Mark Agoya v Department for International Development (DFID) [2020] KEELRC 1012 (KLR)
The bottom line
#Kenya's Employment Court ruled a foreign state employer cannot hide behind immunity and must prove a dismissal was fair, or lose.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court had jurisdiction over the Respondent notwithstanding state immunity
The Court had jurisdiction; the employment contract exception in Article 11(1) of the UN Convention applied and the Article 11(2)(d) security-interests exception was not demonstrated
The Claimant invoked Article 11(1) of the UN Convention on Jurisdictional Immunities of States and their Properties, ratified by the UK, excluding immunity for employment contracts performed in the forum State. Article 11(2)(d) preserves immunity for dismissal proceedings interfering with security interests, but only where so determined by the employer State's head of State, head of Government or Foreign Minister. Since the Respondent did not participate to demonstrate that this case fell within Article 11(2)(d), the Court proceeded on the basis of jurisdiction.
Whether the dismissal was procedurally fair
The process satisfied the statutory minimums under sections 35(1), 36 and 41 of the Employment Act; redaction of witness names did not prejudice the Claimant
The Claimant was suspended, appeared before the Investigator, and attended a disciplinary hearing. Although served only redacted witness statements and investigation report, he made a detailed response by email addressing each allegation, showing he knew the particulars. The general rule requiring full disclosure is tempered by confidentiality concerns, and a disciplinary hearing is not a criminal trial. Delay was not established as the process took only about two and a half months.
Whether the dismissal was substantively fair
The dismissal was not for valid or fair reasons because the Respondent failed to discharge its burden of proof by not participating
Under sections 43 and 45 of the Employment Act, the employer must prove that the reasons for dismissal are valid and fair. Despite proper service of summons and the Statement of Claim, the Respondent neither entered appearance nor filed a response. It therefore failed to discharge the statutory burden, leaving the Court no option but to find the dismissal unfair.
Appropriate remedies for the unfair dismissal
Three months' gross salary (Kshs 2,130,078/-) awarded as compensation and pro-rata leave allowed under section 10(3); reinstatement and other heads refused
Reinstatement was declined for want of evidential foundation. Considering the Claimant's roughly 3 years of service and legitimate expectation to serve until retirement, three months' gross salary (Kshs 710,026/- per month) was deemed fair compensation. Pro-rata leave was allowed under section 10(3) despite lack of particulars, leave being a statutory entitlement. Severance, retirement-income damages and reputational damages were all refused for want of pleading or proof.
Legal principles established
#- A State cannot invoke immunity from jurisdiction in a proceeding relating to a contract of employment for work performed in the territory of the forum State, unless otherwise agreed
- Where an employer fails to enter appearance or file a response, it fails to discharge the statutory burden of proving valid and fair reasons for dismissal
- An employer may redact or anonymise witness identities in disciplinary proceedings for confidentiality reasons; a disciplinary hearing is not a mini-court
- An employee terminated prematurely or illegally is not entitled to compensation for income up to retirement
Court orders
#- 1.Declaration that the dismissal of the Claimant was unfair
- 2.Award of compensation of Kshs 2,130,078/- (equivalent of 3 months' gross salary)
- 3.The Respondent to compute the Claimant's pro-rata leave and pay as part of the judgment
- 4.Claimant denied costs for failing to file submissions within the extended timelines
- Jurisdiction invoked
- Article 11(1) of the United Nations Convention on Jurisdictional Immunities of States and their Properties (respondent not immune; Article 11(2)(d) exception not demonstrated)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pktai & another v Cloudfactory Kenya Limited & another (Petition E006 of 2023) [2025] KEELRC 2574 (KLR)[2025] KEELRC 2574 (KLR)22 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Mark Agoya v Department for International Development (DFID) [2020] KEELRC 1012 (KLR)", Case Analysis (2020). Not stated in the judgment (Cause heard by formal proof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1012/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.