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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1421 (KLR)

Musa v Kingdom of Saudi Arabia (Cause E910 of 2022) [2023] KEELRC 1421 (KLR)

Employment and Labour Relations Court
25 May 2023
NMNzioki Wa Makau
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that embassies cannot hide behind diplomatic immunity when sued by domestic staff over private employment disputes.

What this practically means

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Executive summary

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The respondent raised a preliminary objection seeking dismissal of the claimant's employment suit on the ground that it enjoys diplomatic immunity under section 4(1) of the Privileges and Immunities Act cap 173, read with article 2(5) of the Constitution and customary international law, and that no waiver of immunity had occurred. The claimant, a former office driver of the respondent engaged in 1997 and allegedly terminated unlawfully on November 1, 2022 without warning or a hearing, opposed the objection, arguing that immunity is now restrictive rather than absolute and does not cover private employment disputes. He relied on authorities including Lucy Muingo Kusewa v Embassy of Sweden, ICIPE v Nancy McNally and Unicom Ltd v Ghana High Commission. The respondent relied on Elkana Khamisi Samarere v Nigerian High Commission and the Supreme Court's decision in Kandie v Alassane Ba, submitting that immunity outweighs the claimant's right of access to justice and that the claim should be dismissed and the suit struck out. Nzioki Wa Makau J held that sovereign immunity is restrictive, not absolute, and turns on the nature of the dispute: hiring a driver is neither a legislative or international transaction nor a matter of executive policy, so the employment claim falls within the court's jurisdiction. The Samarere and Kandie decisions were distinguished, while Kusewa was held persuasive. The preliminary objection was dismissed with costs to the claimant.

Key legal issues

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01

Whether diplomatic immunity is absolute or restrictive in employment disputes

Holding

Immunity is restrictive and does not bar an employment claim; the nature of the dispute is decisive. A claim for unlawful termination of a driver is a private/commercial matter within the court's jurisdiction.

Reasoning

The court adopted the restrictive immunity doctrine as explained in Unicom Ltd v Ghana High Commission and Lord Denning's dictum in Rahimtoola v Nizam of Hyderabad. Sovereign immunity depends not on the fact that a foreign government is impleaded but on the nature of the dispute. Hiring a driver is not a legislative, international or executive-policy transaction; hence no immunity attaches and the suit is properly before the ELRC.

p. 5
02

Whether the authorities relied on by the respondent (Kandie v Alassane Ba; Elkana Khamisi Samarere) apply

Holding

They are distinguishable and do not apply; Lucy Muingo Kusewa v Embassy of Sweden is persuasive.

Reasoning

The court considered the decisions cited by both parties. The Samarere and Kandie decisions upholding immunity were distinguished on the facts because the present dispute concerns an employment contract of a private nature. The court found the Kusewa decision, holding that restrictive immunity does not cover employment matters, persuasive and aligned with the restrictive doctrine applied here.

p. 5

Legal principles established

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  • Sovereign/diplomatic immunity is restrictive, not absolute; it depends on the nature of the dispute - commercial/private transactions do not attract immunity, while governmental, legislative or international transactions do.
  • Hiring a driver is not a legislative or international transaction nor a suit against the policy of a sovereign, so an employment claim against a diplomatic mission is properly cognizable by Kenyan courts.

Court orders

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  1. 1.The respondent's preliminary objection is dismissed with costs to the claimant
  2. 2.The claimant's suit remains properly before the court

Authorities

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Legislation

  • Privileges and Immunities Actsection 4(1) and Schedules
  • Constitution of Kenya, 2010articles 2(5), 2(6), 24, 25, 48, 50
  • Employment Actgeneral
  • Vienna Convention on Diplomatic Relations 1961article 32
  • UN Convention on Jurisdictional Immunities of States and their Propertygeneral
  • Vienna Convention on the Law of Treatiesgeneral

Cases cited (10)

  • Elkana Khamisi Samarere & another v Nigerian High Commission
    [2013] eKLR
  • Kandie v Alassane Ba & another
    [2017] eKLR
  • Agnes Akinyi Nyameyo v Austrian Embassy, Nairobi Commercial Section & 2 others
    [2021] eKLR
  • Eugine Linyulu Isalambo v Barbro Ekvall
    [2016] eKLR
  • Lucy Muingo Kusewa & another v Embassy of Sweden, Nairobi
    [2017] eKLR
  • International Centre for Insect Physiology and Ecology (ICIPE) v Nancy McNally
    [2018] eKLR
  • Francis Opiche Gonze t/a Plumcom East Africa v Ambassador of Saudi Arabia
    [2017] eKLR
  • Unicom Ltd v Ghana High Commission
    [2016] eKLR
  • Ministry of Defence of the Government of the United Kingdom v Joel Ndegwa
    [1983] eKLR
  • Rahimtoola v Nizam of Hyderbad
    [1958] A.C. 379
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; article 2(5) of the Constitution of Kenya, 2010; Privileges and Immunities Act cap 173, section 4(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Musa v Kingdom of Saudi Arabia (Cause E910 of 2022) [2023] KEELRC 1421 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1421/eng@2023-05-25

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