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ELRCStruck OutNot stated in the judgment (memorandum of claim filed 1st October 2015)· [2016] KEELRC 421 (KLR)

Ishak Mohamed v Libyan Embassy [2016] KEELRC 421 (KLR)

Industrial Court (Employment and Labour Relations Court)
5 July 2016
NMNzioki wa Makau
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent, the Libyan Embassy, filed a Notice of Motion dated 19th November 2015 seeking the striking out of the Claimant's memorandum of claim filed on 1st October 2015, on the grounds that it enjoys absolute diplomatic immunity from suits and that the State of Libya had not expressly waived that immunity. The application was urged on the basis of Articles 2(5) and 2(6) of the Constitution as read with the Vienna Convention on Diplomatic Relations 1961 (articles 1(f), 22, 29, 30, 31, 32, 37, 38 and 39) and the Privileges and Immunities Act 1970. Counsel for the Respondent further argued that an embassy is merely a building and not a legal person capable of being sued. The Court considered Rika J's decision in Samarere v Nigerian High Commission, which it followed, holding that Kenya has no legislation adopting restrictive diplomatic immunity in employment contracts, so diplomatic missions enjoy unrestricted immunity from the Industrial Court's process. It distinguished the Botswana decision in Bah v Libya Embassy, which applies restrictive immunity, and held that the UN Convention on Jurisdictional Immunities of States and Their Property 2004, not being in force, could not aid the Claimant. On the juristic personality point, the Court held that while a building cannot strictly be sued, 'embassy' encompasses the sovereign's mission; the suit could be instituted upon waiver of immunity. Finding no capacity to entertain the suit, the Court struck out the memorandum of claim but made no order as to costs.

Key legal issues

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01

Whether the Court has jurisdiction over an employment claim against a foreign embassy enjoying diplomatic immunity

Holding

The Court lacks jurisdiction; diplomatic missions enjoy immunity from employment claims because Kenyan law applies absolute, not restrictive, immunity.

Reasoning

The Court adopted the reasoning of Rika J in Samarere v Nigerian High Commission, holding that there is no Kenyan legislation permitting the restrictive application of diplomatic immunity in employment contracts. The restrictive regime, as in Botswana's Bah v Libya Embassy, does not obtain in Kenya. The UN Convention 2004 is not in force and cannot aid the Claimant.

p. 4
02

Whether the embassy, as a building, is a legal person capable of being sued

Holding

Strictly a building is not a juristic person, but 'embassy' encompasses the mission or representation of the sovereign beyond the building; the suit could proceed only upon waiver of immunity.

Reasoning

Applying dictionary definitions, the Court noted a building cannot sue or be sued, but held that in substance the embassy refers to the sovereign's mission, so naming the embassy suffices where immunity is waived. Absent express waiver under Article 32 of the Vienna Convention, the claim could not be entertained.

p. 3

Legal principles established

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  • A sovereign or diplomatic mission cannot be impleaded in Kenyan courts unless diplomatic immunity is expressly waived, as Kenyan law applies absolute (non-restrictive) diplomatic immunity.
  • The expression 'embassy' or 'high commission' encompasses more than the building and refers to the mission or representation of the sovereign, which may be named as a respondent when immunity is waived.
  • The UN Convention on Jurisdictional Immunities of States and Their Property 2004 is not in force and cannot be a source of Kenyan law.

Court orders

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  1. 1.The memorandum of claim is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 2(5), Article 2(6)
  • Vienna Convention on Diplomatic Relations 1961Articles 1(f), 22, 29, 30, 31, 32, 37, 38, 39
  • Privileges and Immunities Act1970
  • United Nations Convention on Jurisdictional Immunities of States and Their Property2004, Articles 10 and 11

Cases cited (5)

  • Ministry of Defence of the Government of the United Kingdom v. Joel Ndegwa
    [1983] eKLR
  • Elkana Khamisi Samarere & Anor. v. Nigerian High Commission
    [2013] eKLR
  • Alfred Kioko Muteti v. Timothy Miheso & Embassy of Chile
    [2015] eKLR
  • Twictor Investments Ltd. v. Government of United States of America
    [2003] eKLR
  • Bah v. Libya Embassy
    2006
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 2(5) and 2(6) of the Constitution as read with the Vienna Convention on Diplomatic Relations 1961 and the Privileges and Immunities Act 1970 (cited by the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ishak Mohamed v Libyan Embassy [2016] KEELRC 421 (KLR)", Case Analysis (2016). Not stated in the judgment (memorandum of claim filed 1st October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/421/eng@2016-07-05

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