Rachael Jambiha Ulira v The Ambassador of the Kingdom of Netherlands & Royal Netherlands Embassy

(sic) under the Constitution of Kenya and the Employment Act, 2007. (c) An order directing and/or compelling the Respondents to pay the Claimant the calculated sum being Kshs.2,751,479.8 as particularised in paragraph 14 of the Statement of Claim, with interest at Court rates from the date of filing suit. (d) An order directing and/or compelling the Respondent to issue a certificate of service to the Claimant in accordance with Section 51 of the Employment Act, 2007. DRAFT (e) An order that costs of the suit be awarded to the Claimant, with interest thereon at Court rates from the date of filing of the claim. (f) Any other relief as the Court would deem just and expedient to grant. 2. The Claimant pleaded, inter-alia:(a) that vide a written contract of service, she (the Claimant) was employed by the Respondents as a cook as from 21st January, 2019, earning a basic RULING Nairobi ELRC Cause No. E869 of 2025 2 of 12

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monthly salary of Kshs.108,294/=; and that the said salary was paid into her bank account. (b) that the Claimant worked loyally and diligently until 20th June, 2025 when she was unlawfully terminated from employment vide a letter dated 19th June, 2025. (c) that the Respondents neither housed the Claimant nor paid her in lieu. (d) that ordinarily, the Claimant worked from 6.00 a.m to 3.00 p.m; and that despite working overtime on 16th and 17th June, 2025 when there was an DRAFT official luncheon, the Respondents did not pay her. (e) that the Claimant was entitled to 16 leave days for which she was not paid. (f) that the Respondents refused to issue the Claimant with a certificate of service. 3. Among the documents filed alongside the Claimant’s Statement of Claim are copies of three employment contracts between the Claimant and three (3) different Ambassadors/Heads of Mission of the Embassy of the Kingdom of Netherlands in Nairobi. RULING Nairobi ELRC Cause No. E869 of 2025 The first contract is 3 of 12

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shown to have commenced on 21st January, 2019, the second one on 14th September, 2020, and the third one on 1st July, 2024. 4. The contract commencing on 1st July, 2024 states in part:“Employment contract between Henk Jan Bakker, The Ambassador of the Kingdom of the Netherlands in Nairobi, Kenya (hereinafter called employer) and MS. Rachael Jambiha Ulira, holder of Identity Card nr.23868027 (hereinafter called employee). DRAFT Commencement and period of employment The contract enters into force on 01 July 2024 and will be terminated on the day Ambassador Bakker ends his tour of duty in Kenya . . .” 5. Other documents filed with the Statement of Claim are copies of the Claimant’s itemised pay statements (payslips) shown to have been issued by the Ambassador of the Kingdom of The Netherlands (to Kenya). RULING Nairobi ELRC Cause No. E869 of 2025 4 of 12

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6. Also filed with the Claimant’s Statement of Claim is an NSSF statement on the Claimant’s NSSF contributions, whereon the Claimant’s employer is indicated as having been the Royal Netherlands Embassy. 7. The foregoing puts the 1st and 2nd Respondents at the centre of the Claimant’s contract of service/employment, which is the subject matter in the suit herein. 8. The Respondents filed a Notice of Preliminary Objection dated 27th October, 2025 and called for the Claimant’s DRAFT suit to be struck off in its entirety for want of Jurisdiction on the part of this Court, on grounds:(a) That the 1st Respondent, as the head of the diplomatic mission, is a diplomatic agent within the meaning of Article 1 of the Vienna Convention on Diplomatic Relations (1961) and that by virtue of Article 31 of the Vienna Convention on Diplomatic Relations (1961), which has the force of law in Kenya under Section 4 of the Privileges and Immunities Act (Cap. 179, Laws of Kenya), the RULING Nairobi ELRC Cause No. E869 of 2025 5 of 12

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1st Respondent enjoys immunity from the civil jurisdiction of the Courts of the Republic of Kenya. (b) That the employment of the Claimant and the subsequent termination thereof were acts undertaken by the 1st Respondent in his official capacity as head of the mission, and for the purposes of the sending state, that they do not constitute a "professional or commercial activity" outside his official functions as contemplated under the exception in Article 31(1)(c) of the Vienna Convention. DRAFT (c) That in addition to the immunity from suit, Article 31(2) of the Vienna Convention provides that "A diplomatic agent is not obliged to give evidence as a witness." The 1st Respondent, being a diplomatic agent and head of mission, is shielded by this absolute testimonial immunity. This renders any attempt to litigate the facts against him fundamentally unfair and procedurally untenable, as the Court would be unable to receive his evidence, thereby confirming the jurisdictional bar. RULING Nairobi ELRC Cause No. E869 of 2025 6 of 12

