Akbarali Karim Kurji v United Nations High Commissioner For Refugees & 1 other

that the 1st Respondent’s motor vehicle was insured by Geminia Insurance Company Limited and that the 2nd Respondent was charged and convicted of a traffic offence arising from the said accident. 3. Consequently, the Appellant instituted proceedings before the subordinate court seeking general and special damages. The Respondents entered appearance, filed a statement of defence, participated in the proceedings, and requested that the Appellant be subjected to medical examination by their doctor. 4. The Respondent subsequently raised a Preliminary Objection dated 24th May 2024 contending that the trial court lacked jurisdiction to entertain the suit by virtue of diplomatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations, 1961 and the Privileges and Immunities Act, Cap 179 Laws of Kenya. 5. The Appellant opposed the Preliminary Objection through a Replying Affidavit sworn on 4th June 2024 contending that the issue of immunity raised contested factual matters unsuitable for determination through a preliminary objection. 6. In its ruling delivered on 18th October 2024, the trial court considered the principles governing Preliminary Objections as laid down in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696 and held that HCCA E1278/2024 immunity from legal process constitutes a 2

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jurisdictional issue capable of being raised through a Preliminary Objection and requiring determination in limine. 7. The trial court further considered Article 31 of the Vienna Convention on Diplomatic Relations and the decision in Eugine Linyulu Isalambo vs. Barbro Ekvall [2016] eKLR. The court found that there was no evidence demonstrating that the Respondents were engaged in commercial activities outside official functions at the material time. 8. Consequently, the court upheld the Preliminary Objection in respect of the 1st Respondent on the basis of diplomatic immunity but declined to extend the same protection to the 2nd Respondent for want of proof regarding his entitlement to immunity. The Appeal 9. Aggrieved by the trial court’s determination, the Appellant lodged the present Appeal vide a Memorandum of Appeal dated 6th November 2024 wherein he challenges the legality and propriety of the ruling. The Appellant listed several grounds of appeal, namely that the learned trial magistrate erred: a) By entertaining and determining a Preliminary Objection founded on contested facts; b) By finding that the 1st Respondent enjoyed diplomatic immunity without proof having been adduced by the Respondents; HCCA E1278/2024 3

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c) By treating diplomatic immunity as absolute contrary to the doctrine of restrictive immunity; d) By failing to appreciate that Article 31 of the Vienna Convention applies to diplomatic agents and not necessarily international organizations; e) By failing to consider the provisions of the Privileges and Immunities Act regarding proof of entitlement to immunity; f) By failing to consider whether the subject motor vehicle was being used for official duties at the material time; g) By failing to adequately consider the Appellant’s submissions, authorities, and constitutional arguments concerning access to justice and fair hearing; h) By applying wrong principles of law and thereby arriving at an erroneous decision. 10. The Appellant seeks orders to set aside the ruling of the subordinate court and to substitute it with an order dismissing the Preliminary Objection. 11. The appeal was canvassed by way of written submissions which I have considered. The Appellant’s Submissions 12. The Appellant submitted that the Preliminary Objection was improperly raised because the issues surrounding immunity required factual investigation and evidentiary proof. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd HCCA E1278/2024 4

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(1969) EA 696 and Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR for the proposition that a Preliminary Objection cannot be sustained where facts are contested. 13. It was further submitted that the Respondents failed to produce any ministerial certificate, order, or documentary evidence under Sections 9, 16 and 17 of the Privileges and Immunities Act establishing the 1st Respondent’s entitlement to immunity. 14. The Appellant contended that the issue whether the subject motor vehicle was being used in official duties at the time of the accident remained unresolved and required evidentiary interrogation during the trial. 15. The Appellant further submitted that diplomatic immunity is not absolute and that modern international law recognizes the doctrine of restrictive immunity. For this argument, the Appellant cited the decisions in Republic of Kenya All War Heroes & Others vs. Attorney General & Others [2017] eKLR and Karen Njeri Kandie vs. Alassane Ba & Another [2017] eKLR. 16. The Appellant further argued that the trial court failed to give effect to constitutional guarantees under Articles 48 and 50 of the Constitution concerning access to justice and fair hearing. 17. It was submitted that the Respondents bore the evidential burden HCCA E1278/2024 under Section 107 of the Evidence Act to 5

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demonstrate that the 2nd Respondent was acting within his official duties and that the immunity claimed properly attached to the circumstances of the accident. 18. The Appellant urged the Court to allow the Appeal, set aside the impugned ruling, and strike out the Preliminary Objection. The Respondents’ Submissions 19. The Respondents submitted that the 1st Respondent, being part of the United Nations system, enjoys immunity under Article 31 of the Vienna Convention on Diplomatic Relations, the United Nations Convention, and the Privileges and Immunities Act, Cap 179 Laws of Kenya. 20. It was submitted that immunity from legal process constitutes a jurisdictional issue properly raised through a Preliminary Objection. 21. The Respondents argued that international organizations enjoy immunity from civil and criminal process unless such immunity is expressly waived. 22. Reliance was placed on the cases of; Thai-Europe Tapioca Service Ltd vs. Government of Pakistan [1975] 3 All ER 961; Josephine Wairimu Wanjohi vs. International Committee of the Red Cross [2015] eKLR; Ministry of Defence of the Government of the United Kingdom vs. Ndegwa [1983] eKLR and Samuel Kamau Macharia vs. Kenya Commercial Bank HCCA E1278/2024 6

