https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1122

Embassy of Sweden, Nairobi v Kusewa & another (Civil Application E002 of 2020) [2026] KECA 1122 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1122 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E002 of 2020 F Tuiyott, AI Hassan & B Ongaya, JJA June 12, 2026 Between Embassy of Sweden, Nairobi Applicant and Lucy Muingo Kusewa 1st Respondent Renalda Mboje Mjomba 2nd Respondent (Being an application for certification and leave to appeal to the Supreme Court from the Judgment and Orders of this Court at Nairobi (Karanja, Okwengu & Sichale, JJ.A.) dated 24th April, 2020 in Civil Appeal No. 345 of 2017) Ruling 1.Before the Court is the notice of motion dated 30th July 2025 brought under Article 163(4)(b) of the Constitution, Rules 5(2)(b), 44 and 45 of the Court of Appeal Rules, 2022, and pursuant to the leave granted in the Ruling and Order of Hon. Justice D. K Musinga (President) dated and delivered on 18th July 2025. The applicant seeks the following prayers:1.That this Honourable Court be pleased to certify the applicant’s intended appeal to the Supreme Court of Kenya as raising matters and points of law of general public importance and on this basis, grant the applicant leave to appeal to the Supreme Court of Kenya against the Judgment and Orders of this Honourable Court at Nairobi (W. Karanja, H. Okwengu & F. Sichale, JJ.A) dated 24th April 2020;2.That further and upon grant of prayer 1 above, this Honourable Court be pleased to issue an order staying further proceedings in ELRC No. 2193 of 2015 - Lucy Muingo Kusewa vs. Embassy of Sweden, Nairobi and ELRC No. 2194 of 2015 – Renalda Mboje Mjomba vs. Embassy of Sweden, Nairobi, both before the Employment and Labour Relations Court of Kenya at Nairobi, pending the hearing and determination of the applicant’s intended appeal to the Supreme Court of Kenya;3.That this Honourable Court be pleased to issue any other order it deems fit to meet the ends of justice; and4.That the costs of this application be provided for. 2.By way of a background to the matter, and to put this application into perspective, the 1st and 2nd respondents filed suits against the applicant before the Employment and Labour Relations Court (ELRC) at Nairobi (ELRC No. 2193 of 2015 and ELRC No. 2194 of 2015, respectively). The applicant, the respondent before the ELRC, filed two notice of motion applications, both dated 09th February, 2016, premised on a preliminary point of law: that the ELRC lacked the jurisdiction to hear and determine both suits because of the privileges and immunities enjoyed by the applicant as the Embassy of the Kingdom of Sweden, a sovereign State. The ELRC (Wasilwa, J.) dismissed both applications by a Ruling dated 31st July, 2017. 3.Dissatisfied with the decision of the ELRC, the applicant lodged its appeal to this Court (Nairobi Civil Appeal No. 345 of 2017 - Embassy of Sweden, Nairobi vs. Lucy Muingo Kusewa & Renalda Mboje Mjomba). The memorandum of appeal dated 04th October, 2017 contained five grounds that challenged the said Ruling of 31st July, 2017 by the ELRC. By a notice of motion application dated 11th April, 2019 filed at the ELRC, the applicant also obtained stay of proceedings before the ELRC on 11th October, 2019, pending the hearing and determination of Nairobi Civil Appeal No. 345 of 2017. 4.Judgment in Nairobi Civil Appeal No. 345 of 2017 was delivered on 24th April, 2020 by which this Court (W. Karanja, H. Okwengu & F. Sichale, JJ.A) dismissed the applicant’s appeal. The applicant is aggrieved by that decision and now seeks to challenge the same before the Supreme Court, on the ground that its intended appeal involves matters and points of law of general public importance; and, that an embassy which enjoys the privileges and immunities as an extension of a sovereign state is immune from the jurisdiction of the laws of the embassy’s receiving state, especially where there has been no such waiver of the said sovereign immunity. 5.Article 163(4) (b) of the Constitution of Kenya, 2010 provides that appeals shall lie from the Court of Appeal to the Supreme Court in any other case in which the Supreme Court, or the Court of Appeal certifies that a matter of general public importance is involved. The provision is subject to Article 163(5) of the Constitution which states that a certification by the Court of Appeal under clause 163 (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned. Rule 42 of the Court of Appeal Rules provides for making of an application for certification that point of law of general public importance is involved. The application is made by way of a motion or chamber summons within 14 days from the date of decision the applicant desires to appeal against. The applicant obtained an order extending time within which to make the application and we find that the application is within the rule’s procedural prescriptions. 