Ochuodho v African Union Commission & 11 others

Ochuodho v African Union Commission & 11 others (Petition E506 of 2022) [2026] KEHC 13375 (KLR) (Constitutional and Human Rights) (1 September 2026) (Judgment) Neutral citation: [2026] KEHC 13375 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E506 of 2022 RE Aburili, J September 1, 2026 Between Shem Odongo Ochuodho Petitioner and African Union Commission 1st Respondent Ecosocc Standing Committee 2nd Respondent Attorney General 3rd Respondent Ministry of Foreign Affairs 4th Respondent Minister for Foreign Affairs 5th Respondent Principal Secretary, State Department for Foreign Affairs 6th Respondent Ambassador of Kenya to the African Union 7th Respondent Ecosocc Secretariat 8th Respondent and Abdurahaman Ahmed Mokhtar Interested Party and Moussa Faki Mahamat Respondent and Roll Stephanengomat 1st Interested Party El Hacenembareck 2nd Interested Party Judgment Introduction 1.The Petition dated 15th November 2022 was amended on 21st November 2024 and subsequently on 10th October 2025. It is supported by the affidavit sworn by the petitioner, Shem Odongo Ochwodho. At the heart of the petition is the petitioner’s challenge to his suspension from the membership and leadership within the African Union (AU) and its organ, the Economic, Social and Cultural Council (ECOSOCC). The petitioner avers that his suspension was undertaken in violation of the governing ECOSOCC Statute and Rules of Procedure and in breach of his constitutional rights. He claims that this suspension was triggered by his involvement in efforts aimed at promoting reforms and accountability within the AU and ECOSOCC. 2.The Petitioner seeks the following relief against the Respondents:Against the 1st, 2nd, 8th and 9th Respondents (The African Union Entities):a.A declaration be issued that the 1st, 2nd,8th and 9th Respondents have violated the fundamental rights and legitimate expectations of the Petitioner as guaranteed under the Constitution, International Law, and the African Union's own constitutive instruments, including his right to fair administrative action, fair hearing, and freedom of expression.b.A declaration that the decision of the 1st and 9th Respondents as contained in the letter dated 21st June 2022, on the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC is ultra vires, contrary to the ECOSOCC Statutes and Rules of Procedure, and violates the Petitioner's rights under Articles 27, 33, 35, 47, 48, and 50 of the Constitution.c.An order of certiorari to remove into this Court and quash the said decision and letter dated 21st June 2022, issued by the 1st and 9th Respondents, communicating the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC.d.An order of mandamus compelling the 1st,2nd and 8th Respondents to immediately reinstate the Petitioner to his rightful position as an elected member of the ECOSOCC General Assembly, with all the attendant rights and privileges, for the remainder of his term.e.An order of prohibition restraining the 1st , 2nd , 8th and 9th Respondents from in any way interfering with the Petitioner's tenure, functions, and privileges as an elected member of ECOSOCC, or from recognizing any purported suspension.f.The 1st and 8th Respondents be directed to immediately expunge the name of the Petitioner from the African Union website and any other media used to announce his suspension, and to recall the public notice on the immediate and indefinite suspension of some members of ECOSOCC under the news segment of the African Union website dated 28th June 2022.g.The 1st and 8th Respondents be directed to publish an unequivocal public apology to the Petitioner on the official African Union website.h.A declaration that any actions or transactions carried on by the ECOSOCC Secretariat (the 8th Respondent) after the unlawful and indefinite suspension of the Petitioner are illegal, null and void.i.Monetary damages to be paid by the 1st, 2nd, 8th and 9th Respondents, jointly and severally, for the violation of the Petitioner's rights to equal protection and benefit of the law, right to freedom of expression, fair administrative action, right to access to information, right to access to justice, and his right to a fair hearing, and for the injury caused to his reputation and professional standing.Against the 3rd,4th,5th,6th and 7th Respondents (The Kenyan Government Entities):j.A declaration that the 3rd, 4th 5th 6th and 7th Respondents have a constitutional and statutory duty to provide diplomatic protection to the Petitioner, a Kenyan citizen, and to take all necessary steps to vindicate his fundamental rights which have been violated by an international organization of which Kenya is a member state.k.A declaration that the failure, refusal, or neglect by the 3rd,4th, 5th,6th and 7th Respondents to intervene, make representations, or take any meaningful action to protect the Petitioner from the unlawful suspension and violation of his rights by the African Union Commission constitutes a dereliction of their constitutional duty and a violation of the Petitioner's legitimate expectation.l.An order of mandamus compelling the 3rd, 4th, 5th 6th and 7th Respondents, individually and collectively, to:i.Formally intervene in this matter with the African Union Commission (the 1st Respondent) and its Chairperson (the 9th Respondent).ii.Make urgent and strong diplomatic representations demanding the immediate and unconditional reinstatement of the Petitioner to his position in ECOSOCC.iii.Demand a public retraction and apology from the African Union Commission for the defamatory publication concerning the Petitioner.iv.Champion the Petitioner's cause within the relevant organs of the African Union, including but not limited to the Executive Council, to ensure the restoration of his rights and reputation.m.An order of mandamus compelling the 3rd Respondent, the Attorney General, to take all necessary legal steps, including exploring all available international legal mechanisms, to assist the Petitioner in securing redress for the violations suffered.n.Monetary damages to be paid by the 3rd, 4th , 5th 6th and 7th Respondents, jointly and severally, for their failure, refusal, and neglect to provide diplomatic protection and to vindicate the Petitioner's rights, thereby perpetuating the violation of his fundamental rights and freedoms.General prayerso.Costs of this Petition be awarded to the Petitioner against the Respondents, jointly and severally.p.Interest on any monetary awards at court rates from the date of filing this Petition until payment in full.q.Any other or further reliefs that this Court may deem fit and just to grant. The Petitioner’s Full Case 3.For context, the Economic and Social Council (ECOSOCC) is an organ of the AU governed by its own Statute and Rules of Procedure, with the General Assembly serving as its highest decision-making and policy-making organ. 