George Oduori Otieno v African Trade Insurance Agency & another [2019] KEELRC 420 (KLR)
The bottom line
#Kenya's Employment Court ruled that African Trade Insurance Agency's claimed immunity is not absolute, so the constitutional challenge against it must proceed to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection
The preliminary objection met the Mukisa Biscuit threshold because immunity is a pure point of law raising a procedural bar to jurisdiction.
The court adopted the Mukisa Biscuit formulation and the Court of Appeal's exposition in Karen Njeri Kandie that a plea of immunity raises a threshold issue to be determined in limine because its effect is to raise a procedural bar to the Court's jurisdiction. The objection was therefore properly before the court for determination on its merits as a point of law.
Whether the 1st Respondent enjoys immunity from these proceedings
The immunity claimed is not absolute; the Petition challenges the constitutionality of the instruments granting immunity and must be heard on its merits.
The court noted the Petition does not raise an ordinary employment claim but challenges the constitutionality of the privileges and immunities granted to the 1st Respondent. Citing ICIPE v Nancy Mcnally, it held all laws and legal instruments are subject to the Constitution, and the Privileges and Immunities Act and granting instruments must be examined at full hearing to determine whether immunity is absolute or restricted. Article 16(1) of the ATI Agreement was not framed to confer absolute immunity.
Whether the Court has jurisdiction
The Court must entertain the Petition in order to interpret the Constitution and the impugned instruments.
Because one of the prayers seeks a declaration that Article 16(1)(b) of the Treaty establishing the 1st Respondent is unconstitutional, the court held it must allow the Petition to be argued before determining that issue. The Constitution being supreme, where a law is alleged to conflict with it, the court has a duty to interpret the law and the Constitution.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts need to be ascertained or judicial discretion is sought.
- Claims challenging the constitutionality of immunity-granting instruments cannot be disposed of summarily by preliminary objection; they must proceed to full hearing.
Court orders
#- 1.The 1st Respondent's preliminary objection fails and is dismissed with costs in the cause
- Jurisdiction invoked
- Constitutional petition under Articles 2(4), (5) and (6), 27(1) and (2), 28, 41(1) and (2) and 48 of the Constitution 2010 (as pleaded in the Petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Oduori Otieno v African Trade Insurance Agency & another [2019] KEELRC 420 (KLR)", Case Analysis (2019). Petition No 85 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/420/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.