Unicom Limited v Ghana High Commission [2016] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that foreign embassies can be sued over commercial deals like leases, since immunity only covers governmental acts, not private transactions.
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 Ghana High Commission is entitled to claim sovereign/diplomatic immunity from the appellant's suit founded on a tenancy agreement
- 2.Whether immunity, if any, was waived under clause 3(ii) and clause 1(xii) of the tenancy agreement
- 3.Whether the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 forms part of Kenyan law
Key legal issues
#Entitlement of the Ghana High Commission to sovereign/diplomatic immunity from a suit on a tenancy agreement
The High Commission was acting in a private, not governmental, capacity when it entered the tenancy agreement and is therefore not entitled to immunity from the suit.
The Court applied the restrictive doctrine of immunity adopted in Ministry of Defence v Joel Ndegwa and Tononoka Steels: immunity attaches only to governmental acts, not private or commercial ones. The relationship between the parties was purely a landlord-tenant one. Even though the purpose of the letting was to house the diplomatic mission, the nature of the transaction, not its purpose, is decisive. Lord Denning's opinion in Thai-Europe Tapioca that a landlord-tenant agreement would not enjoy immunity fortified the Court.
Status of the UN Convention on Jurisdictional Immunities of States and Their Property, 2004 in Kenyan law
The Convention is not part of Kenyan law because Kenya has not ratified it; it could not be invoked either by the parties or by the Court.
Counsel argued the appeal on the basis of the 2004 UN Convention, but that Convention was neither invoked by the lower court nor in force, requiring the deposit of thirty instruments of ratification. Under Article 2(6) of the Constitution only ratified treaties form part of Kenyan law. Relying on Karen Njeri Kandie v Alssane B, the Court noted there is no evidence Kenya has ratified the Convention and it does not reflect Kenyan law on the subject.
Whether immunity was waived under clauses 3(ii) and 1(xii) of the tenancy agreement
The Court found it unnecessary to resolve waiver definitively, resting its decision on the restrictive doctrine of immunity; the submission on implied waiver under the Convention was noted but the appeal was decided on the nature of the transaction.
The appellant contended that clause 3(ii), authorising the landlord to take 'whatever action they think fit', and the arbitration clause 1(xii) amounted to submission to Kenyan jurisdiction. The respondent, invoking Article 7 of the UN Convention, argued waiver cannot be implied and requires express consent. Since the Court held the transaction was non-immune in the first place, waiver did not determine the outcome.
Legal principles established
#- Sovereign and diplomatic immunity in Kenya is restrictive, not absolute; foreign states are not immune in respect of purely private or commercial transactions.
- The critical determinant of immunity is the nature of the transaction or dispute, not the identity of the foreign government or the purpose for which it entered the transaction.
- A tenancy agreement entered into by a foreign state or diplomatic mission is a private, commercial transaction in respect of which the mission may be sued.
- A treaty or convention not ratified by Kenya does not form part of Kenyan law under Article 2(6) of the Constitution.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court dated 9th December 2011 set aside
- 3.Substituted order dismissing the respondent's application dated 27th July 2011
- 4.Appellant awarded costs of the application in the High Court and costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 256 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal from a ruling of the High Court exercising original civil jurisdiction
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.
It is therefore the nature of the dispute that is critical in determining whether or not our courts will take cognizance of a dispute where immunity is pleaded.
We, too, agree that the doctrine of absolute immunity would be anachronistic, and has been for some time now. What immunity there is must be restricted or qualified so that private or commercial activities cannot be immunized.
In our judgment therefore, in entering into the tenancy agreement with the appellant, the respondent was doing so in a private, rather than in a governmental capacity, and the appellant was entitled to bring the action against it based on the tenancy agreement.
We accordingly allow the appeal and set aside the order of the court given on 9th December, 2011 and substitute therewith an order dismissing the respondent?s application dated 27th July, 2011.
The appellant shall have the costs of that application in the High Court as well as the costs of this appeal.
Issues in the judgment
#The judgment states the lower court struck out the suit on 9th December 2011 in HCCC No. 256 of 2011, and the opening lines describe it as a 'Ruling and Order... dated 9th day of December, 2011', but the disposition later refers to 'the order of the court given on 9th December, 2011' using a slightly different formulation of the same date; the appeal itself was lodged from a 2011 ruling in an appeal numbered 56 of 2014 with no explanation of the interval.
The ruling below is described as grounded on the Privileges and Immunities Act and the Vienna Convention on Diplomatic Relations, yet paragraph 7 quotes the Judge as referring to 'diplomatic immunity from all legal processes unless in instances where the immunity is waved', using 'waved' where 'waived' is evidently meant; the same misspelling appears in the appellant's submission narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unicom Limited v Ghana High Commission [2016] KECA 75 (KLR)", Case Analysis (2016). Civil Appeal No. 56 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/75/eng@2016-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.