4.The petitioner avers that the elected members of the ECOSOCC General Assembly, including himself, had been at the forefront of advocating for reforms and corrective measures aimed at addressing issues that had, in their view, tarnished the name, reputation and integrity of both the AU and ECOSOCC. According to the petitioner, these challenges had been occasioned by a few individuals who were acting with impunity and had subverted the purpose for which ECOSOCC was established. 5.The Petitioner depones that on 13th December 2019, he, alongside the other General Assembly members, adopted an objection letter to the Standing Committee and Secretariat and the 3rd Permanent General Assembly. Soon thereafter, on 20th December 2021, 8 members of the ECOSOCC issued a joint statement on the biased, orchestrated and choreographed investigation report on the members. Subsequently on 17th January 2022, the AU’s Respondent’s ECOSOCC Standing Committee wrote a letter to the 4th Respondent requesting support to stop the alleged illegal actions within ECOSOCC. 6.The petitioner deposes that on 21st June 2022, the 1st Respondent through its former Chairperson suspended the Petitioner, alongside 7 other members of ECOSOCC, without regard to the applicable provisions of its Statute and Rules of Procedure. He relies on Rule 9.1(c) of the ECOSOCC Rules of Procedure, which provides that the ECOSOCC General Assembly is the body vested with the authority to remove a member for conduct contrary to the objectives and functions of ECOSOCC, and only after such member has been afforded a reasonable opportunity to be heard. He further referred to Rule 8.2 of the Rules of Procedure, which empowers the ECOSOCC Disciplinary Committee to inquire into the conduct of members, and asserts that no such inquiry was undertaken in his case. 7.It is the petitioner’s case that neither the office of the 1st Respondent’ Chairperson nor any other organ of ECOSOCC possesses authority under the ECOSOCC Statute or Rules of Procedure to sanction elected members or the leadership of ECOSOCC, or to act on behalf of the General Assembly. Consequently, he maintains that the impugned decision contravened the AU’s Constitutive Act, the ECOSOCC Statute and its Rules of Procedure. He further states that four of the five members of the Disciplinary Committee disowned and objected to the action taken by the 1st respondent, terming it irregular. 8.The petitioner further avers that on two occasions, a two-thirds majority of members of the ECOSOCC General Assembly signed petitions calling for the convening of ordinary and extraordinary General Assemblies, but the requests were either ignored or repudiated by the Secretariat. Instead, he alleges that the Secretariat, with the support of the 1st respondent, convened a sham General Assembly in December 2020, despite the absence of authorization from either the General Assembly or the Standing Committee and without the requisite quorum, while presenting it as a legitimate General Assembly. 9.He further states that the Office of the Legal Counsel (OLC) of the African Union prepared a report addressed to the Office of Internal Oversight (OIO) recommending, pursuant to Rule 17(a) of the ECOSOCC Rules of Procedure, that the Chairperson of the 1st respondent urgently convenes a virtual session of the ECOSOCC General Assembly to address the matters in question. According to the petitioner, this recommendation was never acted upon by the 1st respondent for unknown reasons, thereby violating the ECOSOCC Statute. 10.The petitioner underscores that ECOSOCC members had consistently raised concerns before the 1st respondent regarding the management of the ECOSOCC Secretariat, including allegations of corruption, misappropriation of funds, misrepresentation, disrespect towards ECOSOCC leadership and obstruction of the reform agenda advanced by the leadership. He asserts that his efforts to champion reform and corrective measures in relation to those concerns were frustrated and that the respondents sought to silence the reform agenda. 11.The petitioner asserts that his indefinite suspension from his elected office to serve the AU and African people, was effected without proper application of the law, without due process and without legal authority under the ECOSOCC Statute and the AU’s Constitutive Act. He emphasizes that he had never received a formal warning prior to the impugned decision, which he claims was contrary to the established international standards, and that his numerous requests to engage the 1st respondent’s former Chairperson went unanswered. He further avers that his request to the former Chairperson to rescind the decision vide a letter dated 5th July 2022 was similarly ignored. He notes that his term of office eventually expired in December 2022. 12.The petitioner further states that the former Chairperson misled the Executive Council in order to advance improper objectives which were directed against ECOSOCC’s elected leadership. He also claims that the former Chairperson publicized the Petitioner’s suspension through a press release circulated across Africa, thereby causing serious injury to the Petitioner’s reputation. 13.On the basis of the foregoing, the petitioner contends that the 1st, 2nd, 8th and 9th respondents violated several of his constitutional rights and freedoms. In particular, he claims that his right under Article 32 of the Constitution were infringed when he was suspended as a member of ECOSOCC before his complaint was heard and determined by the General Assembly. 14.The Petitioner also alleges a violation of Article 33(1) of the Constitution by reason of attempts to censure him for exposing alleged dysfunction, abuse of office and misappropriation of funds within the AU. He pleads a violation of Article 35(1) of the Constitution by the respondents’ failure to furnish him with the actions that necessitated his suspension. 15.Additionally, the Petitioner claims that Article 47(1) and (2) of the Constitution was violated through the failure to comply with the legal and procedural requirements governing cessation of membership under the ECOSOCC Statute. Finally, he accentuates violations of Articles 48 and 50(1) of the Constitution on the ground that he was denied an opportunity to defend himself against the suspension. 