Nyasimi v Huyer & 3 others (Civil Appeal E560 of 2021) [2025] KECA 758 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that ILRI and its employee were immune from a libel suit, so the case could not proceed in Kenyan courts.
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 1st and 3rd respondents were immune from the appellant's suit
- 2.Whether the relationship between the appellant on the one hand and the 1st and 3rd respondents on the other hand was within the scope of the immunity
- 3.Whether the trial court should have referred the dispute to the Ministry of Foreign Affairs
Key legal issues
#Whether the 1st and 3rd respondents enjoyed immunity from legal process under the Privileges and Immunities Act and the Host Country Agreement
Yes. The ILRI Order 2000 did not alter or override the Host Country Agreement; Articles V and XIV(a) granted immunity from every form of legal process except where waived, and no waiver existed.
The Minister, in gazetting the ILRI Order 2000, was performing his mandate under section 9(2)(a) as read with section 9(3) of the Privileges and Immunities Act, which limits the order to the immunities in Part I of the Fourth Schedule and to giving effect to international agreements. The order therefore could not alter the Host Country Agreement. Articles V and XIV(a) of the agreement conferred immunity from legal process on ILRI and on its staff for acts in their official capacity. Kenya could not resile from these voluntary undertakings, the principle of pacta sunt servanda applying.
Whether the dispute fell within the scope of the immunity or was a private/commercial transaction outside it
The dispute fell within the immunity. Applying the restrictive-immunity test, the 1st respondent acted in her capacity as an employee of the 3rd respondent, not on her own account for profit, so the organisation's immunity extended to her.
The court applied the test in Ministry of Defence of the Government of the United Kingdom vs. Joel Ndegwa that immunity is restrictive and turns on whether the act was governmental or private. From the pleadings and statements, the appellant herself described the 1st respondent as an employee of the 3rd respondent, and the uncontroverted plea was that the words complained of were written in her mandate as an employee, attracting Article XIV(a) immunity. The trial judge's apparent hesitation in paragraphs 22 and 23 was not contradictory; his firm conclusion in paragraph 24 was that immunity existed.
Whether the trial court should have referred the dispute to the Ministry of Foreign Affairs rather than striking out the suit
No. Once immunity was established, the suit filed in a court lacking jurisdiction was a nullity; there was no competent suit capable of being transferred or referred to another forum.
The motion challenged the trial court's jurisdiction on the ground of immunity. Having found the immunity subsisting, the court reasoned that a suit filed before a court bereft of jurisdiction amounts to nothing and cannot be sanctified by transfer, citing Equity Bank Limited vs. Bruce Mutie Mutuku. The trial judge was therefore right to strike out the plaint rather than refer the matter to the Ministry of Foreign Affairs under Article V(2) of the Host Country Agreement.
Whether upholding the immunity infringed the appellant's right of access to justice under Article 48 of the Constitution
No. The right of access to justice is not absolute and the availability of the alternative forum before the Ministry of Foreign Affairs made the limitation reasonable and justifiable.
Relying on the Supreme Court's decision in Kandie vs. Alassane Ba, the court held that Article 48 is not among the non-derogable rights under Article 25 and may be limited under Article 24. Immunity is a procedural bar, not a substantive denial of access to justice, and here the Host Country Agreement left open the alternative of resolution through the Ministry of Foreign Affairs. Balancing the appellant's right against Kenya's international obligations, the limitation was proportionate.
Legal principles established
#- Immunities granted to international organisations under a Host Country Agreement cannot be altered, amended or overridden by a subsequent Legal Notice issued by the Minister; the Minister's order-making role is confined to giving effect to the international agreement.
- Immunity of an international organisation's employee extends to acts performed in their official capacity, and where the act is not done on the employee's own account for profit, the organisation's immunity applies and extends to the employee.
- Where a suit is filed before a court lacking jurisdiction by reason of immunity, the suit is a nullity and cannot be transferred or referred to another forum; the correct order is striking out.
- Upholding immunity of international organisations and their personnel does not violate Article 48 of the Constitution where an alternative dispute resolution forum is available; the right of access to justice is not absolute and may be reasonably and justifiably limited.
Court orders
#- 1.The appeal is dismissed with costs to the 1st and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules; the judgment also references Article 48 of the Constitution, but the appellate statutory basis for hearing the appeal is the Court of Appeal Rules.
Relief refused
#Allowance of the appeal and setting aside of the striking-out of the plaint
The 1st and 3rd respondents enjoyed immunity under the Host Country Agreement and the suit was a nullity filed before a court bereft of jurisdiction.
Referral of the dispute to the Ministry of Foreign Affairs instead of striking out the suit
Once immunity was found, no competent suit remained that could be transferred or referred to another forum.
Claim that the immunity infringed the appellant's right of access to justice under Article 48
The alternative forum before the Ministry of Foreign Affairs meant the limitation was reasonable and justifiable.
Costs
The appeal is dismissed with costs to the 1st and 3rd respondents.
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.
In the end, we find that this appeal lacks merit and is for dismissal. The appeal is therefore dismissed with costs to the 1st and 3rd respondents.
we find difficulty in agreeing with the appellant that the Minister could in any way alter, amend or override the express provisions of the Host Country Agreement through the ILRI Order 2000.
A cursory look at the above provisions leaves no doubt that the 1st and 3rd respondents were granted immunity against legal proceedings in Kenya, except where the Government of Kenya brought the suit.
Having been filed before a court bereft of jurisdiction, the suit became a nullity in law and amounted to nothing.
It is apparent that there is no absolute sovereign immunity. It is restrictive. The test is whether the foreign sovereign or government was acting in a governmental or private capacity then the doctrine will apply otherwise it will not afford protection to a private transaction.
The conferment of immunity for the purposes of Kenya upholding its international law obligations, is to that extent, a reasonable and justifiable limitation of the right to access justice as provided under article 48 of the Constitution, and we so hold.
Issues in the judgment
#The memorandum of appeal numbering is irregular: after ground 1 there are two grounds numbered '2.' and then '3.' and '4.', so five grounds do not correspond to the stated numbering.
The judgment states the privileges and immunities were granted under 'the Privileges and Immunities Act, Cap. 149, Laws of Kenya' in one passage but refers to 'Cap 179' elsewhere.
The judgment refers to 'Legal Notices No. 234 of 1993' while the earlier narrative refers to 'Legal Notice No. 134 of 1993', an apparent inconsistency in the notice number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyasimi v Huyer & 3 others (Civil Appeal E560 of 2021) [2025] KECA 758 (KLR)", Case Analysis (2025). Undated memorandum of appeal, Court of Appeal, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/758/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.