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ELRCStruck OutIndustrial Court cause (Notice of Motion dated 31st July 2012; Memorandum of Claim filed 31st July 2012)· [2012] KEELRC 172 (KLR)

KNK v Alassane Ba & another (Cause 1296 of 2012) [2012] KEELRC 172 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
22 October 2012
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's employment court struck out a senior executive's claim against Shelter Afrique because the organisation and its officials have immunity from legal process under treaty law.

What this practically means

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Executive summary

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The claimant, KNK, Finance Director of Shelter Afrique, filed a Memorandum of Claim and a notice of motion seeking reinstatement, declarations that her suspension on 'special leave' was null and void, injunctions restraining termination, an order compelling the Board to investigate her assault complaint against the Managing Director (1st Respondent), and damages. The Respondents filed a preliminary objection asserting diplomatic immunity under the Privileges and Diplomatic Immunities Act (Cap 179), the Shelter Afrique Act (Cap 493C), the Host Country Agreement of 19th October 1983 and the constituent Charter. The court framed three issues: whether the objection was properly raised, whether a stay pending Constitutional Petition No. 312 of 2012 was warranted, and whether the Respondents were immune. On the first, citing Mukisa Biscuit Co v Westend Distributors Ltd, the court found the objection irregularly brought but, invoking Article 159 against procedural technicalities, proceeded to the merits. On the stay, the court declined for lack of the petition's pleadings. On immunity, the court held that Sections 23 and 24 of the Host Country Agreement confer immunity from legal process on Shelter Afrique and its senior officials, that the agreement forms part of Kenyan law under Article 2(5) and (6) of the Constitution, and that Killeen v ICIPE applied notwithstanding the 2010 Constitution. Any orders would be unenforceable against the immune Respondents. The preliminary objection was allowed, the Memorandum of Claim struck out, the case dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the preliminary objection was properly raised

Holding

The preliminary objection was irregularly brought, but since it had been fully argued and no prejudice would ensue, the court dealt with the substantive issues, guided by the constitutional injunction against procedural technicalities.

Reasoning

Citing Mukisa Biscuit Co v Westend Distributors Ltd, the court found a preliminary objection must rest on facts and documents already on record; the Respondents should first have filed a defence or replying affidavit. Alternatively a striking-out notice of motion could have been used. However, both sides had fully argued the point, the Claimant would suffer no prejudice, and Articles 159(2)(d) and 22(3)(e) discourage undue reliance on procedural technicalities, so the court proceeded to the merits.

p. 5
02

Whether the Respondents enjoy immunity from legal process

Holding

Yes. The Host Country Agreement and constituent Charter, forming part of Kenyan law under Article 2(5) and (6) of the Constitution, confer immunity from legal process on Shelter Afrique and its senior officials, including the 1st Respondent.

Reasoning

Sections 23 and 24 of the Host Country Agreement grant senior officials of Shelter Afrique immunity from legal process for official acts and privileges accorded to ambassadors. The organisation has full juridical personality yet enjoys state-equivalent immunity. Killeen v ICIPE was not distinguished by the 2010 Constitution, since Article 2(5) and (6) incorporates treaties into Kenyan law. Orders made against immune parties would be unenforceable.

p. 7
03

Whether proceedings should be stayed pending Constitutional Petition No. 312 of 2012

Holding

No. The court had not seen the petition's pleadings and could not determine whether it would resolve the immunity issues.

Reasoning

The court had only been shown conservatory orders issued by the High Court on 25th July 2012. Without the pleadings and sufficient information, it could not tell whether the petition would resolve the immunity questions raised in the preliminary objection, so a stay could not issue.

p. 5

Legal principles established

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  • A preliminary objection should be raised on facts and documents already on record after filing of a defence or replying affidavit, per Mukisa Biscuit Co v Westend Distributors Ltd; however courts should not be unduly restricted by procedural technicalities under Article 159(2)(d) of the Constitution
  • Treaty provisions in a Host Country Agreement, by virtue of Article 2(5) and (6) of the Constitution, form part of the laws of Kenya, and where they confer immunity from legal process on an international organisation and its officials, the court's orders would be incapable of execution and the claim must fail

Court orders

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  1. 1.The preliminary objection is allowed
  2. 2.The Memorandum of Claim is struck out and the case is dismissed
  3. 3.Each party shall bear its costs

Authorities

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Legislation

  • Privileges and Diplomatic Immunities ActCap 179; Part I of the Fourth Schedule
  • Shelter Afrique ActCap 493C; Section 3 of the Schedule
  • Constitution of Kenya 2010Article 24; Article 159(1)(d) and 159(2)(d); Article 22(3)(e); Article 2(5) and (6)
  • Vienna Convention on Diplomatic Relations1961 (referred to as 1969)
  • Host Country Agreement between Kenya and Shelter Afrique19th October 1983; Sections 8, 23 and 24; Annex B Clause 2 and 3
  • Convention on the Constituent Charter of Shelter AfriqueArticles 1 and 4

Cases cited (5)

  • Gerald Killeen v International Centre For Insect Physiology & Ecology (ICIPE)
    Civil Case No. 1737 of 2002; [2005] KLR 718 (as IKLR 718)
  • Mukisa Biscuit Co v Westend Distributors Ltd
    (1969) EA 696
  • Trendtex Trading Corporation v Central Bank of Nigeria
    2 WLR (1997) 366
  • Ministry of Defence United Kingdom v Ndegwa
    LLR No. 53 (CAK)
  • Allasane Ba and Director of Public Prosecution and others
Jurisdiction invoked
Employment and labour relations jurisdiction; immunity raised under the Privileges and Diplomatic Immunities Act (Cap 179), the Shelter Afrique Act (Cap 493C) and the Host Country Agreement of 19th October 1983

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KNK v Alassane Ba & another (Cause 1296 of 2012) [2012] KEELRC 172 (KLR)", Case Analysis (2012). Industrial Court cause (Notice of Motion dated 31st July 2012; Memorandum of Claim filed 31st July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/172/eng@2012-10-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.