Githongo & 3 others (The Administrators of the Estate of Joseph Muiruri Githongo - Deceased) v Government of the United States of America (Environment and Land Case Civil Suit 5 of 2022) [2023] KEELC 370 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a suit against the United States because a foreign state can only be sued or served with documents through diplomatic channels.
What this practically means
#Executive summary
#Key legal issues
#Properness of service by email on a foreign state
Service by email drawn from the state's public website was improper; Order 5 rule 22 CPR is inapplicable to a foreign sovereign, and service must go through diplomatic channels per customary international law and the Vienna Convention.
Counsel wrongly construed service rules as applying equally to foreign sovereigns. The doctrine of sovereign immunity dictates that a foreign state be summoned through diplomatic channels or means agreed between the states. Email service to an address found on a website does not satisfy this standard and was therefore invalid.
Jurisdiction over a foreign sovereign and waiver of immunity
Although the Defendant submitted to Kenyan jurisdiction in Civil Appeal No. 27 of 1999, that submission did not extend to this fresh suit; the limitation question raises a new cause of action requiring fresh waiver.
The Court of Appeal became functus officio upon delivering judgment, so the present suit is not a continuation or counterclaim in those proceedings. The question whether execution is time-barred under section 4(4) of the Limitation of Actions Act is a new issue. Without express waiver in this suit, the court lacks jurisdiction, and immunity is a justifiable limitation of Article 48.
Legal principles established
#- Service on a foreign sovereign state must be effected through diplomatic channels, not by email to a publicly displayed address
- Submission to jurisdiction in a prior suit does not amount to waiver of immunity in a fresh, distinct suit; a new cause of action requires fresh consent or waiver
- Immunity is a justifiable limitation of the right of access to justice under Article 48
Court orders
#- 1.The suit is struck out for want of jurisdiction
- 2.No orders as to costs
- Jurisdiction invoked
- Article 48 of the Constitution discussed on limitation of access to justice; Privileges and Immunities Act (Cap 179) adopting the Vienna Convention on Diplomatic Relations governs sovereign immunity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githongo & 3 others (The Administrators of the Estate of Joseph Muiruri Githongo - Deceased) v Government of the United States of America (Environment and Land Case Civil Suit 5 of 2022) [2023] KEELC 370 (KLR)", Case Analysis (2023). ELC SUIT NO. OS 5 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/370/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.