16.In light of the outlined grievances, the petitioner implores this Court to grant the reliefs sought in the amended petition, contending that failure to do so would deny him the opportunity to clear his name and will leave ECOSOCC vulnerable to continued mismanagement by the Secretariat and undue influence by the 1st respondent. No responses by the Respondents 17.The Respondents did not file any responses to the petition or amended Petition despite being served with the same. Neither did they appear not file any submissions. The Petitioner’s and Interested Parties’ Submissions 18.The petitioner, through his counsel filed written submissions dated 10th October 2025 and outlined the principal issue for determination as- whether this Court has jurisdiction to hear and determine the petition. These issues were discussed under five sub-topics as follows. Primacy of the Constitution and the Extra-Territorial Application of the Bill of Rights 19.The petitioner submitted that this Court is vested with both constitutional and statutory authority to entertain the matter. Reliance was placed on Article 2(1) of the Constitution, which affirms the supremacy of the Constitution and its binding effect on all persons and State organs at every level of government. It was submitted that the 1st respondent, being an entity operating within the Kenyan legal sphere by virtue of its presence and actions affecting a Kenyan citizen, cannot be shielded from the application of the Constitution. The petitioner further invoked Article 21(3) of the Constitution, arguing that it imposes a duty upon State organs to address the needs of vulnerable groups within the society, including minorities and marginalized persons. According to the petitioner, a citizen confronted by the power of an international organization without access to its internal justice mechanisms falls within the category of persons deserving of such protection. 20.The petitioner relied on Article 21(1) of the Constitution, which obligates the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. It was submitted that this obligation arises whenever the rights of a Kenyan citizen are infringed, irrespective of the territorial location of the violator, particularly where the consequences of the alleged violation are felt within Kenya through injury to the petitioner’s reputation and professional standing. The doctrine of Diplomatic Protection and the Role of Kenyan State Organs, 21.the petitioner submitted that the 3rd to 7th respondents bear both constitutional and international law obligations to provide diplomatic protection to him. In support of this proposition, reliance was placed on Nottebohm Case [1955] ICJ 1. The petitioner argued that these respondents had failed to intervene or make representations to the AU on his behalf and had thereby neglected their obligations, rendering them necessary parties to the proceedings so that the Court may compel them to act. Particular emphasis was placed on the role of the 5th respondent, who was said to be a member of the AU’s Executive Council. In the petitioner’s opinion, that position imposes a specific responsibility upon the 5th respondent to safeguard and advance the rights of Kenyan citizens within the policy organs of the AU. The petitioner submitted that the failure to discharge that responsibility constituted a breach of a statutory and treaty-based obligation which is amenable to review and appropriate orders by this Court. Incorporation of International Law and Treaty Obligation, 22.The petitioner relied on Articles 2(5) and 2(6) of the Constitution, submitting that Kenya is a State Party to the Constitutive Act of the AU, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. It was argued that the petition does not invite the Court to sit on appeal over the decisions of the 1st respondent but rather to adjudicate upon the application of international legal principles that form part of Kenyan law. 23.The petitioner further invoked the principle of pacta sunt servanda, namely that agreements must be honoured and argued that the actions of the 1st respondent ought to be consistent with the human rights objectives embodied in the instruments governing it. In that regard, it was submitted on his behalf that this Court possesses jurisdiction to ensure that those incorporated international norms are not violated with impunity. The Territorial Nexus and Localization of the Violation 24.The Petitioner submitted that the dispute bears a substantial and direct connection to Kenya in that he is a Kenyan citizen residing in Nairobi and that the injury to his reputation was disseminated internationally, including within Kenya, thereby causing him harm. He further argued that the impugned suspension impeded his ability to serve the African diaspora and to advance his professional career from his base in Kenya. It was also pointed out that the legal notice demanding redress originated from Kenya and that the Kenyan Government, as a member state of the AU, serves as the principal conduit through which decisions of the AU are implemented and enforced within the national territory. Accordingly, the Petitioner underscored that, the joinder of the Kenyan State was necessary to prevent it from being complicit in, or failing to mitigate, the alleged unlawful acts perpetrated against him. On Exhaustion of Local Remedies and Access to Justice, 25.The petitioner relied on Articles 48 and 50(1) of the Constitution, which guarantee the right of access to justice and the right to a fair hearing respectively. He maintained that his suspension was effected without the benefit of any internal appeal mechanism or access to an independent tribunal within the structures of the 1st respondent. He further submitted that the ECOSOCC Disciplinary Committee, which ought to have addressed the matter, was sidelined during the process. In those circumstances, the petitioner submitted that a vacuum of justice had arisen, leaving the Kenyan courts as the only available forum for redress. Consequently, he argued that declining jurisdiction would effectively deny him access to justice and leave him without an effective remedy. Analysis and Determination 26.From the foregoing account, I find that the main issues for determination are:i.whether this Court has jurisdiction to entertain the petitionii.Whether the Petition is meritediii.What orders should this Court make? 27.The issue of jurisdiction must be resolved at the outset, as it touches on the foundation of a Court's authority to entertain and determine a matter. The Supreme Court addressed itself on this issue in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) as follows:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 28.Similarly, the Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) opined as follows:“ 19.…Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself…In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 29.In this matter, the Petitioner impugns his alleged unlawful suspension from his elected position as a member of ECOSOCC, contrary to its Statute and Rules of Procedure. The petitioner asserts that the decision was undertaken without regard to ECOSOCC’s General Assembly and further without affording him an opportunity to be heard. 30.The petitioner avers that the suspension violated his constitutional rights. He faults the 3rd, 4th, 5th, 6th and 7th respondents for allegedly failing to afford him protection and redress in respect of the actions complained of. Ultimately, the petitioner seeks reliefs against the respondents owing to the cited alleged violations and their alleged effects on his professional reputation. 