6.The application before this Court is supported by the grounds set out on its face and in the affidavit of Maria Ottosson, who relies on the record of appeal filed by the applicant in Nairobi Civil Appeal No. 345 of 2017. She notes that the applicant has since lodged its Notice of Appeal dated 05th May, 2020 at the Court of Appeal evincing its intention to challenge the whole of the said Court of Appeal Judgment. She avers that the intended appeal raises issues of general public importance, such as inter alia, the interpretation, application and enforcement of treaty and international laws in Kenya. It is stated that the question of a court’s jurisdiction goes to the core of the determination of a dispute before the ELRC and must be resolved at the earliest opportunity. Further, it is therefore necessary for the issue of jurisdiction to be conclusively resolved before the two causes pending before the ELRC can be fully heard and determined. 7.Ms. Ottosson further avers that when the order for stay of proceedings previously issued by the ELRC on 11th October, 2019 lapsed, the applicant instructed the firm of Messrs. Mohammed Muigai LLP to take over the prosecution of the two suits before the ELRC, including the notice of motion application dated 14th July, 2020 that sought orders to further stay proceedings before that Court. The said application for stay pending determination before the Court of Appeal was allowed for three months in a Ruling dated 11th October, 2020, and has since lapsed. 8.The applicant is therefore apprehensive that unless this Court issues the orders sought in the instant application, its intended appeal could be rendered nugatory even if successful. In contrast, the respondents will not suffer any prejudice as the applicant is a recognized and reputable foreign sovereign that is stable and capable of paying the respondents if the appeal is unsuccessful. 9.During the hearing of the application on 24th February 2026, learned counsel Mr. Guto Mogere appeared for the applicant while Mr. Owino appeared for the respondents, respectively. 10.In the submissions dated 23rd February 2026, it is urged for the applicant that jurisprudence establishes that certification involving a matter of general public importance requires a question transcending the parties’ interests, raising a substantial question of law, and impacting the public interest (Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR). 11.While agreeing with the submission made for the applicant and Mr. Owino for the respondent not disputing the guiding principles on certification as submitted for the applicant, we have as well been guided by the decision of the Supreme Court in Goldenlime International Limited v Bluesea Shopping Mall Limited & 3 others (Motion 21 of 2016) [2021] KESC 2 (KLR) (Civ) (8 October 2021) (Ruling) Neutral citation: [2021] KESC 2 (KLR) thus,“74.This court in the Hermanus case held that whether a matter is one of general public importance is an issue to be determined on a case to case basis as guided by its peculiar facts of each case and that for a case to be certified as one involving a matter of public importance; “…the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one, the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.Where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;” 12.This Court identified one issue for determination as per the judgment in Nairobi Civil Appeal No. 345 of 2017 and subject of the instant application for certification for appeal to the Supreme Court. At paragraph 32 of the judgment, the issue was identified thus, “Whether the principle of diplomatic immunity as urged by the appellant applies in the circumstances of this case? and if so to what extent?” The Court at paragraph 42 proceeded to state that the rule on restrictive immunity is not new and it has been applied in Kenya for decades and further stated, “For Instance, in the oft cited case of Ministry of Defence of the Government of the United Kingdom v. Joel Ndegwa (supra) this Court stated thus; - “It is apparent that there is no absolute immunity. It is restrictive. The test is whether the foreign sovereign or government was acting in governmental or private capacity the doctrine will apply otherwise it will not afford protection to a private transaction. The nature of the act is therefore important.” The judgment further stated as follows,“43.This position was reiterated in the case of Telaso Lepalat v. Embassy of the Federal Republic of Germany & 2 Others (supra) where Justice Lenaola (as he then was) pronounced himself as follows; -“31.While absolute immunity was presupposed to be inviolable upto the 19th Century, the need to impose restriction on State immunity became imminent when at the end of the 19th Century, States became increasingly involved in commercial activities. That led to the need to establish a more realistic and pragmatic approach to disputes of a purely commercial nature when one of the parties was a foreign State. A distinction in international law was thereafter created between public acts of a State (acts juri imperii) and private acts such as trading and commercial activity (acts jure gestionis).In a more recent decision, the Supreme Court of Kenya in the case of Karen Njeri Kandie v. Alassane Ba & Another (2017) eKLR lauded the doctrine of restrictive immunity and opined as follows:“.