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(d) That the employment contracts relied upon by the Claimant were executed with the Ambassador, as the employer and not the Embassy. There exists no employer-employee relationship between the Claimant and the 2nd Respondent, contrary to Section 12 of the Employment and Labour Relations Court Act, which predicates the Court's jurisdiction on the existence of such a relationship. (e) That the 2nd Respondent enjoys sovereign and diplomatic immunity by virtue of the Vienna Convention on Diplomatic Relations (1961), DRAFT Section 4 of the Privileges and Immunities Act (Cap.179, Laws of Kenya) and under Customary International Law, which immunity has not been waived by the Kingdom of the Netherlands; hence, it is immune from the present proceedings. (f) That the 2nd Respondent does not have legal capacity to sue or to be sued. (g) That the claim is therefore fatally defective, and the Court is divested of jurisdiction to determine it. RULING Nairobi ELRC Cause No. E869 of 2025 7 of 12

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9. The sole issue falling for determination herein is whether this Court is seized of jurisdiction to entertain, to hear and to determine the Claimant’s suit herein. 10. It is worthy noting that the Claimant was locally employed, and that her contract of employment falls within the purview of the Kenyan law, and in particular the Employment Act. 11. Under Article 31 of Vienna Convention, diplomats (as defined in Article 1 of the Convention) have personal immunity, and cannot be sued in civil cases except in cases DRAFT regarding their private land and buildings, private inheritance and business or professional work done by them outside their official duties. On the other hand, a foreign state’s immunity protects the foreign state and its embassy. 12. Kenyan Courts have, for a long time, refused to uphold the concept of absolute immunity. In the case of The Ministry of Defence of the United Kingdom – vs – Joel Ndegwa [1983] KECA 40 (KLR), the Court of Appeal stated as follows:- RULING Nairobi ELRC Cause No. E869 of 2025 8 of 12

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“8. It is apparent that there is no absolute sovereign immunity. It is restrictive. The test is whether the foreign sovereign or government was acting in a governmental or private capacity then the doctrine will apply otherwise it will not afford protection to a private transaction. The nature of the act is, therefore, important”. 13. In the present case, the employment contract(s) signed by the Claimant and transactions/contracts. the Respondents were private The Court of Appeal stated as DRAFT follows in the case of the Embassy of Sweden Nairobi – vs – Lucy Muigo Kusewa & Another [2020] KECA 954 (KLR):“43. A look at the comparative Jurisprudence we have analysed above shows that employment contracts have been held to belong to the Private Law domain and State Immunity does not therefore apply. See Kudak – vs – Lithuani (Supra); Dube and Another – vs – American Embassy and Another, and Sabina RULING Nairobi ELRC Cause No. E869 of 2025 9 of 12

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– vs – South Africa High Commission (Supra). Our Courts have also adopted that approach as can be seen in Karen Njeri case (Supra). We also note that the Respondents were locally employed and their contracts of employment were therefore subject to the Jurisdiction of the Employment and Labour Court. 44. To that extend therefore, we find that the learned Judge did not err in her conclusion that the ELRC had the requisite Jurisdiction DRAFT to entertain the labour dispute in respect of the parties herein . . .” 14. I make a finding that this Court is seized of the requisite jurisdiction to entertain, to hear and to determine the suit herein. 15. Consequently, and having considered written submissions filed on behalf of both parties, I find no merit in the RULING Nairobi ELRC Cause No. E869 of 2025 10 of 12

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Respondents’ Preliminary Objection dated 27 th October, 2025. The same is hereby dismissed with costs. 16. The suit herein shall be fast-tracked, and shall be set down for hearing. 17. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF OCTOBER 2026 AGNES KITIKU NZEI DRAFT JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Mwariri for the Claimant RULING Nairobi ELRC Cause No. E869 of 2025 11 of 12

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Miss Letting for the Respondent DRAFT RULING Nairobi ELRC Cause No. E869 of 2025 12 of 12

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