred to meet international law obligations.
- Where an employment contract prescribes an exclusive internal dispute resolution mechanism, the employee must exhaust it before invoking the jurisdiction of the ELRC.
Court orders
#- 1.Appeal allowed
- 2.Ruling dated 25th October 2019 dismissing the appellant's preliminary objection dated 24th May 2019 set aside and substituted with an order allowing the preliminary objection
- 3.Each party shall bear its own costs
- On appeal from
- Employment and Labour Relations Court
- ELRC Petition No. 85 of 2019
- Jurisdiction invoked
- First appeal from the ELRC ruling dismissing a preliminary objection; appellate jurisdiction of the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Trade Insurance Agency (ATI) v Otieno & another", Case Analysis (2026). Civil Appeal 57 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1914/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.