Nyunja v Embassy of the Kingdom of Sweden & another (Cause E6486 of 2020) [2023] KEELRC 791 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over a diplomatic mission in an employment dispute
The court has jurisdiction; immunity is restrictive and does not cover employment matters
The respondents raised immunity late, under Article 31 of the Vienna Convention. The court held immunity over civil liability is not absolute. Relying on Lucy Muingo Kusewa, the restrictive doctrine of immunity applies: employment matters fall under private law where immunity is restricted under the Privileges and Immunities Act, and commercial/private acts are not immunised per the Supreme Court in Karen Njeri Kandie.
Whether termination was for valid and fair reasons under sections 41, 43 and 45 of the Employment Act
Termination not justified; the employer failed to prove warnings or measures addressing poor performance
The employer alleged poor performance and carelessness but filed no prior warnings; the show cause notice had 14 allegations with no attachments. Following National Bank of Kenya v Samuel Nguru Mutonya and Jane Samba Mukala, an employer must show a performance measurement policy, measures to address poor performance, and afford the employee an opportunity to improve and respond. None were demonstrated.
Whether the claimant was discriminated against
Discrimination found established; general damages awarded
Under Article 27 and section 5 of the Act, discrimination is prohibited and the burden shifts to the employer once alleged. The claimant filed grievances against the 2nd respondent which went unanswered; the employer's witness was not conversant with the matter. The unexplained failure to respond placed the employer in breach of the high threshold required.
Whether the right to privacy was breached by use of the claimant's photograph
No breach established
The claimant consented to the group photograph; it was a group photo without caption identifying him, published on social media, taken down within a week of his complaint. The court could not discern any breach from the material filed.
Quantum of remedies
6 months' compensation (Kshs 1,410,000) and Kshs 500,000 general damages for discrimination; futuristic earnings refused
The claimant served over 5 years with a clear record earning Kshs 235,000 monthly, justifying 6 months' salary under sections 45 and 49. For discrimination, guided by Gichuru v Parckage Insurance Brokers (Kshs 2 million), the court awarded Kshs 500,000. Anticipatory salaries for unmitigated future earnings were refused per D.K. Njagi Marete.
Legal principles established
#- Diplomatic immunity over employment claims is restrictive, not absolute; locally employed staff of a foreign mission retain legal protections in Kenyan courts
- An employer terminating for poor performance must have a performance evaluation policy, apply objective criteria, allow improvement, and afford the employee a hearing
- Once discriminatory treatment in employment is alleged, the burden shifts to the employer, who is placed at a high threshold to disprove it
Court orders
#- 1.A declaration that employment terminated unfairly
- 2.A declaration that the respondents discriminated against the claimant
- 3.Compensation awarded at Kshs 1,410,000
- 4.General damages awarded at Kshs 500,000
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Restrictive diplomatic immunity under the Vienna Convention on Diplomatic Relations (Article 31) read with Article 2(6) of the Constitution; the Privileges and Immunities Act and UN Convention on Jurisdictional Immunities of States and their Property - employment matters fall outside absolute immunity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyunja v Embassy of the Kingdom of Sweden & another (Cause E6486 of 2020) [2023] KEELRC 791 (KLR)", Case Analysis (2023). Cause No E6486 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/791/eng@2023-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.