31.Albeit this Court determined the question of jurisdiction regarding the place of the 1st, 2nd, 8th and 9th Respondents in an earlier ruling rendered on 3rd July 2026, it is important to restate here the jurisdictional issue because the issues raised by the Petitioner on jurisdiction of the Court to hear and determine the petition as against all the respondents are intertwined. 32.The Supreme Court in Kandie v Ba & another [2017] KESC 13 (KLR) discussing a comparable matter observed as follows:“78.Before applying the ‘reasonable and justifiable’ test, therefore, a court must first determine whether a right has been limited under a particular law and in this case, we have held that the appellant cannot proceed with the case against the respondents, because the respondents are clothed with immunity from legal processes, which applies to the arrest and detention of the 1st respondent. Thus, the appellant’s right of access to justice through the courts, is necessarily limited, as the respondents’ immunity which is provided for in the law, and arises from treaties and conventions which form part of the laws of Kenya under article 2(6) of the Constitution. Sections 23 of the host country agreement further provides that senior officials of Shelter Afrique shall enjoy immunity from legal processes in respect of words or actions performed in their official capacity, immunity from personal arrest or detention, as well as from seizure of their personal and official baggage, and from inspection of their baggage; and Section 24 thereof extends the immunity to the Managing Directors and Officials of Shelter Afrique having the rank of Assistant Director, and that their immunities and privileges will be similar to those accorded to ambassadors.79.Is this limitation reasonable and justifiable? It is important to consider the factors set out in the Constitution, that will assist us to answer this question including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual does not prejudice the rights of others, as well the consideration the relationship between the limitation and its purpose, and whether there is a less restrictive means to achieve that purpose. We will herebelow carry out an analysis on the rights that the appellant alleges were unjustifiably limited.Article 4880.Article 48 of the Constitution provides for the right to access justice as follows:“The State shall ensure access to justice for all persons, and if any fee is required, it shall be reasonable and shall not impede access to justice.”81.The Court of Appeal examined the scope of this right in the case of Joseph Nyamamba & 4 others v Kenya Railways Corporation [2015] Civil Appeal No 239 of 2009 eKLR where it held that—“The scope of access to justice as so enshrined is very wide – it includes ability of a party to file suit in court, ability to access the police with legitimate expectation of fair, expeditious and prompt investigations of one’s complaint, prosecution of suspects, enforcement of decrees and orders issued by a court and prompt and fair compensation by government upon compulsory acquisition of one’s property for public use – see, for exposition of these principles, Dry Associates v Capital Markets Authority & anor Petition No 328 of 2011 (unreported).”82.The High Court, in the case of Kenya Bus Services Limited and anor v. Minister of Transport & 2 others [2012] eKLR, also conducted an analysis of article 48 and held as follows:“37.… Without access to justice the objects of the Constitution which is to build a society founded upon the rule of law, dignity, social justice and democracy cannot be realised for it is within the legal processes that the rights and fundamental freedoms are realised. Article 48 therefore invites the court to consider the conditions which clog and fetter the right of persons to seek the assistance of courts of law.”83.In the above context and in a nutshell, the appellant argued that the conferment of immunity upon the respondents has restricted her access to justice. To the contrary, the respondents argued that they were clothed with diplomatic immunity, whose purpose is to ensure efficient performance of the functions of a diplomatic mission, by its employees, and was therefore not disproportionate.84.In that regard, it must be noted that the right of access to justice provided under article 48 is not an absolute right listed under article 25 of the Constitution, and therefore it can, in proper circumstances, be limited by the law. In invoking article 24(3), the respondents have presented submissions as to why this right is reasonably and justifiably limited. It was argued on their behalf that, immunity is only a procedural bar, and not a limitation of the right to access justice, and it was not a disproportionate limitation as it served the purpose of fulfilling international law obligations of allowing diplomatic missions and its employees to carry out their functions. We agree with that submission, and find that it is not unjustified to hold that the legitimate aim of diplomatic immunity is for the state to meet its obligations under international law, and to allow diplomats and those clothed with diplomatic immunity, like the respondents, to effectively conduct their official functions, without any hindrance.85.In concluding on this issue, we therefore find that after balancing the right of the appellant to access justice, and Kenya’s obligation to ensure that it meets its international obligations of letting the respondents work without hindrance, the limitation on the right to access courts is not disproportionate. The conferment of immunity for the purposes of Kenya upholding its international law obligations, is to that extent, a reasonable and justifiable limitation of the right to access justice as provided under article 48 of the Constitution, and we so hold.” 33.The Court concluded as follows:“We have held that all treaties and conventions that Kenya has ratified form part of Kenyan law, subject to the Constitution. We have also held that the respondents were conferred with immunity against legal processes by the international agreements that Kenya entered into, though the immunity so granted was not absolute, as there were exceptions provided in the operative law. Finally, the privileges and immunities that the respondents enjoy were a reasonable and justifiable limitation of the right of access to justice.” 