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Court of AppealDismissedCivil Appeal (Nairobi)

Embassy of the Kingdom of Belgium in Nairobi v Mande (Civil Appeal 184 of 2019) [2025] KECA 214 (KLR)

Court of Appeal of Kenya
7 February 2025
2,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that diplomatic immunity claims in employment disputes cannot be decided summarily and must go through a full hearing.

What this practically means

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Executive summary

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The Embassy of the Kingdom of Belgium appealed a ruling of the Employment and Labour Relations Court delivered on 5th May 2017 dismissing its Notice of Motion seeking to strike out a claim by Charles Gitau Mande, a locally recruited gardener summarily dismissed in March 2013 on allegations of theft. The Embassy argued it lacked capacity to be sued, that it enjoyed diplomatic immunity under the Privileges and Immunities Act, the Vienna Convention on Diplomatic Relations as domesticated by Article 2(5) of the Constitution, and customary international law, and that the trial Judge erred in failing to determine jurisdiction conclusively before proceeding. The respondent countered that immunity is restrictive in employment matters of a private-law character and that the issues could not be resolved at an interlocutory stage. The Court of Appeal, per Kiage, Achode and Odunga JJA in a single judgment, held that on an interlocutory appeal a court may only express prima facie views so as not to embarrass the trial court or tie the hands of the trial judge. Applying Owners of Motor Vessel 'Lilian s', the Court held that where jurisdiction depends on facts not yet established, the determination may properly be postponed. Relying on the Supreme Court's Shelter Afrique decision and this Court's ICIPE decision, it further held that claims of diplomatic immunity limiting rights such as access to justice and fair labour practices require a full process, not a summary preliminary objection. The trial Judge's ruling was affirmed and the appeal dismissed with costs, the main suit remaining pending before the trial court.

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 trial Judge erred in not making a conclusive finding on the issue of jurisdiction and whether she ought to have found that the court had no jurisdiction to entertain the respondent's claim against the appellant

Key legal issues

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01

Whether a trial court must conclusively determine jurisdiction before proceeding where jurisdiction depends on facts not yet established

Holding

A court may postpone its jurisdictional determination where the facts necessary to establish jurisdiction are not clear at the interlocutory stage

Reasoning

While an absence of jurisdiction obliges a court to down its tools, jurisdiction may depend on the existence of particular facts. If those facts are unclear, a court cannot determine jurisdiction in the dark; the reasonable course is to postpone the determination pending establishment of all necessary facts, lest the court first assume jurisdiction and later find it had none.

p. 5
02

Whether diplomatic immunity could be upheld on a preliminary objection in an employment claim implicating constitutional rights

Holding

Diplomatic immunity limiting rights such as access to justice and fair labour practices must be examined through the Article 24 limitation analysis and cannot be resolved summarily by a preliminary objection

Reasoning

The employment claim engaged Article 41 fair labour practices; immunity provisions limit rights such as access to justice. Following the Shelter Afrique and ICIPE decisions, the immunity's absolute, qualified or restricted character, and its justifiability under Article 24, must be examined through a full process, not a summary one like a preliminary objection.

p. 4
03

The proper approach of an appellate court on an interlocutory appeal

Holding

An appellate court on an interlocutory appeal must not make conclusive findings that would prejudice the pending main trial

Reasoning

To avoid embarrassing the trial court and tying the hands of the judge who will eventually hear the case, the appellate court confines itself to prima facie views. The trial Judge did not err in deferring conclusive determination of the immunity and proper-party questions to the full hearing.

p. 3

Legal principles established

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  • At an interlocutory stage an appellate court may only express prima facie views and must not make conclusive findings that would tie the hands of the trial judge
  • Where a court's jurisdiction depends on the existence of particular facts which are not yet established, it may postpone the jurisdictional determination pending establishment of all necessary facts
  • A claim of diplomatic immunity that limits constitutional rights such as access to justice and fair labour practices cannot be resolved summarily by way of a preliminary objection; a full process of examination is required

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay the 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, Nairobi
null
Jurisdiction invoked
First appellate jurisdiction over interlocutory appeals from the Employment and Labour Relations Court (Court of Appeal Act); the appeal challenged a ruling on diplomatic immunity under the Privileges and Immunities Act and Article 2(5) of the Constitution

Relief refused

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Allowing the appeal and the Notice of Motion dated 28th November 2016 striking out the respondent's Memorandum of Claim

At an interlocutory stage the court may only express prima facie views; the issues raised required further interrogation before a conclusive determination on jurisdiction could be made

p. 5

Remitting the matter to the trial court to determine the question of its jurisdiction (alternative prayer)

The trial Judge had already rightly taken the position that the issues required further interrogation; a conclusive view on appeal would embarrass the trial court

p. 5

Costs

The appeal is dismissed with costs to the respondent

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.

The practice is and has always been that at an interlocutory stage the court may only express its views in the matters in controversy on a prima facie basis.
p. 3interlocutory appeals - prima facie findings only
If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction
p. 5jurisdiction dependent on facts
There is certainly a process to follow before reaching that conclusion, and the process is not a summary one like a PO.
p. 5diplomatic immunity cannot be determined by preliminary objection
In the premises we find no merit in this appeal which we hereby dismiss with costs.
p. 5final orders - dismissal

Issues in the judgment

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minor

The judgment text is internally inconsistent in naming the employer/employee in the opening paragraph, stating the respondent was 'locally recruited as a gardener by the respondent'

minor

Paragraph 13 is truncated mid-quote; the quoted passage from Union of Civil Servants v IEBC ends abruptly at a numbering mark '46.' with no closing quotation text

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, "Embassy of the Kingdom of Belgium in Nairobi v Mande (Civil Appeal 184 of 2019) [2025] KECA 214 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/214/eng@2025-02-07

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