… We too agree that the doctrine of absolute immunity would be anachronistic, and has been so for some time now. What immunity there is must be restricted or qualified so that private or commercial activities cannot be immunized”.43.The next issue for us to address is whether the doctrine of restrictive immunity is applicable to employment contracts. A look at the comparative jurisprudence we have analyzed above shows 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 vs American Embassy and another and Sebina vs South Africa High Commission (supra). Our courts have also adopted that approach as can be seen in the 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.It was submitted for the applicant that this Court’s conclusion that restrictive immunity may be displaced by commercial activity directly implicates the question of whether employment contracts, such as those under which the respondents are employed, qualify as commercial activity capable of displacing immunity. It was further submitted that the Court of Appeal’s reliance on non-Kenyan authorities in reaching its conclusion, without engaging Kenyan jurisprudence, underscores the need for the Supreme Court’s guidance on whether the respondents’ employment at the embassy falls within the ordinary functions of a diplomatic mission or constitutes commercial activity capable of displacing immunity. Further, that even in the decision of Karen Njeri Kandie v Alassane Ba & another [2017] eKLR Neutral citation: [2017] KESC 13 (KLR), the Supreme Court did not address whether employment contracts constitute commercial activity specifically in a case where the employer is a sovereign state. 14.It was further submitted for the applicant that in its submissions it cited the judgment of this Court in the case of African Development Bank –Versus- Beatrice Agnes Acholla Rosemary Ambalo Acholla (Representatives of the Estate of the late Bonaventure Eric Acholla [2015]KECA 596 (KLR) where the Court held that “To stretch the argument that the respondents claim against the appellant being an “employment transaction” was also of a commercial nature, in our view is to over-stretch the meaning and purport of a commercial transaction.” It was submitted that despite citing the judgment, the judgment in Nairobi Civil Appeal No. 345 of 2017 and subject of the instant certification application did not refer to the cited case at all and in which this Court had taken a contradictory opinion on the issue in controversy. The submission for the applicant was therefore that such conflicting opinions by this court further justify granting of the application. The applicant further relied on international jurisprudence, citing Basfar v Wong [2022] UKSC 20, in which the UK Supreme Court held that employing domestic staff does not, by itself, constitute commercial activity and that such employment is incidental to the ordinary functioning of a state mission and therefore protected by immunity. It argues that the matter is of public importance as it affects all foreign missions operating in Kenya, implicates the country’s adherence to international law and influences the administration of justice. 15.For the respondents, Mr. Owino orally submitted that the respondents approached the ELRC in a claim for pension and other terminal benefits. Counsel urged that as found by the Court in the judgment in issue, the issues for determination revolved around the contract of employment and amounted to a private transaction not subject to immunity as claimed for the applicant. Further, such was routine employment matter and it had nothing to do with the core of the principle of diplomatic immunity as it was not an activity touching on the substantive immunity granted to the embassy. Counsel urged that the issue did not amount to one of “general public importance” and submitted that we should decline the certification as prayed for. On the prayer for stay of proceedings before the ELRC, Counsel urged that even if we granted the prayer for certification, we should not grant the order of stay of proceedings because the suit had been pending before the ELRC for over ten years. Further, the Court lacked jurisdiction to grant an order of stay of proceedings pending before the ELRC because rule 5(2) (b) as invoked for the applicant applied only where there was a notice of appeal lodged in accordance with rule 77 of the Court of Appeal Rules in circumstances that there existed a preferred appeal before this Court but which was not the circumstance in the instant application. 