Nancy Mcnally v International Centre of Insect Physiology and Ecology; Attorney General (Interested Party) [2019] KEELRC 1791 (KLR)

The court traced the binding Supreme Court authority holding that diplomatic/organisational immunity is only a procedural bar and not a limitation of the right of access to justice, and that the limitation is proportionate to Kenya's international law obligations. It declined to follow European Court of Human Rights jurisprudence to the contrary, noting Kenya has not ratified the 2004 UN Convention on Jurisdictional Immunities. The petitioner's substantive rights under Articles 40 and 41 remain intact and enforceable through alternative dispute settlement mechanisms.

The court held waiver may be express under Article 32 of the Vienna Convention or implied by instituting proceedings or unequivocally defending the suit on the merits. The respondent's Notice of Motion for a gag order was an interlocutory application meant to prevent prejudice pending trial, not a suit or counterclaim, and the respondent had consistently pleaded immunity through a preliminary objection, an appeal and its replying affidavit.

Having found the immunity valid and unwaived, the court held the bar extended to all claims arising from or related to the contract of service, including alleged contraventions of the Employment Act and violations of Articles 28, 31 and 41. Such disputes must go through the internal dispute settlement mechanism under Clause 2.11(b) of the Employee Manual provided pursuant to Article XV of the Host Country Agreement, a route the petitioner had not timely invoked.

The petitioner sought a declaration that section 45 limits damages for unfair termination to employees with at least 13 months' service. The Attorney General correctly pointed out that subsection (3) had been struck down by Lenaola J in Samuel G. Momanyi v Attorney General in May 2012, so the declaration sought was predicated on a non-existent provision and the issue was academic.