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ELRCOther· [2024] KEELRC 2393 (KLR)

Mahonga v Weiss (Employment and Labour Relations Cause 426 of 2018) [2024] KEELRC 2393 (KLR)

Employment and Labour Relations Court
30 September 2024
BMB. O. M. Manani
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a UN diplomat cannot use immunity to block a former house help's unfair termination claim.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging she was employed as his house help from 12th July 2012 until her contract was unlawfully terminated on 25th March 2017, and sought compensation for unfair termination. The Respondent denied the employment relationship, contending he has worked as a diplomatic agent for the United Nations Support Office based in Somalia since mid-2016, and filed a Notice of Preliminary Objection dated 17th January 2024 seeking that the case be declared a nullity on grounds of diplomatic immunity under the Vienna Convention on Diplomatic Relations as domesticated by the Privileges and Immunities Act, Cap 179. The Claimant opposed, arguing the Respondent's diplomatic status was contested and that immunity is not absolute. The court held that diplomatic immunity attaches only in and against a receiving State; the Respondent was assigned to Mogadiscio, Somalia from 6th June 2016, so Kenya was not a receiving State during the alleged employment period. The diplomatic identity card issued on 14th December 2022 could not operate retrospectively. Further, under Article 39(2) of the VCDR, any immunity over private activities lapsed when he left the receiving State, and private activities such as employing domestic staff fall outside official functions, as confirmed by the Supreme Court in Karen Njeri Kandie v Alassane Ba, the UK Supreme Court in Reyes v Al Malki, and the Court of Appeal in Embassy of Sweden Nairobi v Kusewa. The preliminary objection was dismissed with costs to the Claimant, leaving the main claim to proceed to full hearing.

Key legal issues

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01

Whether the Respondent enjoyed diplomatic immunity from these employment proceedings

Holding

The preliminary objection fails; the Respondent was not a diplomatic agent for whom Kenya was the receiving State during the period of the alleged contract, and any immunity had lapsed

Reasoning

The Respondent was assigned by the United Nations to Mogadiscio, Somalia from 6th June 2016, so Kenya was not the receiving State during the alleged employment period (2012–2017). He did not claim consular status under the VCCR. The diplomatic ID card issued in December 2022 could not operate retrospectively. Under Article 39(2) VCDR, any immunity for private activities lapsed when he left Kenya. Restrictive immunity principles also apply to employment contracts.

p. 4
02

Whether diplomatic immunity is absolute

Holding

No; immunity is not absolute and cannot be used to avoid liabilities arising from private activities such as employment of domestic staff

Reasoning

Relying on Karen Njeri Kandie v Alassane Ba (Supreme Court) and Reyes v Al Malki (UKSC), the court held that private activities, including employment of domestic staff, fall outside official functions, and immunity in respect of such acts lapses under Article 39(2) VCDR when the agent leaves the receiving State. The Court of Appeal in Embassy of Sweden Nairobi v Kusewa affirmed that employment contracts belong to the private law domain where state immunity does not apply.

p. 5

Legal principles established

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  • Diplomatic immunity under the VCDR attaches only in and is enforceable against a receiving State; a diplomatic agent cannot invoke it against proceedings in a non-receiving State
  • A diplomatic identity card cannot operate retrospectively to confer immunity for a period predating its issuance
  • A diplomatic agent's immunity for private activities lapses upon leaving the receiving State pursuant to Article 39(2) of the VCDR

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 17th January 2024 is dismissed
  2. 2.Costs of the objection to the Claimant

Authorities

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Legislation

  • Privileges and Immunities ActCap 179, section 4(1)
  • Privileges and Immunities ActCap 179, section 5(1)
  • Privileges and Immunities ActCap 179, Part IV
  • Powers and Privileges Actsection 2
  • Vienna Convention on Diplomatic RelationsArticle 1(e), Article 31(1)(a)(b)(c), Article 39(2)
  • Vienna Convention on Consular RelationsArticle 43, Article 53(3) and (4)
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Karen Njeri Kandie v Alassane Ba & another
    [2017] eKLR
  • Reyes v Al Malki and another
    [2017] UKSC 61
  • Embassy Of Sweden Nairobi v Kusewa & Another
    (Civil Appeal 345 Of 2017) [2020] KECA 954 (KLR) (24 April 2020)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the claim; objection based on diplomatic immunity under the Vienna Convention on Diplomatic Relations as domesticated by the Privileges and Immunities Act, Cap 179

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, "Mahonga v Weiss (Employment and Labour Relations Cause 426 of 2018) [2024] KEELRC 2393 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2393/eng@2024-09-30

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