Agnes Akinyi Nyameyo v Austrian Embassy, Nairobi Commercial Section & 2 others [2021] KEELRC 770 (KLR)

The Court held that the Respondents' immunity is conferred by statute domesticating the Vienna Convention and is absolute unless expressly waived under Article 32. The contractual reference to Kenyan law is not an express waiver. Relying on the Supreme Court in Karen Kandie, the immunity validly limits Article 48 rights. The doctrine of restrictive immunity, based on foreign authorities, cannot displace Kenyan statute law.

Applying Mukisa Biscuit, the Court found the issue of immunity a pure point of law requiring no ascertainment of facts or exercise of discretion. It rejected reliance on David Karobia Kiiru as not adding value, but noted that a valid preliminary objection should dispose of the suit and that jurisdictional objections are proper subjects of preliminary objections.

The Claimant relied on foreign authorities (Alfred Dunhill, Thai-Europe Tapoica, Embassy of Czechoslovakia, Tabion) for restrictive immunity. The Court held foreign decisions are not binding and, even as customary international law, restrictive immunity would form part of common law which cannot displace statute law, i.e. the Privileges and Immunities Act.

The Court observed that the absence of the memorandum of claim was a serious omission that would invalidate the whole suit, but since the pleadings on record sufficed to determine the immunity question, it decided the preliminary objection on that basis without striking out solely for that omission.