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& 2 Others, Supreme Court Civil Application No. 2 of 2011. 23. The Respondents submitted that Article 2(5) and (6) of the Constitution incorporates international law and treaties ratified by Kenya into domestic law. 24. It was further argued that the immunity enjoyed by international organizations such as the United Nations can only be waived through the procedure established under the Privileges and Immunities Act and that no such waiver had been demonstrated. 25. The Respondents maintained that the trial court correctly found that it lacked jurisdiction and urged this Court to uphold the ruling and dismiss the Appeal with costs. Analysis and Determination 26. Having considered the Memorandum of Appeal, the Record of Appeal, the rival submissions, and the applicable law, I find that the main issues for determination are whether the Preliminary Objection raised before the trial court met the threshold established Respondent in established law and entitlement whether to the 1st diplomatic or organizational immunity. 27. The law governing Preliminary Objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (supra) the Court held that a Preliminary Objection consists of a pure point of law argued on the HCCA E1278/2024 7

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assumption that all pleaded facts are correct and which cannot be raised where facts require ascertainment. 28. In the present case, the Appellant argued that several factual issues required determination, including; whether the 1st Respondent properly enjoyed immunity, whether the vehicle was being used for official functions, whether the 2nd Respondent acted within the course of official duties and whether the immunity claimed was absolute or restrictive in nature. Indeed, the trial magistrate observed that the issues raised required evidentiary proof when she held, in part, that: “There has been no proof provided by the Plaintiff that the Defendants were operating activities incidental to daily life but rather to commercial activities engaged in for personal profit outside official duties. I also note that there has been no evidence provided by the Defendants over the immunity enjoyed by the 2nd Defendant despite the fact that he was the driver of the subject vehicle.” 29. The record shows that no evidentiary material such as ministerial certification under Section 16 of the Privileges and Immunities Act was produced before the trial court to conclusively establish the immunity claimed. 30. This Court notes that the learned magistrate nonetheless proceeded to determine that the 1st Respondent enjoyed immunity while simultaneously observing that no evidence had been tendered regarding the 2nd Respondent’s entitlement thereto. HCCA E1278/2024 8

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31. In my considered view, the question whether the immunity attached to the particular circumstances of the accident was not a straightforward pure point of law but, as correctly acknowledged by the trial court, involved factual considerations requiring evidentiary interrogation. 32. Article 31 of the Vienna Convention on Diplomatic Relations provides immunity to diplomatic agents from criminal, civil, and administrative jurisdiction subject to stated exceptions. 33. Further, Sections 9, 16 and 17 of the Privileges and Immunities Act govern the conferment and proof of privileges and immunities upon international organizations operating within Kenya. 34. The Respondents, on the other hand, argued that the 1st Respondent automatically enjoyed immunity as part of the United Nations system. I find that the Appellant correctly observed that no order, ministerial declaration, or certificate contemplated under the Act was produced before the subordinate court. 35. In Karen Njeri Kandie vs. Alassane Ba & Another [2017] eKLR, the Supreme Court acknowledged the doctrine of restrictive immunity and emphasized that immunity is not necessarily absolute in all circumstances. 36. Similarly, in Republic of Kenya All War Heroes & Others vs. Attorney General & Others [2017] eKLR, HCCA E1278/2024 9

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the Court recognized that immunity depends on the nature of the dispute and the applicable legal framework. 37. This Court is persuaded that the learned trial magistrate prematurely determined the issue of immunity without sufficient evidentiary basis. 38. Jurisdiction is fundamental and flows from the Constitution and statute as stated in Samuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others (supra). However, before declining jurisdiction on the basis of immunity, the court must first satisfy itself that the immunity claimed has been properly established in law and fact. 39. This Court international diplomatic agrees that purposes and immunity including international serves the functions. important protection of Nevertheless, immunity cannot merely be presumed where contested factual matters remain unresolved and where statutory requirements concerning proof have not been satisfied. 40. This Court therefore finds that the learned trial magistrate erred in conclusively determining the issue through a Preliminary Objection despite the existence of contested factual matters requiring evidence. Disposition 41. Accordingly, I make the following orders: a) The Appeal is hereby allowed. b) The ruling and orders of Hon. T.E. Marienga delivered on 18th October 2024 in Milimani CMCC No. E3542 of 2020 are hereby set aside. HCCA E1278/2024 10

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c) The Respondents’ Preliminary Objection dated 24th May 2024 is hereby dismissed. d) The suit shall proceed before the subordinate court for hearing and determination on merits before a magistrate other than Hon. T.E. Marienga. e) Costs of this Appeal shall abide the outcome of the main suit. 42. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026. HON W. A. OKWANY JUDGE In the presence of Wainaina for Appellant No appearance for Respondent Abdirzak - Court Assistant HCCA E1278/2024 11

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