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ELRCStruck OutNot stated in the judgment (Notice of Motion dated 14th January, 2020)· [2021] KEELRC 1309 (KLR)

Catherine Mueni Mutuku v International Livestock Research Institute [2021] KEELRC 1309 (KLR)

Employment and Labour Relations Court
8 July 2021
MNMATHEWS N. NDUMA
4,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an employee's unfair termination claim against ILRI, holding it bound by Supreme Court authority on international organization immunity.

What this practically means

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Executive summary

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The Respondent, International Livestock Research Institute (ILRI), moved to strike out the Claimant's suit claiming damages of Ksh. 10,060,408.96 for what she alleged was unlawful termination of her employment. ILRI argued that under the Host Country Agreement of 29th September 1994 and Sections 9 and 11 of the Privileges and Immunities Act (Cap. 179), it enjoyed immunity from every form of legal process, that it had not waived that immunity, that the suit was premature for failure to exhaust the dispute-resolution mechanism in Article V of the HCA, and that the Court lacked jurisdiction. The Claimant opposed, relying on the Bill of Rights, Article 48 access to justice, her protracted but fruitless engagement with the Ministry of Foreign Affairs and International Trade, and the Supreme Court's decision in Karen Njeri Kandie v Alassane BA showing that immunity is limited. The Court framed two issues: whether ILRI enjoyed immunity so as to deny the Court jurisdiction, and, if not, whether the matter should be referred back to conciliation as premature. Reviewing Unicom v Ghana High Commission, Rahimtullah v Nizam of Hyderabad and Tononoka Steel, the Court accepted that absolute immunity is anachronistic and that employment disputes are private-law matters attracting only restricted immunity. Nevertheless, holding itself bound by the Supreme Court's decision in Karen Njeri Kandie and noting ILRI had not waived immunity, the Court allowed the application and struck out the suit, expressing hope that internal HCA processes would resolve the dispute justly. No express costs order was made.

Key legal issues

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01

Whether ILRI enjoys absolute immunity from legal process under the Host Country Agreement and the Privileges and Immunities Act, Cap. 179

Holding

No. Immunity is restricted; it cannot be invoked to shield an international organization from pure private-law employment disputes, though the Court is bound by the Supreme Court's decision in Karen Njeri Kandie and the failure to waive immunity.

Reasoning

The Court traced the legal history from the 1973 MOA, the 1993 Agreement, the 1994 Host Country Agreement and Legal Notices 134 of 1993 and 2 of 2001. Relying on Unicom v Ghana High Commission, Tononoka Steel and the Supreme Court in Karen Njeri Kandie, it held that absolute immunity is anachronistic and that immunity must be restricted so that private/commercial activities cannot be immunized. However, the Supreme Court's binding decision in Karen Njeri Kandie constrained the Court.

p. 5
02

Whether the Court is bound by Karen Njeri Kandie v Alassane BA notwithstanding more progressive views permitting suit against international organizations in employment matters

Holding

Yes. The Court held its hands tied by the Supreme Court decision and allowed the application to strike out the suit.

Reasoning

Although the Court found the views in Talaro Lepalat v Embassy of the Federal Republic of Germany progressive and noted that customary international law prescribes restricted immunity, it considered itself bound by the Supreme Court's pronouncement in Karen Njeri Kandie that the immunity granted is limited by international law and by the granting instruments. Since the Respondent had not waived its immunity, the suit could not proceed.

p. 6
03

Whether the claimant had exhausted the dispute resolution mechanism under Article V of the Host Country Agreement before filing suit

Holding

The Court found the claimant had made protracted and concerted efforts at the Ministry of Foreign Affairs and International Trade without resolution, and the respondent offered no compelling argument as to why the dispute had not been resolved there.

Reasoning

The claimant's replying affidavit demonstrated a demand letter of 5th July 2017, a letter to the Ministry of Foreign Affairs dated 27th April 2018, numerous visits and texts, and intervention by the Ministry of Labour. The Court observed the respondent had not explained the failure of resolution at the Ministry, though this did not save the suit given the immunity holding.

p. 5

Legal principles established

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  • The doctrine of absolute immunity has been abandoned; immunity granted to international organizations is limited both by international law and by the instruments granting it
  • Whether immunity applies depends on the nature of the dispute, not the identity of the party impleaded
  • An employment dispute is a private law matter in respect of which restricted, not absolute, immunity applies to international organizations

Court orders

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  1. 1.The application to strike the matter out is allowed
  2. 2.The Claimant's suit against the Respondent is struck out
  3. 3.The Court expressed the hope that the internal processes under the Host Country Agreement shall be utilized justly to independently evaluate and resolve the dispute

Authorities

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Legislation

  • Privileges and Immunities ActSections 9 and 11; Article 31; Fourth Schedule
  • Constitution of Kenya, 2010Articles 1, 2(1), 2(5), 2(6), 3(1), 20(1), 22, 23, 24, 27, 28, 29, 41, 48, 159(2)(d), 165; Section 7 of the Sixth Schedule
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Host Country Agreement between ILRI and the Government of Kenya (29th September, 1994)Articles V, IX(1), XI(3)
  • Legal Notice No. 134 of 1993 privileges and immunities of ILRAD
  • Legal Notice No. 2 of 2001extension of privileges and immunities to ILRI
  • Memorandum of Agreement (25th September, 1973) between the Government of Kenya and the Rockefeller Foundation on behalf of CGIARArticle XII(a)
  • Convention on the Privileges and Immunities of the Specialized Agencies (UN General Assembly, 21st November, 1947)applied to ILRI under Article XI(3) of the HCA
  • United Nations Convention on Jurisdictional Immunities of States and Their PropertyPart III, Article 11 (Contracts of employment)

Cases cited (6)

  • Karen Njeri Kandie –vs- Alassane BA and Another
    (2017) eKLR
  • Unicom Limited –vs- Ghana High Commission
    (2016) eKLR, Civil Appeal No. 56 of 2014
  • Rahimtullah –vs- Nizam of Hyderbad
    [1958] A.C. 379
  • Tononoka Steel Limited –vs- East and Southern Africa Trade and Development Bank
  • Lucy Muingo Kusewa & Another –vs- Embassy of Sweden, Nairobi
    (2017) eKLR
  • Talaro Lepalat –vs- Embassy of Federal Republic of Germany and 2 Others
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction invoked under Articles 22, 23, 24, 41, 48 and 165 of the Constitution of Kenya, 2010; challenged under Sections 9 and 11 of the Privileges and Immunities Act (Cap. 179) and Article V of 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, "Catherine Mueni Mutuku v International Livestock Research Institute [2021] KEELRC 1309 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 14th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1309/eng@2021-07-08

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