34.Equally, in Mary Kerubo Nyasimi v Sophia Huyer & 3 others [2021] KEHC 4217 (KLR), the plaintiff brought an action against Sophia Huyer, Kadra Royale of International Livestock Research Institute (ILRI) and the World University Services of Canada, alleging that the 1st and 2nd defendants in a bid to undermine her expertise on the aforesaid project while acting under the instructions of the 3rd and 4th defendants, maliciously caused to be written and published a letter to African Development Bank (AFDB) by way of email with the result that her reputation and professionalism was subjected to ridicule and odium. As a result, the plaintiff felt defamed and thus filed the suit and application seeking for damages against them. The defendants challenged the suit claiming that the Court lacked jurisdiction to entertain the suit as they enjoy diplomatic immunity. The Court held as follows:“23.I am convinced that the dispute between the plaintiff and the 1st and 3rd defendants falls within that envisaged under Article V(2) of the Host Country Agreement. Consequently, any legitimate claim against 1st and 3rd defendants can only be ventilated before the Ministry of Foreign Affairs as an alternative dispute resolution mechanism. In other words, the 1st and 3rd defendants enjoy immunity unless it is waived. In the case of Karen Njeri Kandie =vs= Alassane BA and Anotehr (2015) e KLR the Court of appeal expressed itself inter alia as follows:“... the conclusion is inescapable that the immunity that attaches to the 2nd respondent and its officers such as the 1st respondent finds recognition and legitimacy from international treaties entered into by Kenya including the Vienna convention which had express validation by the clear constitutional text found in Article 2 (6) of the 2010 constitution. In so far they impact and implicate. Article 48 of the right to access to justice, they constitute a legitimate limitation to the right. Moreover, they are not, in all circumstances of the case, disproportionate to the legitimate aims of conferment of state immunity.”24.In the end, I am convinced that the suit as against the 1st and 3rd defendants is improperly before this court because the 1st and 3rd defendants enjoy immunity from legal process.”[emphasis added] 35.On appeal in Nyasimi v Huyer & 3 others [2025] KECA 758 (KLR), the Court of Appeal affirmed as follows:“24.In the end, we find that the learned Judge rightly found that the 1st and 3rd respondents had a subsisting immunity against the legal proceedings and that the appellant’s claim should have been lodged with the Minister for Foreign Affairs as per the provisions of Article V(2) of the Host Country Agreement.” 36.The Court of Appeal further stated as follows at paragraph 26 observed of the Judgment:“The appellant argued that by affirming the immunity, she was denied the right under Article 48 of the Constitution to access justice. Our take is that the appellant’s right to access to justice was never infringed by the existence of the immunity. As we have already pointed out, the appellant was provided with another forum before the Minister of Foreign Affairs under Article V (2) of the Host Country Agreement. In the multifaceted approach of accessing justice, the immunity provisions, though shutting the door to the court system, left the alternative of resolution through the Ministry of Foreign Affairs open.” [emphasis added] 37.Additionally, the Privileges and Immunities Act which is an Act of Parliament to amend and consolidate the law on diplomatic and consular relations by giving effect to certain international conventions and otherwise; to consolidate the law relating to the immunities, privileges and capacities of international organizations of which Kenya is a member and of certain other bodies; and for matters incidental to and connected with the foregoing, provides as follows under section 9 (1):This section shall apply to any organization which the Cabinet Secretary may, by order, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members. 38.Relevant to this Petition, Article 2(1) of the General Convention on the Privileges and Immunities of the Organization of African Unity (now referred to as African Union) provides as follows:Property, funds, Assets and Transactions of the Organization of African UnityThe Organization of African Unity its premises buildings, assets and other property wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case the Organization of African Unity has waived such immunity in accordance with the provisions of this General Convention. It is, however, understood that no waiver of immunity shall extend to any measure of execution. 39.Discussing a similar matter, the Court in Joseph Gogo Ojango v African Union Commission [2018] KEELRC 2268 (KLR) observed as follows:“1.The respondent raised as preliminary, the objection that the respondent being an international organization of which the government of Kenya is a member was immune from legal process by virtue of Privileges and Immunities Act.2.It is not disputed that by Legal Notice Number 1 dated 10th December, 2014 the respondent was conferred with immunity as per section 9 of the Privileges and Immunities Act. The claimant herein contends that the cause of action herein accrued before the conferment of immunity on the respondent that is in 2010.3.It settled law that an organization enjoying immunity under the Privileges and Immunities Act cannot be subject to the legal process. This suit was filed on 19th May 2016 after the conferment of immunity on the respondent hence cannot be sustained.” 40.In this case, it is discernible from the facts presented that the petitioner’s grievance raises legitimate concerns relating to procedural fairness and compliance with ECOSOCC’s Statute and Rules of Procedures. 41.As stated elsewhere in this Judgment, the question of whether this Court can properly exercise its jurisdiction against the respondents herein as advanced by the petitioner was discussed and settled in the Ruling delivered on 3rd July, 2026 relying on the above cited authorities. 42.I have however reproduced part of the analysis on jurisdiction of the Court because it is useful in determining the aspect of the merits of the Petition as against the Kenyan Respondents and their constitutional mandate, backed by the Mitu-Bell Welfare Society v Kenya Airports Authority & 3 Others [2021] KESC 34 (KLR) case. 43.As guided by the cited authorities, such immunity may only be relinquished where there is an express waiver. There was no such waiver of immunity and as affirmed by the Supreme Court in the Kandie, (supra) case, the immunity accorded to international organizations constitute a reasonable and justifiable limitation on the right of access to justice guaranteed under Article 48 of the Constitution. 44.Therefore, this Court having found that the cause of action against the 1st, 2nd, 8th and 9th respondents was unsustainable and having struck off from this Petition the 1st, 2nd, 8th and 9th Respondents, on account that these parties, being organs and officials of the AU, enjoy immunity from legal processes under the applicable international instruments and domestically, the Privileges and Immunities Act. I now proceed to determine the merits of the petition against the 3rd, 4th, 5th, 6th and 7th Respondents. 