African Development Bank v Acholla & another (Representatives of the Estate of the Late Bonaventure Eric Acholla) (Civil Appeal 135 of 2002) [2015] KECA 596 (KLR)
The bottom line
#Kenya's Court of Appeal ruled the African Development Bank cannot be sued in Kenyan courts over employment disputes because its immunity covers all claims except borrowing-related ones.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the African Development Bank enjoys immunity from legal process in Kenyan courts in respect of an employment dispute with a former employee under Article 52(1) of the Schedule to the ADB Act
- 2.Whether there is a conflict between Articles 51 and 52 of the Schedule to the ADB Act
- 3.Whether the decision in Tononoka Steels Ltd v Eastern and Southern Africa Trade and Development Bank applies to the present case
- 4.Whether the constitutional rights to fair labour practices and fair hearing under the Constitution of Kenya, 2010 override the statutory immunity
Key legal issues
#Scope of Article 52(1) immunity of the ADB
The Bank enjoys immunity from every form of legal process except cases arising out of the exercise of its borrowing powers; an employment dispute does not fall within the exception, so the suit cannot proceed in a Kenyan court
The court applied the plain, natural and ordinary meaning of Article 52(1), holding the provision clear and unambiguous. The dispute between the deceased and the Bank arose from an employment contract, unrelated to borrowing powers, so immunity applied and the High Court lacked jurisdiction.
Rationale for immunity of international organisations in employment matters
Immunity from employee suits is rooted in the need to protect international organisations from unilateral control by host states and to preserve their independence and multi-national character
Drawing on Mukuro, Bertolucci, Mendaro and Broadbent, the court held that subjecting an international organisation to the domestic courts of each host country would fragment its independence, create divided decisions across jurisdictions, and hamper its functions; internal dispute resolution mechanisms are the remedy for employees.
Distinguishing Tononoka Steels
Tononoka is distinguishable because that immunity was granted by ministerial legal notice and concerned a commercial transaction, whereas here immunity is enacted in an Act of Parliament and the dispute is employment-related
The court agreed with the appellant and the Attorney-General that Tononoka concerned a private commercial transaction under a gazette notice, whereas the ADB's immunity is statutory. Employment claims are non-commercial and cannot be stretched into commercial transactions.
Interaction with the Constitution of Kenya, 2010
Articles 41 and 50 rights are justiciable but limitable under Article 24; the ADB Act, as a ratified treaty instrument under Article 2(6), forms part of Kenyan law and its immunity provision is a lawful limitation
The court accepted that the 2010 Constitution enshrines labour rights and access to justice, but held that ratified treaties form part of Kenyan law and that pre-2010 laws must be construed in conformity with the Constitution. The immunity constitutes a reasonable and justifiable limitation under Article 24.
Alleged conflict between Articles 51 and 52
No conflict exists between the Bank's capacity to institute legal proceedings under Article 51 and its immunity under Article 52
The court rejected the respondent's argument that Article 51's grant of capacity to institute proceedings contradicts Article 52's immunity, finding the arguments of the appellant and Attorney-General forceful and persuasive on the rationale for the immunity.
Legal principles established
#- The African Development Bank enjoys immunity from every form of legal process in Kenyan courts except in cases arising out of the exercise of its borrowing powers, and this immunity covers employment disputes with its staff
- There is no conflict between Article 51 (capacity to institute legal proceedings) and Article 52(1) (immunity from legal process) of the Schedule to the ADB Act
- The relationship of an international organisation with its internal administrative staff is non-commercial, and absent waiver, employment-related claims cannot found an action against the organisation
- Constitutional labour rights and the right of access to court under the Constitution of Kenya, 2010 can be limited under Article 24, and immunity of international organisations enacted before 2010 is such a permissible limitation
Court orders
#- 1.Appeal allowed
- 2.Ruling of the learned judge set aside
- 3.In its place, an order made allowing the chamber summons application dated 6th June 2001 (i.e. striking out the amended plaint)
- 4.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C No 3157 of 1996
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal of Kenya); appeal against a ruling striking out a plaint on grounds of immunity from legal process
Relief refused
#Costs against the respondent
The appellant stated it did not seek costs against the respondent in the event of the appeal succeeding
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above is that the appeal is allowed, the ruling of the learned judge set aside, and in its place, an order made allowing the chamber summons application dated 6th June, 2001.
As the appellant did not wish to have costs, we order that each party shall bear their own costs.
The plain, natural and ordinary interpretation of this provision is that the appellant bank cannot be sued in a domestic court, unless the dispute arises out of an exercise of its borrowing powers, which is not the case here.
We have therefore come to the inevitable conclusion that the appellant is vested with diplomatic immunity.
It is also important to point out that the immunity is granted to the International Organisation and not to the individual
Issues in the judgment
#The judgment renders the appellant's counsel's name inconsistently ('Ojiambo' and 'Mr Namada' for the respondent is consistent, but appellant's counsel appears as 'Mr. Ojiambo' throughout); no material contradiction, noted for completeness only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Embassy of Sweden, Nairobi v Kusewa & another (Civil Application E002 of 2020) [2026] KECA 1122 (KLR)[2026] KECA 1122 (KLR)12 Jun 2026
- St John of God Hospital Tigania v Michubu (Legal Representative of the Estate of Agnes Kawira) (Civil Application E052 of 2024) [2026] KECA 744 (KLR)[2026] KECA 744 (KLR)24 Apr 2026
- Anne Wangui Ngugi & 524 Others v Retirement Benefits Authority & another [2016] KEELRC 1672 (KLR)[2016] KEELRC 1672 (KLR)10 Feb 2016
Cite this brief
#Cite this brief
Caselaw, "African Development Bank v Acholla & another (Representatives of the Estate of the Late Bonaventure Eric Acholla) (Civil Appeal 135 of 2002) [2015] KECA 596 (KLR)", Case Analysis (2015). Civil Appeal No 135 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/596/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.