[2016] KEELRC 972 (KLR)
The court declined to either overrule or sustain the Respondent's preliminary objection at this stage because the Respondent failed to produce the specific legal instrument establishing its entitlement to immunity. The existence and applicability of such immunity is a factual issue requiring evidence, and thus...
Source-derived case information.
- Citation
- [2016] KEELRC 972 (KLR)
- Parties
- Claimant: Mary Andeso Mulusah; Respondent: African Trade Insurance Agency
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 758 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objection not upheld or overruled; claim to proceed to full hearing.
- Judges
- L Ndolo
- Legal Topics
- Jurisdiction of Court, Immunity of International Organizations, Preliminary Objection, Privileges and Immunities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Andeso Mulusah
Claimant
African Trade Insurance Agency
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction over the Respondent in light of the Privileges and Immunities Act and related legal instruments.
- 2 Whether the Respondent is entitled to immunity from suit and legal process under Kenyan law.
Ratio Decidendi
The court declined to either overrule or sustain the Respondent's preliminary objection at this stage because the Respondent failed to produce the specific legal instrument establishing its entitlement to immunity. The existence and applicability of such immunity is a factual issue requiring evidence, and thus cannot be determined as a pure point of law on a preliminary objection. The matter of jurisdiction and immunity remains open for determination at the full hearing, where parties may adduce relevant evidence.
Court Disposition
Preliminary objection not upheld or overruled; claim to proceed to full hearing.
Orders
- The claim will proceed to full hearing.
- Parties are at liberty to adduce evidence on the issue of immunity.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 758 OF 2015
MARY ANDESO MULUSAH...........................................CLAIMANT
VS
AFRICAN TRADE INSURANCE AGENCY...................RESPONDENT
RULING
By notice dated 14th December 2015, the Respondent takes a preliminary objection citing the following ground:
That the Claimant's claim is fatally incompetent and does not lie by virtue of section 9 and 11 of the Privileges and Immunities Act, Cap 179, Part 1 of Schedule 4 and Legal Notice No. 89 of 2001 ((the Privileges and Immunities (the African Trade Insurance Agency)) Order, 2001.
A preliminary objection was defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A 696 as one which “raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
The Respondent's objection is based on Sections 9 and 11 of the Privileges and Immunities Act as well as Part 1 of the 4th Schedule which grants immunity from suit and legal process to recognised organisations and their officers.
However, the Respondent did not produce the particular instrument that would have brought it within the purview of this immunity. This is a crucial part of evidence in the determination of the issue of jurisdiction which is at the heart of the Respondent's objection.
In the circumstances, I decline either to overrule or sustain the Respondent's objection at this stage and direct that the claim will proceed to full hearing. The issue raised in the objection remains alive and parties are at liberty to adduce evidence thereon.
The costs of the objection will be in the cause.
Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH DAY OF JULY 2016
LINNET NDOLO
JUDGE
Appearance:
Mary Andeso Mulusah (the Claimant in person)
Mr. Gachuba for the Respondent