Cyriaque Havyariamana v Permanent Secretariat of the Transit and Transport Co-ordination Authority of the Northern Corridor & another [2019] KECA 900 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether a preliminary objection founded on diplomatic immunity is proper where the facts are contested
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.
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.
Whether a state or international organization can invoke immunity against a suit arising from a contract of employment
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.
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.
Whether immunity is a legitimate limitation of the right of access to justice that can be determined at a preliminary stage
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.
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.
Legal principles established
#- 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
#- 1.The orders of the Employment and Labour Relations Court upholding the preliminary objection and striking out the suit are set aside
- 2.The preliminary objection is dismissed
- 3.The suit shall proceed to hearing before a judge of the Employment and Labour Relations Court, other than Makau, J.
- 4.Each party shall bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
Each party shall bear own costs of the appeal.
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 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.
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.
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.
The suit shall proceed to hearing before a judge of the Employment and Labour Relations Court, other than Makau, J.
Each party shall bear own costs of the appeal.
Issues in the judgment
#The name of the appellant is rendered inconsistently within the judgment - the title page reads 'CYRIAQUE HAVYARIAMANA' while the body reads 'Cryriaque Havyariamana'
The Court refers to the appellant as a 'telephone operator' when the claim describes him as a Conference Officer/Translator
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.