The Swedish Embassy in Nairobi has turned to the Supreme Court to challenge a Court of Appeal ruling that allowed two former Kenyan employees to sue it for unfair dismissal.
In its application to the Supreme Court, the Embassy is seeking certification to appeal against the decision of the Court of Appeal delivered on October 6, 2023.
According to court documents, the appellate court had dismissed the Embassy’s claim that it was immune from the jurisdiction of Kenyan courts in the employment dispute.
This followed a case filed by George Karanja Gichimu and John Muchiri, two Kenyans and former employees of the Embassy, before the Employment and Labour Relations Court (ELRC) over unfair termination.
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Swedish Embassy Challenges Court’s Jurisdiction
However, the Swedish Embassy challenged the court’s jurisdiction, citing diplomatic immunity under the Vienna Convention on Diplomatic Relations.
However, both the ELRC and later the Court of Appeal held that the immunity claim could not shield the Embassy from being held accountable in matters of employment involving local staff.
In its Supreme Court filing, the Embassy argued that the case raises issues of great public importance.
Therefore, Kenya’s highest court must offer guidance on the balance between sovereign immunity and labour rights.
“This matter raises the novel question of law whether, and to what extent, a foreign state or its agents are subject to the jurisdiction of Kenyan courts in respect to employment contracts entered into and performed in Kenya,” the Embassy stated in its application.
The Court of Appeal rejected the Embassy’s claim, terming it as of absolute immunity.
“The immunity provided under the Vienna Convention is not absolute when it comes to commercial or employment-related activities conducted within the host country,” stated the court.
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Court Rejects the Embassy’s Plea
Moreover, the court further said that granting blanket immunity in such cases would be contrary to Kenya’s constitutional values of justice and equality.
“The claim before the Employment and Labour Relations Court relates to employment services rendered in Kenya by Kenyan citizens. It is our view that these are private law matters that do not attract state immunity,” added the court.
However, the Swedish Embassy contended that allowing such claims to proceed in Kenyan courts would violate international law and expose diplomatic missions to lawsuits in host countries.
“The Embassy maintains that it was immune from the jurisdiction of the ELRC, and that the trial and appellate courts erred in failing to strike out the suit,” the application read.
Consequently, the Embassy wants the Supreme Court to stay the execution of the Court of Appeal’s ruling pending the hearing of its appeal.
The Supreme Court is yet to determine whether the matter meets the threshold for appeal.
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