Joyce Mueni Gatambia v Aga Khan Foundation (Kenya) & another [2020] KEELRC 871 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection was properly before the court given that no defence or replying affidavit had been filed
The Preliminary Objection was irregularly brought, but the court entertained it because the core issue touched on jurisdiction
The court held the Respondent should have filed a defence or replying affidavit attaching the documents relied on before arguing the objection; attaching statutes and legal notices to submissions was irregular. However, following Hassan Ali Joho and Jane Cheperenger, the Supreme Court has shifted focus to the purpose of preliminary objections, and since the objection went to jurisdiction and would save scarce judicial time, the court considered it worthy of being heard in limine.
Whether the court had jurisdiction in view of the plea of immunity under the Privileges and Immunities Act and the Aga Khan Development Network Order, 1997
The Respondents enjoy immunity from legal process and the court lacks jurisdiction
The Legal Notice under Section 11 of the Privileges and Immunities Act declared the 1st Respondent an organisation to which Section 11 applies, conferring the privileges and immunities in Part I of the Fourth Schedule, including immunity from legal process of any kind. Officers and servants enjoy like immunity for acts done in official duties. The documents attached to the Claimant's own pleadings identified the 1st Respondent as an agency of the Aga Khan Development Network, and no waiver of immunity was shown. The employment contract was part of the 1st Respondent's official functions.
Whether the employment dispute fell outside the immunity as a private law matter
The claim of immunity was not displaced; the hiring and termination of an Executive Manager was an integral part of the 1st Respondent's official functions
The Claimant argued that an employment contract is a private law matter and that the UN Convention on Jurisdictional Immunities of States excludes employment contracts. The court found the Convention unratified and thus not binding on Kenya. The Respondents' submission that the employment of an Executive Manager was integral to their official functions was accepted, and the immunity, never waived, barred the suit.
Whether the suit should be struck out
The Memorandum of Claim was struck out and the case dismissed
Having found immunity from legal process and lack of jurisdiction, proceeding to trial would be futile. Even though the objection was irregularly raised, the outcome would be the same at full hearing, so the court allowed the objection and struck out the claim.
Legal principles established
#- The proper manner of raising a preliminary objection is to first file pleadings (defence or replying affidavit) so the documents relied on are on record before arguing the objection
- A court must interrogate jurisdiction at inception, as without jurisdiction it must down its tools
- Production of the Minister's Order under the Privileges and Immunities Act is prima facie evidence of the existence of the immunity
- The United Nations Convention on Jurisdictional Immunities of States and Their Property does not bind Kenya as it has not been ratified
Court orders
#- 1.The Preliminary Objection is allowed.
- 2.The Memorandum of Claim is struck out and the case is dismissed.
- 3.Each party shall bear its own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (cited in submissions as Industrial Court Act, 2011), read with Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Mueni Gatambia v Aga Khan Foundation (Kenya) & another [2020] KEELRC 871 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/871/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.