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Court of AppealPartially AllowedCivil Appeal 57 of 2020

African Trade Insurance Agency (ATI) v Otieno & another

Court of Appeal
25 September 2026
4,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the African Trade Insurance Agency is immune from employment lawsuits, so its former employee must use internal dispute channels instead.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal by the African Trade Insurance Agency (ATI) against a ruling of the Employment and Labour Relations Court (M. Onyango, J.) which had dismissed ATI's preliminary objection and held that the ELRC had jurisdiction to hear a petition by George Oduori Otieno alleging constitutional violations arising from the termination of his employment. The appellant contended it enjoyed immunity from suit under the Privileges and Immunities Act, Legal Notice No. 89 of 2001, the ATI Treaty and the Host Country Agreement, none waived. The Court framed three issues: whether the preliminary objection raised a pure point of law; whether the law expressly barred proceedings against ATI in personnel matters; and whether the respondent was bound to exhaust internal dispute resolution mechanisms. The Court, applying Mukisa Biscuit, held the objection was a pure point of law since the material facts were undisputed. It held that Article 16(1)(b) of the ATI Treaty, incorporated into Kenyan law, granted immunity against legal proceedings in personnel matters; that the constitutional declarations sought were ancillary to an essentially employment dispute; and that following Karen Njeri Kandie, immunity is a justifiable limitation on the Article 48 right of access to justice. It further held the respondent was required to exhaust the exclusive internal mechanisms prescribed by the Treaty, Staff Manual and his contract. The appeal was allowed, the ruling of 25th October 2019 was set aside and substituted with an order upholding the preliminary objection, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the preliminary objection raises a pure point of law
  2. 2.Whether the law expressly bars legal proceedings against the appellant in personnel matters
  3. 3.Whether the 1st respondent was required to exhaust the internal dispute resolution mechanisms

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

Yes; the material facts were undisputed and the controversy was purely the legal consequence of immunity on jurisdiction.

Reasoning

The court noted it was common ground that ATI was established under the ATI Treaty, that Kenya enacted Legal Notice No. 89 of 2001 under the Privileges and Immunities Act, that immunity had not been waived, and that the dispute arose from employment. Since no facts needed ascertainment and no discretion was involved, the objection met the Mukisa Biscuit threshold and was properly a preliminary point.

p. 6
02

Whether the law expressly bars legal proceedings against the appellant in personnel matters

Holding

Yes; Article 16(1)(b) of the ATI Treaty, given force of law by the Privileges and Immunities Act and Legal Notice No. 89 of 2001, bars proceedings in personnel matters, and the constitutional declarations sought were ancillary to the employment dispute.

Reasoning

The court examined Article 16(1) of the ATI Treaty and held the appellant immune from legal proceedings in personnel matters. Although the petition framed constitutional challenges to the immunity instruments, the court looked at substance: the reliefs all flowed from termination of employment. Relying on Kandie and pacta sunt servanda, it held Kenya could not resile from its immunity undertakings, and the trial judge erred in deferring the immunity question to full hearing.

p. 8
03

Whether the 1st respondent was bound to exhaust internal dispute resolution mechanisms

Holding

Yes; the ATI Treaty, Staff Manual and contract prescribed exclusive internal mechanisms which were not shown to be unavailable or ineffective.

Reasoning

Clause 16 of the renewal letter required disputes to be resolved exclusively under the ATI Agreement and Staff Manual, and Article 19(2) of the Treaty provides dispute settlement procedures. The court found the respondent did not demonstrate those procedures were unavailable or ineffective, so he was required to exhaust them before invoking the ELRC's jurisdiction.

p. 9

Legal principles established

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  • A preliminary objection on immunity from legal process is a pure point of law properly determined in limine as a jurisdictional bar.
  • Treaty-based immunity of international organisations covering personnel matters bars domestic court proceedings in employment disputes unless waived.
  • The right of access to justice under Article 48 is not absolute and may be limited by immunity conferred to meet international law obligations.
  • Where an employment contract prescribes an exclusive internal dispute resolution mechanism, the employee must exhaust it before invoking the jurisdiction of the ELRC.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling dated 25th October 2019 dismissing the appellant's preliminary objection dated 24th May 2019 set aside and substituted with an order allowing the preliminary objection
  3. 3.Each party shall bear its own costs

The bench

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

majority
majority
On appeal from
Employment and Labour Relations Court
ELRC Petition No. 85 of 2019
Jurisdiction invoked
First appeal from the ELRC ruling dismissing a preliminary objection; appellate jurisdiction of the Court of Appeal

Relief refused

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1st respondent's request that the ruling dismissing the preliminary objection be affirmed and the appeal dismissed

The court found the appellant's immunity intact and the dispute subject to exclusive internal dispute resolution mechanisms

p. 8

Costs

Each party shall bear its own costs.

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 ruling dated 25th October, 2019 dismissing the appellant’s preliminary objection dated 24th May, 2019 is hereby set aside and substituted with an order allowing the said preliminary objection. Each party shall bear its costs.
p. 9Final orders - appeal allowed, preliminary objection upheld
Measured by the standard in Mukisa Biscuit Manufacturing Co. Ltd (supra), we agree with the trial court that the appellant's P/O raised a pure point of law.
p. 6Preliminary objection threshold
we are persuaded that the appellant's immunity from suit and legal process remains intact and extends to the dispute giving rise to the petition.
p. 8Immunity from suit intact
the right of access to justice provided under Article 48 is not an absolute right listed under Article 25 and for that reason it can, in proper circumstances, be limited by the law.
p. 9Limitation of access to justice by immunity
we find that he was required to exhaust the available internal remedies before invoking the jurisdiction of the ELRC.
Exhaustion of internal remedies

Issues in the judgment

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minor

Kandie citation year inconsistent within judgment (2015, 2017 eKLR and 2017 KESC 13 used for what appears to be two different decisions)

minor

Judgment states it agrees with the trial court on the P/O threshold yet sets aside the ruling

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, "African Trade Insurance Agency (ATI) v Otieno & another", Case Analysis (2026). Civil Appeal 57 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1914/eng@2026-09-25

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