45.In relation to the 3rd, 4th ,5th ,6th and 7th respondents, as correctly submitted by the petitioner, article 2(1) of the Constitution binds all persons and all State organs at every level of government. Further, Article 21(1) of the Constitution imposes upon the State and every State organ the obligation to observe, respect, protect, promote and fulfil the rights and fundamental freedoms guaranteed under the Bill of Rights. The nature and extent of these positive and negative obligations were affirmed by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 3 Others [2021] KESC 34 (KLR), where the Court underscored the State’s duty to take appropriate measures to give effect to constitutional rights and freedoms. 46.Consequently, while this Court cannot exercise jurisdiction over the AU or its organs and officials, it retains jurisdiction to interrogate the constitutionality and legality of the alleged conduct of the Kenyan foreign affairs Ministry and its officials represented by the 3rd, 4th, 5th, 6th and 7th respondents which is that, they allegedly failed to intervene or make representations on the Petitioner’s behalf in relation to his grievances. In view of this, the question is whether these respondents discharged their constitutional and statutory obligations in a manner consistent with the principles of the Constitution. 47.Evidently, since this Court lacks jurisdiction over the 1st, 2nd, 8th and 9th respondents, it follows that it cannot grant the reliefs sought jointly against them and the 3rd, 4th, 5th, 6th and 7th Respondents. 48.Therefore, has the Petitioner discharged the burden of proving that the 3rd, 4th, 5th, 6th and 7th respondents failed to discharge their constitutional mandate and if so, what are the available remedies in the circumstances of this case? 49.Article 23(3) of the Constitution empowers this Court to grant reliefs where a violation of rights or the Constitution has been established. Principally, the reliefs are declarations of rights, conservatory orders, an injunction, orders of judicial review, declarations of invalidity of a law that violates the bill of rights, compensation and any other appropriate relief. 50.The Supreme Court in Mitu-Bell Welfare Society (supra) guided as follows in relation to the reliefs that the Court may grant under Article 23(3) of the Constitution:“118.The Supreme Court had occasion to consider the scope of article 23(3) of the Constitution, as read with article 165(3)(d) of the Constitution in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others; Petition No 14, 14A, 14B and 14C of 2014 (Consolidated); The court stated:“… a close examination of these provisions (article 23(3) and 165(3)(d) of the Constitution) shows that the Constitution requires the court to go even further than the US Supreme Court did in the Marbury, and that article 23(3) grants the High Court powers to grant appropriate relief “including” meaning that this is not an exhaustive list.”The court went further to observe as follows: [Para 412]“It is emerging already, in this court’s path of jurisprudential development, that we have endeavoured to enhance and, as far as possible, stabilize the objective normative yardsticks that assure certainty and predictability in the application of the Constitution and the law to the merits of particular cases.” 51.The petitioner asserted that despite lodging complaints regarding the conduct of ECOSOCC and his suspension from ECOSOCC, the 3rd, 4th, 5th, 6th and 7th respondents failed to consider and address his grievances. Neither did the said Respondents respond to the Petition as amended, following the suspension of the Petitioner as a member of ECOSOCC. Simply put, the Respondents did not bother to respond to the Petitioner’s complaints in which he alleges breaches of his constitutional rights by the 1st, 2nd, 8th and 9th Respondents, who are immune from legal process and therefore as seen in this Judgment and Ruling of 3rd July 2026, no cause of action can lie against them. 52.Article 47(1) of the Constitution as operationalized by the Fair Administrative Action Act guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The importance of fair administrative action as a constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, as follows:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” 53.The Court of appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) observed as follows:“45.Under Article 47 (2) of the Constitution as read with the provisions of the Fair Administrative Actions Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principle of law in Kenya. A shift has taken place and there is requirement to give reasons for administrative decisions. (See also Section 45 (2) (a) and (b) of the Employment Act No. 11 of 2007). In Judicial Service Commission -v- Hon. Justice Mutava Mbalu, Civil Appeal No. 52 of 2014, Githinji JA in considering the duty to give reasons for administrative action in light of Article 47 (2) of the Constitution expressed that reasons for decision should be given as a matter of right where a right under the Bill of Rights has been or is likely to be adversely affected by the administrative action and not otherwise; that the right to be given written reasons for the decision can be limited by law for a reasonable and justifiable cause.46.Article 47 (2) of the Constitution as read with Sections 4 (3) (d) and 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Action Act require written reasons for administrative decision. Section 6 (1) as read with Section 6 (2) (a) of the Act stipulates that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary and such information shall include reasons for which the action was taken and any relevant documents relating to the matter. Sections 3(d), 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Act encompass a statutory obligation upon decision-makers to give written reasons for their decisions. This contrasts with common law that had stopped short of requiring reasons for all administrative decisions.” 54.The petitioner produced as exhibits, documents that included a letter addressed to Minister for Foreign Affairs, the 5th respondent herein marked ‘SO 4’ in the petitioner’s notice of motion application dated 15th November 2022. Besides that letter, the Petitioner did effect service of the petition and an amended petition upon the respondents and even after the court struck off the respondents who enjoy immunity from court action, the petitioner once again effected service of the petition and a notice upon the remaining Kenyan respondents prior to the Court reserving this matter for Judgment. The respondents never filed any response and neither did they attend Court nor file any submissions. 55.In the letter dated 17th June 2022, the petitioner sought the government’s intervention and support to stop the allegedly illegal activities being undertaken within ECOSOCC. The petitioner was suspended from office a few days later, on 21st June 2022. 