https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1518

International Livestock Research Institute & another v Muasa & 7 others (Civil Application E035 of 2026) [2026] KECA 1518 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1518 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E035 of 2026 SG Kairu, GV Odunga & L Ndolo, JJA July 31, 2026 Between International Livestock Research Institute 1st Applicant Prof appolinaire Djikeng, The Director General, International Livestock Research Institute 2nd Applicant and Solomon Kikemu Muasa 1st Respondent The Principal Secretary, Ministry of Foreign Affairs 2nd Respondent Kapiti Plains Estate Limited 3rd Respondent Directorate of Criminal Inestigation 4th Respondent Directorate of Criminal Investigation Diplomatic Unit 5th Respondent Chief Inspector of Police Phillip Vii, DCI Diplomatic Unit 6th Respondent PC Isaiah Wafula, DCI Diplomatic Unit 7th Respondent The Chief Magistrate's Court at Kiambu 8th Respondent (Being an application for Stay of Execution and Proceedings pending the hearing and determination of the Intended appeal from the entire Ruling and Order of the Employment and Labour Relations Court of Kenya at Nairobi, (Byram Ongaya J.) on 17th December 2025 in ELRC PET. No. E153 of 2023) Ruling 1.The applicants, by a Notice of Motion dated 27th January 2026, seek orders that, pending the hearing of their intended appeal, this Court be pleased to stay the execution of the ruling and order of the Employment and Labour Relations Court at Nairobi in ELRC Petition No. E153 of 2025 delivered by Ongaya J. (as he then was) on 17th December 2025 as well as stay further proceedings in the said petition. 2.The application is supported by an affidavit sworn by the 1st applicant’s Legal Counsel, Eva Kathambana, on 27th January 2026. 3.The applicants’ case is that the 1st applicant is an international organisation enjoying privileges and immunity in Kenya arising from the Host Country Agreement of 29th December 1994, entered into between the 1st applicant and the Government of Kenya through the Ministry of Foreign Affairs. In furtherance of that Agreement, the Cabinet Secretary for Foreign Affairs, on 12th January 2001, published the Privileges and Immunities (The International Livestock Research Institute) Order, 2000 as Legal Notice No. 2 of 2001, pursuant to which the 1st applicant was declared an organisation to which Section 9 of the Privileges and Immunities Act (Cap 179 Laws of Kenya) (the Act) shall apply. Accordingly, the privileges and immunities specified in Part 1 of the Fourth Schedule to the Act were conferred upon the 1st applicant. By the same Legal Notice, the 2nd applicant, being the Director General of the 1st applicant performing duties in the service of the organisation, was accorded privileges and immunities specified in Part III of the Fourth Schedule to the Act. 4.It was averred that the 1st respondent filed Nairobi Employment and Labour Relations Court Petition No. E153 OF 2025 seeking various reliefs against the applicants. In response to that petition, the applicants filed a preliminary objection and an application dated 12th August 2025 seeking to strike out the petition and the applicants as parties to the petition on grounds that the applicants enjoyed immunity from legal process. However, by a ruling delivered on 17th December 2025, the learned Judge dismissed both the preliminary objection and the application and directed the parties to take directions towards the expeditious determination of the petition. 5.Dissatisfied with the said decision, the applicants lodged a Notice of Appeal dated 23rd December 2025 and based thereon filed the instant application. 6.According to the applicants, their intended appeal is arguable and meritorious, as the learned Judge erred in law and fact in holding that: the 1st respondent filed the petition pursuant to a purported ministerial directive; the Ministry of Foreign Affairs had the authority under Section 9 of the Act to confer jurisdiction on the court through a purported ministerial declaration; the Ministry of Foreign Affairs had the discretion under Article V (1) of the Host Country Agreement to, in default of a negotiated settlement, waive the immunity from legal proceeding enjoyed by the 1st applicant and its senior officials and refer a dispute to court by a ministerial declaration; the immunity enjoyed by the applicants in the petition was not absolute; the issue of whether immunity was waived involves disputed facts that require a full hearing; and the court had jurisdiction to proceed with the petition despite the applicants' claim of immunity from legal process. 7.The above questions, according to the applicants, raise substantial and arguable points of law regarding: the nature and scope of immunity granted to international organizations and their designated officials under Kenyan law and international agreements; whether employment disputes fall within the realm of restrictive immunity under the Act and the Host Country Agreement; and whether the court can proceed to hear a matter against an immune party without a clear and express waiver of immunity. 8.The applicants contend that: if the proceedings in the ELRC are not stayed, the applicants will suffer irreparable prejudice and injustice, as they will be compelled to participate in legal proceedings in violation of their immunities, which are designed to protect their functional independence and international character; any further proceedings at the trial court that may be conducted against them in disregard of their immunity will be a nullity and will render the intended appeal nugatory; the applicants will incur substantial legal costs and suffer reputational damage by being subjected to a process from which they are immune; the respondents will not suffer any prejudice if the stay of execution and further proceedings is granted, given that the dispute had already undergone negotiation process under the Ministry of Foreign Affairs, which is a requirement under the Host Country Agreement. 9.The 1st respondent opposed the application and filed a replying affidavit sworn on 26th February 2026, the gist of which was that the application does not meet the threshold for granting stay of proceedings as it will occasion great hardship and difficulties to the resolution of the dispute before the trial court. In his view, the applicants have, through their various actions and conduct acquiesced themselves to the legal system of Kenya and behaved in a manner that does not befit institutions or personnel that enjoy immunity from Kenya’s legal processes including proceedings before the court. According to him, there is no arguable appeal before the Court since the trial court properly and correctly addressed itself to the current jurisprudence on the subject of immunity of international institutions in various cases and arrived at the conclusion that the immunity is restrictive and that an employment contract is a matter of private law and further that the issue of immunity is inapplicable under international law. On that basis the 1st respondent averred that the application was unmerited and should be dismissed with costs. 