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ELRCStruck OutNot stated in the judgment (Cause number not disclosed)

Yakub Ibrahim v International Committee of the Red Cross [2015] KEELRC 32 (KLR)

Employment and Labour Relations Court
16 December 2015
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an employee's claim against the Red Cross because the organisation's legal immunity had never been formally waived.

What this practically means

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Executive summary

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The International Committee of the Red Cross raised a preliminary objection contending that the Employment and Labour Relations Court lacked jurisdiction to entertain the Claimant's employment suit because the Respondent enjoys complete immunity against legal process in Kenya under the Privileges and Immunities Act (Cap. 179) as read with the Privileges and Immunities (ICRC) Orders, 1996, and the Headquarters Agreement between the ICRC and the Government of Kenya. The Claimant opposed, arguing under Article 2 of the Constitution that any agreement conferring immunity is subservient to constitutional guarantees of fair labour practices and access to justice; that the Respondent waived immunity by lodging a criminal complaint against the Claimant, thereby subjecting itself to local law; and that the Respondent's Staff Regulations make employment matters subject to national law. The court held that immunity, once granted, subsists until removed or waived by an appropriate order, and that Article 3 of the Headquarters Agreement grants the ICRC immunity from every form of legal and administrative process unless expressly waived. A criminal complaint does not lift immunity, as criminal and employment matters are distinct. The Staff Regulations cannot override the Agreement, which predated the 2010 Constitution and remains binding under Article 2. The preliminary objection was upheld, the claim struck out, and each party ordered to bear 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 court has jurisdiction to entertain and determine the suit given the Respondent's immunity against legal process under the Privileges and Immunities Act and the 1996 Orders
  2. 2.Whether the Respondent waived its immunity by lodging a criminal complaint against the Claimant
  3. 3.Whether the Respondent's Staff Regulations, which subject employment to national/local law, override the immunity granted under the Headquarters Agreement

Key legal issues

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01

Jurisdiction in the face of immunity under the Privileges and Immunities Act

Holding

The court lacks jurisdiction to entertain the suit as the Respondent enjoys complete immunity from legal process under the Privileges and Immunities Act (Cap. 179) and the ICRC Orders, 1996, and the Headquarters Agreement with the Republic of Kenya

Reasoning

Article 3 of the Agreement between the Republic of Kenya and the ICRC grants the organisation, its property and assets immunity from every form of legal and administrative process unless the ICRC has expressly waived it. Immunity persists until removed or waived by an appropriate order. The agreement predates the 2010 Constitution and, by operation of Article 2, remains binding; internal staff regulations cannot negate its terms.

p. 2
02

Whether the criminal complaint against the Claimant waived the immunity

Holding

No - a criminal complaint does not lift the Respondent's immunity from employment and labour claims, as criminal and employment matters are distinct

Reasoning

The court held there is a distinctive separation between criminal matters and employment/labour matters, and one does not automatically override the other. A criminal charge does not bar employment-related sanctions, and equally a criminal complaint cannot be a basis to infer lifting of immunity so as to allow the civil employment claim before the court.

p. 2
03

Whether Staff Regulations subjecting employment to local law override the Headquarters Agreement

Holding

No - internal regulations or policy documents cannot override the Agreement so as to negate its terms

Reasoning

The Agreement was signed before the Constitution 2010 came into force and, by operation of Article 2 on supremacy, remains binding. The Staff Regulations providing that employment matters are subject to national law cannot displace the express immunity terms agreed between the Government of Kenya and the Respondent.

p. 2

Legal principles established

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  • A body granted immunity against legal process continues to enjoy that immunity until it is removed or waived by issuance of an appropriate order; internal regulations cannot override a headquarters agreement granting immunity
  • Lodging a criminal complaint by an employer against an employee does not constitute a waiver of the employer's immunity from employment-related civil claims
  • Employment contracts of international organisations fall within their internal operations for which diplomatic immunity may be invoked, and disputes must go through internal procedures or international mechanisms

Court orders

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  1. 1.The preliminary objection by the Respondent is upheld
  2. 2.The claim herein is struck out
  3. 3.Each party shall bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly invoked; matter decided on a preliminary objection to jurisdiction under the Privileges and Immunities Act (Cap. 179) and the Privileges and Immunities (International Committee of the Red Cross) Orders, 1996

Relief refused

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The Claimant's claim (unfair labour practice/employment claim) in its entirety

The Respondent enjoys immunity against legal process under the Privileges and Immunities Act, Cap. 179, and the ICRC Orders, 1996, and such immunity was neither removed nor expressly waived

p. 3

Costs

Each party shall bear their 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 ICRC, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal and administrative process unless the ICRC has expressly waived its immunity.
p. 2Scope of ICRC immunity under the Headquarters Agreement
a body, entity, agency or as the case may be that has been granted immunity against prosecution or in any other manner shall continue to enjoy the same until such immunity is removed or waived vide issuance of an appropriate Order.
p. 2Duration and waiver of statutory immunity
In this regard therefore, a criminal complaint against the Claimant cannot be a good basis to infer the lifting of immunity against the Respondent so as to bar any action before this court.
p. 2No waiver of immunity by institution of criminal complaint
The objections by the Respondent are upheld. The claim herein is struck out. Each party shall bear their own costs.
p. 3Final orders - preliminary objection upheld, claim struck out

Issues in the judgment

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minor

The judgment does not disclose the case number, the name of the Claimant, or the date the cause was filed; the title and parties are identified only by role

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, "Yakub Ibrahim v International Committee of the Red Cross [2015] KEELRC 32 (KLR)", Case Analysis (2015). Not stated in the judgment (Cause number not disclosed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/32/eng@2015-12-16

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