56.In my humble view, noting that the petitioner could not sue the AU and its Organs or ECOSOC and its Organs and their officials for redress, it is the duty of the Kenya Government, through the Ministry of Foreign Affairs and its officials, who are under a duty to take up the complaint lodged by the Petitioner, through Diplomatic Channels. They however did nothing and neither did they respond to the complaints lodged by the Petitioner. 57.As earlier stated, this petition is not about the Petitioner alone. The issues raised affect every citizen working for the International or regional Organizations that enjoy immunity from legal process. 58.In the instant case, the Petitioner has demonstrated that he lodged his complaint with the 3rd, 4th, 5th, 6th and 7th Respondents concerning how he was being treated by the ECOSSOC officials. 59.The power to engage in international relations, request a waiver of immunity, or invoke diplomatic dispute resolution mechanisms rests strictly with the Executive branch (specifically the Ministry of Foreign Affairs). This is because, diplomatic disputes are matters of state sovereignty and foreign policy and the state possesses broad discretion in choosing if, when, and how to utilize diplomatic channels. 60.While citizens cannot forcefully compel the government to achieve a specific diplomatic outcome, the process by which the government handles a citizen's request for diplomatic intervention must comply with Article 47 of the Constitution. In this regard, a violation of this right to fair administrative action would occur under the following circumstances: - first, is complete inaction or "cold-shouldering". Here, if a citizen formalizes a complaint and requests the government to intervene via diplomatic channels (such as requesting a waiver of immunity from the international organization) or to protect him from threatened violation of his rights, the State cannot simply ignore the request. Total silence violates the requirement for expeditious and efficient administrative action. 61.Second, is absence of procedural fairness: if the Government decides not to engage diplomatic channels, it must act transparently and with reasons. The affected Kenyan citizen worker has a right to be given reasons for the refusal to act by the Government as mandated by section 4 of the Fair Administrative Action Act, 2015 and a fair hearing as guaranteed under Article 50 (1) of the Constitution and therefore, consideration of their complaint or petition before a blanket rejection is issued. 62.Third, is the failure to provide written reasons: thus, if the government declines to pursue the matter diplomatically, this amounts to violation of the right under Article 47(2) which explicitly grants the citizen the right to be given written reasons for that administrative decision or for failure to act. A failure to provide these reasons and in writing is a direct violation of the Constitutionally guaranteed right to fair administrative action. 63.Fourth, is arbitrariness and unreasonableness: here, if the State were to help certain citizens while ignoring others in identical employment predicaments without an objective legal benchmark, the action would fail the test of being lawful and reasonable. 64.In the instant case, it is clear that the 3rd, 4th, 5th, 6th and 7th Respondents did not respond to the complaints raised by the petitioner. The Ministry of Foreign Affairs' complete silence and failure to respond to the petitioner’s formal complaint constitutes a prima facie violation of the right to fair administrative action as guaranteed under Article 47 of the Constitution, which in effect also denied the petitioner the right to access justice as guaranteed under Article 48 of the Constitution as well as the right to a fair hearing guaranteed under Article 50(1) of the Constitution. 65.This is because, as discussed above, the Constitution does not envisage a situation where the government simply ignores an official request from a citizen facing threats or violation of rights by a body that cannot be sued by the citizen. Such total inaction breaches the constitutional mandates of responsiveness, transparency, and accountability as enshrined in Article 10. 66.Additionally, such complete silence also violates the right to expeditious and efficient Action: Article 47(1) of the Constitution guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Keeping a petition in perpetual limbo with zero response fails the test of expeditious and efficient governance. 67.Further, the Fair Administrative Action Act (FAAA), 2015, Section 4 of the thereof requires an administrator to give a person a fair opportunity to make representations and to consider those representations before making a decision. By ignoring the complaint filed by the Petitioner, as was the case in this Petition, the Ministry of Foreign Affairs failed its statutory duty to process and determine the request by the petitioner. 68.Moreover, as stated earlier, Article 47(2) dictates that if an administrative decision adversely affects a right, that person has the right to be given written reasons for the action. By remaining silent, the Ministry prevented the Petitioner from knowing why the Ministry of Foreign Affairs declined to use diplomatic channels, thereby making it impossible to evaluate if their inaction and non-responsiveness was lawful or arbitrary. 69.In the premises, and because the Ministry of Foreign Affairs failed to act, the appropriate legal remedy under Article 23 of the Constitution is that of Judicial Review. 70.I however note that the petitioner’s term of office ended in December, 2022, one month after he filed this petition and that therefore even if certain remedies available to him were to issue, such as mandamus to compel the Ministry to respond to his complaint and either use diplomatic channels to assist him or to give reasons for inaction, mandamus in those circumstances will be an inadequate remedy. Neither will mandamus compel performance to have the petitioner reinstated as that would be an order in vain and made without jurisdiction since it would involve the party who enjoys immunity from legal action being asked by the Cour to act. 71.On the scope and efficacy of mandamus, the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) opined thus:“What is the scope and efficacy of an Order of Mandamus? Once again, we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says: -“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”25.What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed…” 72.That said, the Petitioner’s grievance as a Kenyan citizen stem from a regional body to which Kenya is party. As can be appreciated, such grievances as against international bodies are not unique to the petitioner alone and can affect any person or citizen engaged in such diplomatic relations, hence, the need for a supervisory order. Essentially, the supervisory order would serve as a directive to the Kenyan respondents to establish, appropriate administrative processes for receiving, considering and responding to complaints presented by Kenyan citizens