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ELRCDismissedNot stated in the judgment (constitutional Petition filed 2 March 2022)· [2022] KEELRC 1386 (KLR)

Chimphondah v Company for Habitat and Housing Africa (Shelter Afrique) (Petition E038 of 2022) [2022] KEELRC 1386 (KLR)

Employment and Labour Relations Court of Kenya
30 June 2022
AMAnna Ngibuini Mwaure
3,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly employed by the Respondent, Shelter Afrique, as Managing Director under a five-year fixed term contract effective 1 November 2018, instituted a constitutional Petition on 2 March 2022 alleging violations of Articles 1, 25, 41, 47 and 50(1) of the Constitution arising from his allegedly unfair, unprocedural removal from employment without a hearing before the Respondent's Board. The Respondent filed a Notice Preliminary Objection dated 15 March 2022 contending that the Court lacked jurisdiction by virtue of Legal Notice No. 129 of 1984, made under Section 9 of the Privileges and Immunities Act (Cap 179), which conferred on it immunity from suit and legal process under Part I of the Fourth Schedule. The Petitioner argued that the immunity could not override non-derogable rights, that the decision in KNK v Alassane Ba did not blanketly uphold immunity, and urged the restrictive immunity doctrine through authorities including Congreso Del Partido, Rahimtoola, Saudi Arabia v Nelson and Bah v Libyan Embassy. The Court held that Shelter Afrique is an international organisation enjoying immunity from suit and legal processes, that employment contracts fall within services conducive to the performance of diplomatic functions, and that a constitutional petition alleging violations occurring in the course of the Respondent's official duties does not circumvent the immunity. Following Kandie, it found the Article 48 right of access to justice is not absolute and the immunity was a reasonable and justifiable limitation. The preliminary objection was upheld and the Court found it lacked jurisdiction to entertain the Petition. No costs order was made.

Key legal issues

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01

Whether the Respondent enjoys immunity from suit and legal process

Holding

Yes. Legal Notice No. 129 of 1984, made under Section 9 of the Privileges and Immunities Act, declared Shelter Afrique an organisation attracting the immunities in Part I of the Fourth Schedule, including immunity from suit and legal processes, reinforced by the Host Country Agreement making the headquarters seat inviolable

Reasoning

The Court traced the Shelter Afrique Act, the Host Country Agreement ratified on 19 October 1983, and Legal Notice No. 129 of 1984 conferring immunity. It relied on Kandie v Alassane Ba and on prior High Court and ELRC decisions holding that international organisations enjoy the Part I Fourth Schedule immunities. It found the Respondent clearly an international organisation conferred such status by Kenya.

p. 4
02

Whether allegations of breach of non-derogable rights under Article 25 displace the immunity

Holding

No. The right of access to justice under Article 48 is not absolute and can be limited; the constitutional petition does not circumvent the immunity because the alleged violations occurred in the course of the Respondent's official duties

Reasoning

The Court adopted the Supreme Court's reasoning in Kandie that immunity is a procedural bar and a reasonable and justifiable limitation of the right to access justice serving Kenya's international obligations. It reasoned that entertaining the Petition would inevitably lead to execution against the Respondent's property, defeating the purpose of the immunity. A constitutional petition cannot be used to circumvent the immunity hurdle.

p. 5
03

Whether the doctrine of restrictive immunity (as urged by the Petitioner) applies to the employment claim

Holding

No. Employment contracts fall within services conducive to the performance of diplomatic functions and are covered by the immunity

Reasoning

The Court noted the Petitioner's reliance on restrictive immunity authorities (Congreso Del Partido, Rahimtoola, Saudi Arabia v Nelson, Bah v Libyan Embassy) but instead adopted the reasoning in Isalambo v Ekvali citing Al-Malki v Reyes, that services incidental to the performance of official/diplomatic functions are covered by immunity, and in Wairimu v ICRC that Section 9 of the Privileges and Immunities Act governs international organisations.

p. 6

Legal principles established

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  • An international organisation conferred immunity from suit and legal process by a Legal Notice made under Section 9 of the Privileges and Immunities Act is immune from employment-related claims couched as constitutional petitions where the alleged violations arose in the discharge of its official functions
  • The right of access to justice under Article 48 is not an absolute right under Article 25 and may be limited by law in proper circumstances, including by immunity conferred to meet Kenya's international obligations
  • Employment contracts fall within services conducive to the performance of diplomatic/organisational functions and are covered by the immunity accorded to the organisation

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15 March 2022 is found to be merited and is upheld
  2. 2.This Court lacks the necessary jurisdiction to entertain the Petition and it is so held
  3. 3.A signed copy of the judgment to be availed to each party upon payment of court fees

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 19, 20, 22, 23, 24(3), 25, 27, 28, 41, 47, 48, 50(1), 50(2), 159(2)(d), 162, 165, 259, 260
  • Privileges and Immunities Act (Chapter 179, Laws of Kenya)Section 9, Section 17, Part I of the Fourth Schedule
  • Legal Notice No. 129 of 1984 (Privileges and Immunities (Shelter Afrique) Order 1984)Full order as set out
  • Shelter Afrique Act 493(c)Establishment of the Respondent, came into force 23 October 1983
  • Host Country Agreement (Government of Kenya and Company for Housing and Habitat in Africa)Article II, Article II Section 8(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Kandie versus Alassane Ba & Another
    Supreme Court Petition No. 2 of 2015
  • Gerard Killeen versus International Centre of Insect Physiology and Ecology
    Civil Case No. 1737 of 2002 (2005) eKLR
  • KNK v Alassane Ba & another
    [2017] eKLR
  • Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board
    [2012] eKLR
  • Congreso Del Partido
    (1981) 2 ALL ER 1064 (HL)
  • Bah V Libyan Embassy
    2006 (1) BLR 22 (IC)
  • Rahimtoola vs. Nizam of Hyderabad & Another
    (1958) AC 379 at 418
  • Saudi Arabia vs. Nelson, 507 US 349
    Supreme Court 1993
  • Eugine Linyulu Isalambo versus Barbro Ekvali
    Cause No. 1358 of 2015
  • Al-Malki and another v Reyes and another (Secretary of State for Foreign and Commonwealth Affairs and others intervening)
    [2015] EWCA Civ 32, [2015] WLR (D) 75
  • Josephine Wairimu vs International Committee of the Red Cross
    Civil Appeal No. 100 of 2010 [2015] eKLR
Jurisdiction invoked
Articles 22, 23, 162, 165 of the Constitution of Kenya 2010 (as invoked by the Petitioner); the Court upheld a preliminary objection that Legal Notice No. 129 of 1984 read with Part I of the Fourth Schedule to the Privileges and Immunities Act (Cap 179) confers immunity from suit on the Respondent

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, "Chimphondah v Company for Habitat and Housing Africa (Shelter Afrique) (Petition E038 of 2022) [2022] KEELRC 1386 (KLR)", Case Analysis (2022). Not stated in the judgment (constitutional Petition filed 2 March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1386/eng@2022-06-30

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