KNK v Alassane Ba & another (Cause 1296 of 2012) [2012] KEELRC 172 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly raised
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.
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.
Whether the Respondents enjoy immunity from legal process
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.
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.
Whether proceedings should be stayed pending Constitutional Petition No. 312 of 2012
No. The court had not seen the petition's pleadings and could not determine whether it would resolve the immunity issues.
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.
Legal principles established
#- 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
#- 1.The preliminary objection is allowed
- 2.The Memorandum of Claim is struck out and the case is dismissed
- 3.Each party shall bear its costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.