10.The plenary hearing of the application took place before us on 3rd February 2026 when learned counsel, Ms Boke Inimah, holding brief for Mr Peter Munyi, appeared for the applicants while learned counsel, Mr Moses Masai appeared for the 1st respondent. Learned counsel, Ms Jepkemoi was present on behalf of the Attorney General for the 3rd to 8th respondents. The 2nd respondent, which was duly served with the notice of hearing was not represented. Ms Inimah and Mr Masai opted to rely entirely on their written submissions while Ms Jepkemei supported the application. 11.On behalf of the applicant it was submitted, citing the well known authorities by this Court on the exercise of its jurisdiction under rule 5 (2) (b) of the Court’s Rules, that the intended appeal is not frivolous. According to the applicants, the trial court’s ruling was based on an error of law and fact in holding that it had jurisdiction to hear a claim against an international organization that had immunity from legal process pursuant to Section 9 of the Act as read with the Host Country Agreement and t Legal Notice No. 2 of 2001. It was submitted that, contrary to the findings by the learned Judge, the Host Country Agreement did not grant discretion to the Ministry of Foreign Affairs to waive the immunity from legal proceedings enjoyed by the 1st applicant and its senior officials. On the nugatory aspect, the applicants submitted that in light of the directions by the trial court that parties take directions for the expeditious determination of the proceedings, the petition will be heard and determined unless a stay of proceedings is granted, and this may result in a waste of valuable judicial time if the appeal is successful. 12.On behalf of the 1st respondent, it was reiterated that, considering the petition and the ruling by the trial court, the applicants have no arguable appeal since, as rightly found, the immunity granted to the applicants is not absolute and would not apply to a dispute involving private rights enshrined in the Constitution. In addition, there are certain contested facts on jurisdiction arising from the conduct of the applicants, such as subjecting themselves to the criminal justice system, which can only be determined on the appraisal of all the facts upon full hearing of the petition. The 1st respondent took the view that a stay of proceedings is likely to visit on him great hardship in prosecuting his claims as such an order will deny him the opportunity to effectively prosecute his claims against the 2nd respondent which is not covered by the immunity. In any case, since the reliefs sought are in the nature of declarations and monetary compensation, their grant will not render the appeal trifling. Since the 1st respondent is seeking redress for violation of his fundamental rights and freedoms against the 3rd to 8th respondents, which are state entities, it was submitted that a stay of proceedings is untenable. According to the 1st respondent, on the authority of Michael Mukundi Ngugi v Naomi Mwihaki Nduta [2023] KECA 1162, the jurisdiction under rule 5 (2) (b) of this Court’s Rules is guided by the interest of justice and in this case, it is not in the interest of justice for the proceedings to be stayed. We were urged to dismiss the application with costs. 13.We have considered the application, the affidavits, both in support of and in opposition to the application and the submissions made before us. As appreciated by the parties, the law governing applications under rule 5(2)(b) of this Court’s Rules is settled. To reiterate the same, a party, in order to succeed, must satisfy the Court, first, that it has an arguable appeal; and, secondly, that its appeal or intended appeal, were it to succeed, would be rendered nugatory, absent stay. An arguable appeal is not one that must necessarily succeed but one that is arguable and one such ground is sufficient. See Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] KECA 378 (KLR). 14.Where what is sought is a stay of proceedings, the applicant must go further and show that there exist exceptional circumstances that warrant such order. See Lalita Devi Lalchand Galot v Mohan Galot [2020] eKLR and Halsbury’s Laws of England, 4th Edition. Vol. 37, at p.330 and p.332 15.In this case, it is intended to be argued that the learned Judge erred in finding that the Ministry of Foreign Affairs could, in default of a negotiated settlement, waive the immunity from legal proceedings enjoyed by the 1st applicant and its senior officials. That clearly is an arguable point. 16.Regarding the nugatory aspect, the applicants, in their intended appeal, propose to challenge their subjection to the proceedings before the trial court, contrary to the law. In those circumstances, we find that unless the proceedings are stayed, the very process which they contend they ought not to be subjected to is likely to proceed with the result that they shall have participated therein by the time the intended appeal is heard and determined. This is more so, in light of the directions given by the learned Judge that the petition be disposed of expeditiously. 17.In the premises, we find that this case meets the test of exceptional circumstances for which a stay of proceedings ought to be granted. We find merit in the application and direct that the proceedings in the Employment and Labour Relations Court at Nairobi in ELRC Petition No. E153 of 2025 be and are hereby stayed pending the hearing and determination of the intended appeal. We direct the applicants to file and serve their Record of Appeal within 30 days after which the matter be placed before the Deputy Registrar of this Court for case management with a view to fixing the appeal for hearing on the basis of priority. The costs of the application will be in the intended appeal. DATED AND DELIVERED AT NAIROBI THIS 31STDAY OF JULY, 2026.S. GATEMBU KAIRU (P), FCIArb, C.Arb…………………….………………..JUDGE OF APPEALG.V. ODUNGA…………………….……………….JUDGE OF APPEALL.M. NDOLO…………………….……………....JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR