Mwangi Patrick Githinji & 14 others v International Organization For Migration [2013] KEELRC 606 (KLR)
The bottom line
#Kenya's Industrial Court dismissed 15 former IOM staff's unfair dismissal claims because the organisation's treaty immunity bars national court employment suits.
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 respondent IOM had capacity to be sued by the claimants given its privileges and immunities under the Cooperation Agreement with the Government of Kenya
- 2.Whether the claimants have a remedy before this court or are bound to pursue internal/international dispute resolution mechanisms
Key legal issues
#Whether the IOM has immunity from suit in employment disputes
Yes - under the Cooperation Agreement dated 11 May 2002 with the Government of Kenya, the IOM enjoys privileges and immunities extending to staff matters, so it cannot be sued in the Industrial Court over employment disputes
The court found a valid Cooperation Agreement between the Government of Kenya and IOM conferring immunities and privileges as set out in the UN Convention of 1947. Employment disputes fall within the IOM's internal operations. The claimants had available the internal mechanisms and the route of appeal to the ILO Administrative Tribunal, which they should have used instead of instituting suit in the national court.
Whether the remedy sought lies in the national court
No - the remedy is available only under the IOM Council guidelines and international mechanisms
The court applied Article 2(5) and (6) of the Constitution to hold that the Cooperation Agreement and IOM instruments bind the parties. The employment contracts were governed by IOM instruments, not national law, and disputes are to go to arbitration jointly appointed or to the ILO Administrative Tribunal. The court distinguished cases where immunity did not cover commercial transactions.
Legal principles established
#- International organisations enjoying privileges and immunities under a Cooperation Agreement with Kenya are immune from suits in national courts relating to employment disputes, and claimants must pursue internal or international dispute resolution mechanisms such as the ILO Administrative Tribunal
- Treaties and conventions ratified by Kenya form part of Kenyan law under Article 2(5) and (6) of the Constitution
Court orders
#- 1.The claim is dismissed
- 2.No order as to costs - each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12 of the Industrial Court Act, 2011
Relief refused
#Reinstatement of the claimants to their positions with IOM
The IOM enjoys privileges and immunities under the Cooperation Agreement with the Government of Kenya and cannot be sued over employment disputes; claimants must use internal and international mechanisms
Compensation for unfair summary dismissal
The employment contracts were governed by IOM instruments and not subject to national courts' interpretation
Costs
Claim dismissed with no order to costs
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 is clear that they cannot be sued over claim relating to employee and employer disputes as they have a mechanism that address the same by use of the international mechanisms available to the IOM to resolve disputes.
The claimant's employment agreements/contracts with the IOM were therefore governed by the instruments of IOM and not subject to national court's interpretation. The remedy is therefore only available as outlined under the IOM Council guidelines.
For the above reasons, I will dismiss the claim with no order to costs.
Issues in the judgment
#The judgment alternately refers to a cooperation agreement date of 24th May 1982 and states Kenya became a member of IOM on 24th May 1985, with the Cooperation Agreement dated 11th May 2002 - internal inconsistency in dates
Witness evidence of Kitavi states she 'was treated fairly' where context indicates 'unfairly' was intended
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Yakub Ibrahim v International Committee of the Red Cross [2015] KEELRC 32 (KLR)[2015] KEELRC 32 (KLR)16 Dec 2015applied
Cite this brief
#Cite this brief
Caselaw, "Mwangi Patrick Githinji & 14 others v International Organization For Migration [2013] KEELRC 606 (KLR)", Case Analysis (2013). Cause No. 2528 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/606/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.