Caroline Ndanu Muli v Ida Baraghiza

personally, through Mpesa and not through International Organization for Migration (IOM) or United Nations payroll system. 2. On 12th December 2025, the respondent verbally terminated the claimant’s employment without any prior notice, or any valid reason and without according her any hearing. Instead, the respondent threatened her with police arrest and blacklisting from future employment. The claimant was aggrieved and filed suit for unlawful termination and sought compensatory compensation. 1. The respondent filed a Notice of Preliminary Objection dated 30th January 2026 urging the Court to strike out the entire suit for want of jurisdiction, citing diplomatic immunity for United Nations officials. The Claimant filed Grounds of Opposition dated 8 th February 2026,and a Replying Affidavit sworn on 8th February 2026 to oppose the Preliminary objection. Subsequently, both sides filed written submissions to dispose of the objection. Arguments 2. The Respondent objected to the jurisdiction of this Honourable Court on the grounds that the Respondent is a RULING IN ELRC CAUSE NO. E023 OF 2026.2

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diplomat employed by the United Nations and enjoys diplomatic immunity under the Convention on the Privileges and Immunities of the United Nations, 1946 and the Vienna Convention on Diplomatic Relations, 1961, which immunity has not been waived by the SecretaryGeneral of the United Nations. 3. The claimant’s case is that the employment relationship with the respondent was purely private, personal, domestic, and was not connected to any official functions of the International Organization for Migration (IOM) or any United Nations organ. The Claimant further contends that the Respondent is merely an employee of IOM Nairobi and is not an accredited diplomat or diplomatic agent within Kenya. She maintained that her employment by the Respondent, supervision and termination were personal acts outside the scope of any official duty. Besides, the Respondent never indicated that she enjoyed immunity in respect of her private domestic employment obligations. Analysis 4. Having considered the Notice of Preliminary Objection, the Claimant's Grounds of Opposition, the Replying Affidavit RULING IN ELRC CAUSE NO. E023 OF 2026.3

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and the Written Submissions, the the main issues for determination are: a) Whether the Respondent's Preliminary Objection meets the threshold of a valid preliminary objection as established in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696? b) Whether this Honourable Court has jurisdiction to hear and determine the suit? Threshold of preliminary objection 5. The law governing preliminary objections in Kenya is well settled. In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, the Court defined a preliminary objection as follows: - “A preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit.” 6. Law J.A in the same judgment stated that:- RULING IN ELRC CAUSE NO. E023 OF 2026.4

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“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by contract giving rise to the suit to refer the dispute to arbitration.” 7. The above binding decision is clear that an objection to the jurisdiction of the court can be raised as a preliminary point and therefore, the preliminary objection herein meets the threshold of a preliminary objection since it challenges the jurisdiction of the court on ground of diplomatic immunity. The facts of the case are not disputed and as such adduction of evidence is not required to establish whether or not the court lacks jurisdiction over the dispute. Diplomatic Immunity from jurisdiction of this court 8. The Respondent's objection is premised on the assertion that she enjoys diplomatic immunity as a United Nations RULING IN ELRC CAUSE NO. E023 OF 2026.5

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official. Immunities enjoyed by international organizations and their officials in Kenya are governed by the Privileges and Immunities Act (Cap 179 Laws of Kenya), the Convention on the Privileges and Immunities of the United Nations, 1946, the Vienna Convention on Diplomatic Relations, 1961 and the Constitution of Kenya, 2010. Section 9 of the Privileges and Immunities Act provides that privileges and immunities granted to international organizations and their officials are limited to those necessary for the independent exercise of their functions. 9. Similarly, Article V, Section 18(a) of the Convention on the Privileges and Immunities of the United Nations provides that officials of the United Nations enjoy immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The immunity conferred under the foregoing instruments is therefore functional rather than absolute. 10. The dispute before this Honourable Court arises from an employment relationship between the Claimant and the Respondent. Such employment arrangements are generally regarded as private transactions and do not RULING IN ELRC CAUSE NO. E023 OF 2026.6

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constitute acts performed in the exercise of official functions of an international organization. 11. In Kandie v Alassane Ba & Another [2017] KESC 13(KLR) the Supreme Court held that immunity enjoyed by officials of international organizations is limited to acts performed in their official capacity. The court held that: “Furthermore, the preamble to the Vienna Convention on ratified Kenya by Diplomatic on Relations, July 1, 1961 1965 also recognized that “the purpose of such privileges and immunities is not to benefit individuals but to ensure functions the of representing the efficient performance diplomatic States”. The of missions as immunity is, therefore, only functional in nature – aimed [sic] ensuring that an organization such as Shelter Afrique effectively performs its functions, and to aid individuals to escape legal sanctions outside the parameters above.” RULING IN ELRC CAUSE NO. E023 OF 2026.7 set out

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12. Similarly, in Embassy of Sweden Nairobi v Kuseva & Another (2017) eKLR, the Court of Appeal observed that diplomatic immunity does not automatically shield parties from disputes arising out of private employment relationships. The court held that:“A look analysed at the above comparative shows jurisprudence that employment contracts have been held to belong to the Private Law domain and State Immunity does not therefore apply. See Cudak v Lithuania (supra), Dube and Another v American Embassy and another, and Sebina v South Africa High Commission (supra). Our courts have also adopted that approach as can be seen in Karen Njeri case (supra). We also note that the respondents were locally employed and their contracts of employment were therefore subject to the jurisdiction of the Employment and labour Court.” 13. The above case dealt with employees of a State Embassy and it affirmed this court’s jurisdiction which makes easier RULING IN ELRC CAUSE NO. E023 OF 2026.8

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for me to hold that this court has a jurisdiction over employment disputes between officials of diplomatic missions including employees UN officials of because and their domestic the private nature of by officials of their employment relationship. 14. The immunity enjoyed international organizations is not absolute but it is limited to acts performed in the exercise of official functions. As demonstrated by the court decisions above, the immunity enjoyed by officials of the United Nations is functional rather than absolute and where the impugned conduct arises from private dealings or personal arrangements unrelated to official duties, such acts fall outside the scope of protected official functions and cannot attract immunity. 15. In this case, the dispute relates to contract of employment between the respondent and her domestic worker, which is clearly a private transaction/relationship. Therefore, I find that this Honourable Court is clothed with the jurisdiction to determine the claimant’s suit on merits and RULING IN ELRC CAUSE NO. E023 OF 2026.9

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accordingly dismiss the respondent’s Notice of Preliminary Objection dated 30th January 2026 with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Kiprotich for Claimant Wachira for Respondent RULING IN ELRC CAUSE NO. E023 OF 2026.10

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