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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1625 (KLR)

Mercy Muhandia v Razor Tara [2018] KEELRC 1625 (KLR)

Employment and Labour Relations Court
6 July 2018
2,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that diplomatic immunity could not be used to quickly dismiss a domestic worker's wage claim because key facts were disputed and needed a full hearing.

What this practically means

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Executive summary

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The applicant, described as the High Commissioner of the Islamic Republic of Pakistan to Kenya, filed a notice of motion dated 30.05.2018 under Order 2 Rule 15(1)(d) and Order 51 of the Civil Procedure Rules, the Civil Procedure Act and Rule 17 of the ELRC (Procedure) Rules 2016, seeking stay of proceedings and striking out of a claimant's suit for terminal dues arising from employment as a domestic worker from August 2016 to 15.02.2017 at a monthly salary of Kshs.13,000. The applicant pleaded absolute diplomatic immunity under the Privileges and Immunities Act (Cap. 179) read with the Vienna Convention on Diplomatic Relations, 1961, contending the domestic employment contract was not a commercial activity and that the court lacked jurisdiction. The claimant opposed, disputing that the applicant was Head of Mission, asserting she was sued in his private capacity, and relying on authority that immunity in employment matters is restrictive and that immunity cannot defeat non-derogable constitutional rights. Relying on the Mukisa Biscuit principle, the court held the preliminary objection could not stand because the claim of absolute diplomatic immunity rested on disputed facts requiring evidence. The court further held, having regard to Article 25 non-derogable rights including freedom from servitude and the right to a fair trial, that whether the claimant's rights were violated required investigation at the full hearing. The application was dismissed with costs, with directions for the applicant to file a statement of response by 20.07.2018, the claimant to reply by 27.07.2018, and for fixation of a pre-trial conference.

Key legal issues

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01

Whether the replying affidavit sworn by a stranger to the contract should be expunged

Holding

The affidavit was not struck out; questionable probative value is not a ground for striking out an affidavit

Reasoning

The court held that even if the maker of the replying affidavit was not privy to the matters in dispute, this might affect the weight or relevance of the evidence but does not justify striking the affidavit out of the record. The application to expunge therefore failed.

p. 4
02

Whether the preliminary objection on diplomatic immunity was a pure point of law

Holding

No - it depended on disputed facts requiring evidence and would collapse on that ground alone

Reasoning

The plea of absolute diplomatic immunity rested on the assertion that the applicant is the High Commissioner of Pakistan, a fact the claimant disputed in her pleadings, affidavit and submissions. Following Mukisa Biscuit, a preliminary objection cannot be raised where facts must be ascertained. The objection was therefore unsustainable as a summary procedure.

p. 4
03

Whether diplomatic immunity legitimately limited the claimant's right of access to justice

Holding

The question, including whether unqualified rights under Article 25 were violated, required investigation at the full hearing; the preliminary objection failed

Reasoning

The court weighed the applicant's reliance on Karen Njeri Kandie (immunity as a legitimate limitation under Article 48) against the claimant's submission that an employer should not enjoy services and then refuse payment under cover of immunity. The court invoked Article 25 non-derogable rights, including freedom from servitude and fair trial, holding such issues must be investigated at full hearing.

p. 4

Legal principles established

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  • A preliminary objection cannot be sustained where facts are disputed and evidence is required
  • A claim of absolute diplomatic immunity premised on disputed facts (whether the respondent is Head of Mission) cannot dispose of a suit summarily

Court orders

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  1. 1.The application filed for the applicant Razor Tara on 30.05.2018 is dismissed with costs
  2. 2.The applicant to file and serve the statement of response, documents and witness statements by 20.07.2018
  3. 3.The claimant may file and serve a reply to defence and further witness statement by 27.07.2018
  4. 4.Upon the close of pleadings parties to fix a date at the registry for the pre-trial conference
  5. 5.Parties at liberty to compromise the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d); Order 51
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 5
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(1) and (3)
  • Privileges and Immunities ActSection 4; Cap. 179
  • Constitution of Kenya, 2010Articles 2(5), 2(6), 24, 25, 48
  • Employment Act2007 (general)
  • Vienna Convention on Diplomatic Relations, 1961Articles 3.1(a)-(e), 31(c) (as quoted by parties), 32
  • UN Convention on Jurisdictional Immunities of States and their Propertygeneral

Cases cited (9)

  • Eugine Linyulu Isalambo –Versus- Barbro Ekvall
    [2016]eKLR
  • Al-Malki and Another (Secretary of State for Foreign and Commonwealth Affairs and Others Intervening)
    [2015] EWCA Civ.32; [2015] WLR (D) 75
  • Karen Njeri Kandie –Versus- Alassane Ba & Another
    [2015]eKLR
  • Karen Njeri Kandie –Versus- Alassane Ba & Another
    [2017]eKLR
  • Samarere & Another –Versus- Nigerian High Commission
    [2013]eKLR
  • Owners of the Motor Vessel ‘Lillian S’ –Versus- Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Lucy Muingo Kusewa & Another –Versus- Embasy of Sweeden, Nairobi
    (2017) eKLR
  • International Centre for Insect Physiology and Ecology (ICIPE) –Versus- Nancy Mcnally
    [2018]eKLR
  • Mukisa Biscuit Manufacturing Company Limited –Versus- West End Distributors Limited
    [1969] EA 696
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 17(1) and (3); Civil Procedure Act (Chapter 21) and Civil Procedure Rules 2010

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, "Mercy Muhandia v Razor Tara [2018] KEELRC 1625 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1625/eng@2018-07-06

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