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ELRCStruck OutNot stated in the judgment (Memorandum of Claim filed 30th October 2017)· [2019] KEELRC 2038 (KLR)

Kenneth Nyaga Mwige v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development of Kenya & 5 others [2019] KEELRC 2038 (KLR)

Employment and Labour Relations Court
27 February 2019
HWHellen Wasilwa
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a former ISCOS boss's unfair termination claim because the international organisation and its member states enjoy diplomatic immunity from lawsuits.

What this practically means

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Executive summary

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The Claimant, Kenneth Nyaga Mwige, former Secretary General of the Intergovernmental Standing Committee on Shipping (ISCOS), sued alleging unlawful, unprocedural and unfair termination of his employment following a notice dated 28th June 2017 ahead of the expiry of his five-year contract on 31st December 2017. He also sought interim orders restraining the Respondent and allowing him to continue in office. The Attorney General, for the 1st and 5th Respondents, filed a Preliminary Objection contending that the Court lacked jurisdiction because ISCOS is an international organisation enjoying immunity from legal process under the Host Country Agreement of 1991, the Privileges and Immunities Act and the ISCOS Privileges and Immunities Order, 1992; that the member states enjoy diplomatic immunity; that the Host Country Agreement provides an exhaustive dispute settlement mechanism the Claimant failed to exhaust; that there was no justiciable labour dispute given the fixed-term contract; and that no cause of action lay against the Attorney General. The Claimant argued the objection was defective under the Mukisa Biscuit test, that immunity was not absolute, and that the termination was a disguised dismissal. The Court, per Hellen Wasilwa J, upheld the objection. It held that the 1st to 4th Respondents enjoy diplomatic immunity, that ISCOS had not waived its immunity, that a renewable clause does not make renewal absolute, and that no claim lay against the Attorney General, who was not the legal advisor of the Respondents. The Preliminary Objection was allowed and the entire Claim struck out on 27th February 2019.

Key legal issues

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01

Immunity of ISCOS and member states from legal process

Holding

The 1st to 4th Respondents enjoy diplomatic immunity and the Claim cannot be entertained against them; ISCOS had not waived its immunity

Reasoning

The Host Country Agreement of 29th July 1991 under Article IV grants ISCOS, its property and assets immunity from legal process. The Privileges and Immunities Act and the Privileges and Immunities (ISCOS) Order, 1992 extend immunity to the organisation and the member states. No waiver was shown, so the municipal court cannot entertain the dispute.

p. 4
02

Existence of a justiciable labour dispute

Holding

There was no justiciable labour dispute as the claimant was on a 5-year fixed-term contract from 1st January 2013 to 31st December 2017 and six months' notice of non-renewal was issued on 28th June 2017

Reasoning

The appointment letter fixed a five-year renewable term. A renewable clause does not make renewal absolute. The letter of 28th June 2017 was notice of non-renewal under Regulation 13(6) of the ISCOS Secretariat Service Regulations, so the contract would terminate by effluxion of time rather than by an act of unlawful termination by the employer.

p. 4
03

Claim against the Attorney General

Holding

No cause of action against the Attorney General

Reasoning

The Attorney General was not the legal advisor of the Respondents in an employer-employee relationship between the Claimant and ISCOS, and the Claimant's reliance on Article 156 of the Constitution did not establish a cause of action against the AG in these proceedings.

p. 4

Legal principles established

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  • International organisations and member states enjoying diplomatic immunity under the Privileges and Immunities Act and a Host Country Agreement cannot be subjected to suits in Kenya's municipal courts absent waiver of immunity
  • A renewable fixed-term contract does not confer an absolute right of renewal; notice of non-renewal in accordance with the contract terminates it
  • The Attorney General cannot be sued in an employment dispute between a claimant and an international organisation of which the AG is not legal advisor

Court orders

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  1. 1.The Preliminary Objection is allowed
  2. 2.The Claim is struck out

Authorities

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Legislation

  • Privileges and Immunities ActSection 9; Fourth Schedule Parts I, II and III
  • Privileges and Immunities (Inter-governmental Standing Committee on Shipping) Order, 1992Article 2 read with the Constitution
  • Constitution of KenyaArticle 156; Article 156(6)
  • Employment ActSection 2 (definition of contract of service); Section 10
  • Labour Institutions ActSection 2
  • Arbitration ActSection 6
  • Vienna Convention on the Law of Treaties, 1969Article 2(1)(a)
  • Vienna Convention on Diplomatic Relations, 1961Article 31
  • Host Country Agreement between ISCOS and the Government of the Republic of Kenya dated 29th July 1991Article IV (immunity from legal process); Article XIV (settlement of disputes)
  • Agreement for the establishment of the Inter-Governmental Standing Committee on ShippingArticle XIV

Cases cited (10)

  • Karen Njeri Kandie v Alssane Ba & Another
    [2015] eKLR
  • Samuel Chacha Mwita v Kenya Medical Research Institute
    [2014] eKLR
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Karen Njeri Kandie v Alssane Ba & Another
    [2012] eKLR
  • Nancy Macnally v International Centre of Insect Physiology and Ecology (ICIPE)
    [2016] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Lucy Muingo Kusewa & Another v Embassy of Sweden
    [2017] eKLR
  • Reyes v Al-Malki and another
    [2017] UKSC 61
  • Teresa Carlo Omondi v Transparency International – Kenya
    [2017] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over labour disputes; contested on the basis of the Privileges and Immunities Act (Cap 179) and the Host Country Agreement

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenneth Nyaga Mwige v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development of Kenya & 5 others [2019] KEELRC 2038 (KLR)", Case Analysis (2019). Not stated in the judgment (Memorandum of Claim filed 30th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2038/eng@2019-02-27

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