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Court of AppealPartially AllowedCivil Appeal No. 103 of 2018

Cyriaque Havyariamana v Permanent Secretariat of the Transit and Transport Co-ordination Authority of the Northern Corridor & another [2019] KECA 900 (KLR)

Court of Appeal of Kenya
7 March 2019
3,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that embassies and international organisations cannot automatically use diplomatic immunity to dodge employment lawsuits—the case must be heard in full.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Kiage, JJ.A) allowed an appeal against a ruling of the Employment and Labour Relations Court (Makau, J) which had upheld a preliminary objection asserting diplomatic immunity and struck out the appellant's employment suit against the Permanent Secretariat of the Northern Corridor Transit and Transport Co-ordination Authority and its Executive Secretary. The appellant, a Burundian national employed as a Conference Officer/Translator, alleged unfair and wrongful termination of employment and sought substantial reliefs. The appellate court framed a single question: whether the learned Judge erred in upholding the preliminary objection and striking out the suit on jurisdictional grounds of diplomatic immunity. Applying the Mukisa Biscuits principle that a preliminary objection must be a pure point of law on uncontested facts, the Court distinguished its own decision in Karen Njeri Kandie v Alassane Ba, where immunity was uncontested, and held that here the character and scope of the claimed immunity depended on contested facts - notably whether the appellant's duties were of a public law or private law character. The Court relied on Article 11 of the Convention on Jurisdictional Immunities of States and their Properties, which bars immunity pleas in employment contract proceedings absent recruitment to exercise governmental authority, and followed ICIPE v Nancy McNally, holding that whether immunity is absolute, qualified or restricted must be explored at a full hearing. The Court set aside the orders striking out the suit, dismissed the preliminary objection, remitted the suit to the Employment and Labour Relations Court before a judge other than Makau, J, and ordered each party to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred and exercised his discretion improperly in upholding the preliminary objection and striking out the appellant's suit on the basis that the Employment and Labour Relations Court had no jurisdiction, the respondents being clothed with diplomatic immunity

Key legal issues

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01

Whether a preliminary objection founded on diplomatic immunity is proper where the facts are contested

Holding

It is not. A preliminary objection must be a pure point of law on undisputed facts; here the incidence and character of the immunity was strongly contested, making the objection inappropriate.

Reasoning

Applying Mukisa Biscuits, the Court held that a preliminary objection assumes all facts pleaded by the other side are correct. The plea of immunity depended on whether the appellant's employment was public or private in character, a factual contest requiring inquiry. Following ICIPE v McNally and the Convention on Jurisdictional Immunities of States, the extent of immunity turns on the employee's duties and cannot be resolved summarily.

p. 3
02

Whether a state or international organization can invoke immunity against a suit arising from a contract of employment

Holding

Under Article 11 of the Convention on Jurisdictional Immunities of States and their Properties, immunity cannot generally be invoked in employment contract proceedings unless the employee was recruited to exercise governmental authority or falls within the other paragraph 2 exceptions; the respondents had not established this.

Reasoning

The Court adopted the Convention as an authoritative statement of customary international law (per Lord Sumption in Reyes v Al Malki). A party pleading immunity had to establish that the employee's duties fell within the paragraph 2 exceptions such as recruitment to exercise governmental authority. As a junior translator, the appellant asserted there was nothing in his duties constituting 'sovereign acts', a question unsuitable for summary determination.

p. 4
03

Whether immunity is a legitimate limitation of the right of access to justice that can be determined at a preliminary stage

Holding

While immunity may properly be the subject of a preliminary objection when uncontested, its full tenor and effect - whether absolute, qualified or restricted - must be explored at a full hearing where, as here, constitutional issues are raised.

Reasoning

Distinguishing Karen Njeri Kandie v Alassane Ba, where the plea of immunity was a proper threshold issue on agreed facts, the Court followed ICIPE v McNally, holding that the Privileges and Immunities Act and the immunity instruments must be examined together at full hearing to determine whether the immunity is absolute or qualified before a court's jurisdiction can be finally barred.

p. 4

Legal principles established

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  • A preliminary objection may only be upheld where it raises a pure point of law on facts that are not contested; where the character and scope of a claimed diplomatic immunity depends on contested facts about the nature of the employee's duties, the objection is inappropriate and the matter must go to full hearing
  • In employment disputes with organizations enjoying diplomatic immunity, the availability of the immunity plea depends on the character and scope of the employee's duties, in particular whether the employment relationship is of a public law or private law nature

Court orders

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  1. 1.The orders of the Employment and Labour Relations Court upholding the preliminary objection and striking out the suit are set aside
  2. 2.The preliminary objection is dismissed
  3. 3.The suit shall proceed to hearing before a judge of the Employment and Labour Relations Court, other than Makau, J.
  4. 4.Each party shall bear own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
Civil Suit No. 922 of 2016
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the Employment and Labour Relations Court

Relief refused

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Declaration that the respondent has no diplomatic immunity in Employment and Labour Relations cases

Counsel attempted to introduce prayers not in the memorandum of appeal; the Court limited itself to setting aside the orders striking out the suit

p. 3

Declaration that the Employment and Labour Relations Court has jurisdiction to hear and determine the suit to its finality

Not granted as a standalone declaration; the suit was remitted for full hearing instead

p. 5

Costs

Each party shall bear own costs of the appeal.

Quotable passages

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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 has long been the law as pronounced by the MUKISA BISCUITS case (supra) that a preliminary objection should only be raised if it entails a pure point of law and is predicated on non-contested facts.
p. 3preliminary objections - pure point of law
the extent to which the plea of diplomatic immunity can be raised to resist a suit brought by an employee will depend largely on the character and scope of the duties performed by the employee and in particular whether the employment relationship was of a public law or private law nature.
p. 4diplomatic immunity in employment disputes
The upshot of our consideration is that the learned Judge fell into error in upholding the preliminary objection and striking the suit in the circumstances of the case. We set aside those orders.
p. 5disposition - setting aside orders below
The suit shall proceed to hearing before a judge of the Employment and Labour Relations Court, other than Makau, J.
p. 5final orders - remittal for hearing
Each party shall bear own costs of the appeal.
p. 5costs

Issues in the judgment

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minor

The name of the appellant is rendered inconsistently within the judgment - the title page reads 'CYRIAQUE HAVYARIAMANA' while the body reads 'Cryriaque Havyariamana'

minor

The Court refers to the appellant as a 'telephone operator' when the claim describes him as a Conference Officer/Translator

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, "Cyriaque Havyariamana v Permanent Secretariat of the Transit and Transport Co-ordination Authority of the Northern Corridor & another [2019] KECA 900 (KLR)", Case Analysis (2019). Civil Appeal No. 103 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/900/eng@2019-03-07

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