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ELRCDismissedCause No. 2528 of 2012· [2013] KEELRC 606 (KLR)

Mwangi Patrick Githinji & 14 others v International Organization For Migration [2013] KEELRC 606 (KLR)

Industrial Court (High Court of Kenya at Nairobi)
24 May 2013
MMM. Mbaru
2,385 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed 15 former IOM staff's unfair dismissal claims because the organisation's treaty immunity bars national court employment suits.

What this practically means

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Executive summary

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Fifteen claimants sued the International Organization for Migration (IOM) for unfair summary dismissal in November 2012 following interrogations and suspension over alleged fraudulent medical claims. They sought reinstatement and compensation. The IOM did not enter appearance or file a defence, but instead filed communications attaching a Cooperation Agreement with the Government of Kenya dated 11 May 2002 conferring privileges and immunities. The claimants called three witnesses who testified that internal procedures were not followed, that the investigation report was never shared with them, and that their treating doctors were never called. The claimants argued under section 9 of the Privileges and Immunities Act that IOM was not gazetted or listed in the fourth schedule, and cited Tononoka Steel and Erick Omondi Ojijo to show immunity does not extend to commercial or contractual matters. The court framed two questions: whether IOM had capacity to be sued, and whether the claimants had a remedy. Holding that the Cooperation Agreement conferred immunities extending to staff matters, and that under Article 2(5) and (6) of the Constitution the treaty obligations formed part of Kenyan law, the court found the IOM immune from employment suits in the national court. The claimants' contracts were governed by IOM instruments, with disputes to be resolved by arbitration or the ILO Administrative Tribunal. The claim was dismissed with no order as to costs on 24 May 2013.

Key legal issues

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01

Whether the IOM has immunity from suit in employment disputes

Holding

Yes - under the Cooperation Agreement dated 11 May 2002 with the Government of Kenya, the IOM enjoys privileges and immunities extending to staff matters, so it cannot be sued in the Industrial Court over employment disputes

Reasoning

The court found a valid Cooperation Agreement between the Government of Kenya and IOM conferring immunities and privileges as set out in the UN Convention of 1947. Employment disputes fall within the IOM's internal operations. The claimants had available the internal mechanisms and the route of appeal to the ILO Administrative Tribunal, which they should have used instead of instituting suit in the national court.

p. 4
02

Whether the remedy sought lies in the national court

Holding

No - the remedy is available only under the IOM Council guidelines and international mechanisms

Reasoning

The court applied Article 2(5) and (6) of the Constitution to hold that the Cooperation Agreement and IOM instruments bind the parties. The employment contracts were governed by IOM instruments, not national law, and disputes are to go to arbitration jointly appointed or to the ILO Administrative Tribunal. The court distinguished cases where immunity did not cover commercial transactions.

p. 5

Legal principles established

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  • International organisations enjoying privileges and immunities under a Cooperation Agreement with Kenya are immune from suits in national courts relating to employment disputes, and claimants must pursue internal or international dispute resolution mechanisms such as the ILO Administrative Tribunal
  • Treaties and conventions ratified by Kenya form part of Kenyan law under Article 2(5) and (6) of the Constitution

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs - each party to bear own costs
Jurisdiction invoked
Section 12 of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Mwangi Patrick Githinji & 14 others v International Organization For Migration [2013] KEELRC 606 (KLR)", Case Analysis (2013). Cause No. 2528 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/606/eng@2013-05-24

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