16.Mr. Mogere for the applicant and in response to Mr. Owino’s submissions urged that the issue in controversy was novel as of general public importance and that we should exercise discretion to stay the proceedings before the ELRC in the interest of best use of judicial time and ends of justice. 17.We have considered the rival submissions. The main issue for determination is whether the applicant has established an issue for us to certify as involving a matter of general public importance for purposes of appeal to the Supreme Court. The ancillary issue is whether we should grant an order of stay of proceedings of the suits pending before the ELRC as prayed for the applicant. 18.We have considered the issues framed for determination by the Supreme Court in Karen Njeri Kandie v Alassane Ba & another [2017] eKLR Neutral citation: [2017] KESC 13 (KLR). The Supreme Court framed the issues for determination as follows,“36.We have read the pleadings and the written submissions of the parties, and the following issues arise for determination:i.What is the proper interpretation to be accorded to article 2(6) of the Constitution and its effects thereof in the circumstances of the present case?ii.Whether the 1st and 2nd respondents enjoyed absolute immunity.iii.Whether the privileges and immunities conferred upon the respondents, if any, are justifiable limitations under article 24 of the Constitution of the appellant’s rights to fair trial, fair hearing and access to justice under articles 25, 50 and 48 of the Constitution, respectively.” 19.In view of the issues as were framed, it appears to us that in the judgment, the Supreme Court did not squarely address and settle the issue raised for the applicant, namely, whether a person’s employment (such as the respondents in the instant case) at the embassy falls within the ordinary functions of a diplomatic mission or constitutes commercial activity capable of displacing diplomatic immunity. Indeed, that specific issue was not specifically before the Supreme Court in that decided case and it appears to be unsettled. As submitted for the applicant, the Supreme Court did not address whether employment contracts constitute commercial activity specifically in a case where the employer is a sovereign state. Further, we consider that the issue having been traversed before the ELRC and this Court amounts to a substantial point of law whose determination by the Supreme Court will have a significant bearing on the public interest. In particular, we consider that the scope of claims of diplomatic immunity relative to alleged liability and remedies revolving around relevant contract of employment amounts to a matter of public interest transcending the rights and obligations of the parties in the instant dispute. The varying opinions of this Court on the issue as urged for the applicant appear to act as an impetus towards that finding. 20.As urged for the respondents, we lack the requisite jurisdiction purportedly under rule 5 (2) (b) of the Rules of this Court (and as invoked for the applicant) to grant an order of stay of proceedings of the suits pending before the ELRC especially in view that there is no notice of appeal with respect to a conceivably pending appeal before this Court. The prayer will therefore be declined. We consider that the costs of the application will abide the outcome of the intended proceedings in the Supreme Court. 21.In the premise, we certify the applicant’s proposed appeal to the Supreme Court of Kenya as raising a matter and point of law of general public importance being, whether a person’s employment (such as the respondents in the instant application) at the embassy falls within the ordinary functions of a diplomatic mission or constitutes a commercial activity capable of displacing diplomatic immunity, and on this basis, grant the applicant leave to appeal to the Supreme Court of Kenya against the Judgment and Orders of this Honourable Court in Nairobi Civil Appeal No. 345 of 2017 (W. Karanja, H. Okwengu & F. Sichale, JJ.A) dated 24th April 2020. The costs of the application will abide the outcome of the intended appeal in the Supreme Court. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.F. TUIYOTT................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALB. ONGAYA................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar