Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2013] KEELRC 331 (KLR)

ELKANA KHAMISI SAMARERE & another v NIGERIAN HIGH COMMISSION [2013] KEELRC 331 (KLR)

Industrial Court of Kenya
9 May 2013
JRJames Rika
614 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Two Claimants employed by the Nigerian High Commission as Groundsmen from 14th January 1999 were summarily dismissed on 14th July 2005. They filed a claim on 29th August 2011 alleging unfair dismissal - that no reasons were given, no hearing afforded, and terminal benefits unpaid - and sought terminal benefits and damages. The Nigerian High Commission filed no Statement of Reply and did not attend the hearing, declining to submit to the jurisdiction of the Industrial Court of Kenya. On 5th April 2013, counsel for the Claimants asked the Court first to rule on its own jurisdiction. The Court held that the Nigerian High Commission represents a foreign sovereign enjoying immunity from Kenya's Criminal, Civil, Labour and Administrative jurisdiction, and that only the Republic of Nigeria could expressly waive that immunity; the Industrial Court assuming jurisdiction would violate Article 32 of the Vienna Convention on Diplomatic Relations and the principles of sovereign equality of States. The Court observed that although restrictive State immunity has evolved under customary international law - exemplified by Australia's Foreign States Immunities Act 1985 and the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 - Kenya has no such legislation, and the UN Convention is not in force and cannot be received as a source of Kenyan law. In any event, the claim was filed outside the 3-year limitation period under section 90 of the Employment Act 2007, and that Act did not apply to a dismissal predating its commencement. The claim was dismissed with no order on costs, dated and delivered at Nairobi on 9th May 2013 by James Rika, Judge.

Key legal issues

#
01

Diplomatic and State immunity of the Nigerian High Commission

Holding

The High Commission enjoys immunity from the Criminal, Civil, Labour and Administrative jurisdiction of Kenya; the Industrial Court cannot assume jurisdiction as that would amount to the receiving State waiving immunity contrary to Article 32 of the Vienna Convention on Diplomatic Relations

Reasoning

The Court reasoned that the Nigerian High Commission represents a foreign sovereign, and that immunity from the receiving State's jurisdiction attaches to it. Waiver lies only with Nigeria itself. Assuming jurisdiction would violate sovereign equality of States and have ramifications for Kenya's own missions abroad. Kenya lacks a statute adopting restrictive immunity in employment contracts, and the UN Convention on Jurisdictional Immunities of States is not yet in force and cannot be a source of Kenyan law.

p. 1
02

Applicability of restrictive State immunity

Holding

Restrictive immunity has evolved under customary international law but Kenya has no legislation allowing the Court to adopt that approach; the UN Convention of 2004 is not in force

Reasoning

The Court noted that some States, such as Australia through the Foreign States Immunities Act 1985, have restricted foreign State immunity with employment contracts as an exception. Kenya has no equivalent legislation. The UN Convention on Jurisdictional Immunities of States and Their Property, adopted 2nd December 2004, is not yet in force and cannot be received as a source of Kenyan law under the Constitution.

p. 2
03

Limitation and retrospective application of the Employment Act 2007

Holding

The claim fails as it was filed out of the 3-year limitation period in section 90 of the Employment Act 2007, and the Act does not apply to a dismissal of 14th July 2005

Reasoning

The Claimants were summarily dismissed on 14th July 2005 and filed claim on 29th August 2011, beyond the 3-year limitation period in section 90 of the Employment Act 2007. Further, the unfair dismissal protection under section 45 of the Employment Act 2007 did not exist when the dismissal occurred, and the Act is not retrospective.

p. 2

Legal principles established

#
  • A foreign sovereign's diplomatic immunity can only be expressly waived by the sending State; a receiving-State court cannot assume jurisdiction contrary to Article 32 of the Vienna Convention
  • Kenya has no legislation adopting restrictive State immunity in employment contracts, so absolute immunity applies before Kenyan labour courts
  • The Employment Act 2007 does not apply retrospectively to dismissals that occurred before it came into force

Court orders

#
  1. 1.The Claim is hereby dismissed with no order on the costs.

Authorities

#

Legislation

  • Vienna Convention on Diplomatic RelationsArticle 32
  • Foreign States Immunities Act of 1985 (Australia)Not specified
  • United Nations Convention on Jurisdictional Immunities of States and Their PropertyNot specified
  • Employment Act 2007Sections 45 and 90
Jurisdiction invoked
Jurisdiction of the Industrial Court of Kenya considered in light of diplomatic/State immunity under Article 32 of the Vienna Convention on Diplomatic Relations and the lack of restrictive-immunity legislation in Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "ELKANA KHAMISI SAMARERE & another v NIGERIAN HIGH COMMISSION [2013] KEELRC 331 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/331/eng@2013-05-09

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