concerning violations of their rights and interests by international organizations 73.The importance of such an order was discussed in Republic v Council of Legal Education; Commission for University Education (Interested Party); Mount Kenya University (Ex parte) [2016] KEHC 7535 (KLR), where the court observed as follows:“One of the remedies which is now recognized in jurisdictions with similar constitutional provisions as our Article 23 is what is called structural interdict. In essence, structural interdicts (also known as supervised interdicts) require the violator to rectify the breach of fundamental rights under court supervision. Five elements common to structural interdicts have been isolated in this respect. In the first instance the court issues a declaration identifying how the government has infringed an individual or group's constitutional rights or otherwise failed to comply with its constitutional obligations. Secondly, the court mandates government compliance with constitutional responsibilities. The third stage is that the government is ordered to prepare and submit a comprehensive report, usually under oath, to the court on a pre-set date. This report, which should explicate the government's action plan for remedying the challenged violations, gives the responsible state agency the opportunity to choose the means of compliance with the constitutional rights in question, rather than the court itself developing or dictating a solution. The submitted plan is typically expected to be tied to a period within which it is to be implemented or a series of deadlines by which identified milestones have to be reached. Fourth, once the required report is presented, the court evaluates whether the proposed plan in fact remedies the constitutional infringement and whether it brings the government into compliance with its constitutional obligations. As a consequence, through the exercise of supervisory jurisdiction, a dynamic dialogue between the judiciary and the other branches of government in the intricacies of implementation may be initiated. This stage of structural interdict may involve multiple government presentations at several 'check in' hearings, depending on how the litigants respond to the proposed plan and, more significantly, whether the court finds the plan to be constitutionally sound. Structural interdicts thus provide an important opportunity for litigants to return to court and follow up on declaratory or mandatory orders. The chance to assess a specific plan, complete with deadlines, is especially valuable in cases involving the rights of 'poorest of the poor,' who must make the most of rare and costly opportunities to litigate. After court approval, a final order (integrating the government plan and any court ordered amendments) is issued. Following this fifth step, the government's failure to adhere to its plan (or any associated requirements) essentially amount[s] to contempt of court. In essence, structural interdicts (also known as supervised interdicts) require the violator to rectify the breach of fundamental rights under court supervision. Structural interdicts also provide significant advantages for the political branches. The very process of formulating and presenting a plan to the courts can improve government accountability, helping officials identify which organ or department of the State is responsible for providing particular services or for ensuring access to specific rights. In addition, structural interdicts have contributed to a better understanding on the part of public authorities of their constitutional legal obligations in particular areas, whilst also assisting the judiciary in gaining a valuable insight in the difficulties that these authorities encounter in their efforts to comply with their duties. The “check in” hearings that follow the initial interdict facilitate information sharing between qualified experts and government officials grappling with critical policy decisions and may clarify the content the rights at stake. In addition, structural interdicts may help authorities comply with otherwise politically unpopular constitutional obligations. An explicit court order to satisfy constitutional obligations can support government officials against pressure from small but politically powerful interest groups opposed to certain rights. Finally structural interdicts may provide a more fundamentally fair outcome than other remedies in Economic and Social Rights litigation. By requiring the responsible government officials to formulate a plan designed to operationalise the right in general, rather than just to remedy an individual violation thereof, structural interdicts can provide relief to all members of a similarly situated class, whether or not any given individual has the resources to litigate his or her own case. As such, structural interdicts do not privilege those who can afford to litigate over those who cannot, and can prevent “queue jumping” in access to Economic and Social Rights.” 74.The place of structural interdicts as an appropriate remedy was equally affirmed by the Supreme Court in Mitu-Bell Welfare Society (supra). 75.Therefore, as to what orders this Court should make, I grant the following reliefs as against the 3rd, 4th, 5th, 6th and 7th Respondents as stipulated in Article 23 of the Constitution:a.a declaration is hereby issued declaring that the petitioner's right to a fair administrative action guaranteed under Article 47 of the Constitution was violated by the 3rd, 4th, 5th, 6th and 7th Respondents’ failure to address his complaint against ECOSOCC through the available Diplomatic Channels;b.a declaration is hereby issued declaring that as a consequence of the denial of the petitioner’s right to fair administrative action, the petitioner’s right to access justice and the right to a fair hearing as guaranteed under Articles 48 and 50(1) of the Constitution were violated by the 3rd, 4th, 5th, 6th and 7th Respondents;c.in line with the decision in Republic v Council of Legal Education; Commission for University Education (Interested Party); Mount Kenya University (Ex parte), a supervisory order of mandamus is hereby issued compelling and directing the 3rd, 4th, 5th, 6th and 7th Respondents to, within nine months of the date of being served with this Judgment, develop and operationalise effective administrative mechanisms for receiving and processing complaints lodged by Kenyan citizens working for international or regional organizations, (against those organisations) to which Kenya is a party and which organizations enjoy diplomatic immunity from legal process.d.There shall be no orders as to costs.e.The Judgment to be served upon the 3rd, 4th, 5th, 6th and 7th Respondents who are the Attorney General and officials at the Ministry of Foreign Affairs respectively, for appropriate and necessary action. 76.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 1ST DAY OF SEPTEMBER, 2026R.E. ABURILIJUDGE