Miriam Cherogony v African Rural and Agricultural Credit Association & another [2020] KEELRC 445 (KLR)
The bottom line
#Kenya's Employment Court ruled that international organisations cannot hide behind immunity to avoid lawsuits by their local employees over employment contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether an international organisation enjoys immunity from legal process in an employment dispute
Immunity in employment matters is restrictive, not absolute; employment contracts fall within private law and remain subject to the jurisdiction of the Employment and Labour Relations Court
The Court considered the three elements for a plea of immunity as set out in Karen Njeri Kandie v Alssane Ba: existence of immunity, waiver, and whether the dispute is intrinsically linked to the mandate of the immunised entity. Relying on the Court of Appeal decision in Embassy of Sweden, Nairobi v Lucy Muingo Kusewa, the Court held that employment contracts fall within private law where immunity is restricted, and that local employees' contracts are subject to the Employment Court's jurisdiction.
Whether the absence of a Host Country Agreement was determinative of the objection
The Court observed obiter that the Claimant's argument on the lack of a Host Country Agreement would not have been determinative, since the Convention arguably applies directly under Article 2(6) of the Constitution
The Claimant argued that immunity was not demonstrated absent a Host Country Agreement and a Cabinet Secretary order under section 9 of the Privileges and Immunities Act. The 2nd Respondent countered that under Article 2(6) of the Constitution the Convention automatically formed part of Kenyan law, and a Note Verbale applied the Host Agreement to it. The Court declined to decide this point, finding for the Claimant on the private law issue instead.
Legal principles established
#- Employment contracts belong to the private law domain and absolute immunity does not apply to them, even where the employer is an immunised international organisation
Court orders
#- 1.The Notice of Preliminary Objection by the 2nd Respondent is dismissed with costs
- 2.2nd Respondent to file and serve its Response, witness statements and documents on or before 16 October 2020
- 3.1st Respondent to file and serve witness statements and documents on or before 16 October 2020
- 4.Claimant to file and serve any Reply within 7 days of service of the Responses
- 5.Agreed Issues to be filed before 30 October 2020
- 6.In default of agreeing on Issues by 30 October 2020, Claimant's initial proposed issues to be deemed as trial Issues
- 7.Hearing date to be taken in the registry after compliance
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims; objection based on immunity under the United Nations Convention on Privileges and Immunities of the Specialised Agencies and the Privileges and Immunities Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Cherogony v African Rural and Agricultural Credit Association & another [2020] KEELRC 445 (KLR)", Case Analysis (2020). Cause No. 1888 of 2017 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/445/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.