https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9055

Okoiti & 8 others v H. E. (Former) President Uhuru Muigai Kenyatta & 33 others (Petition E216 of 2025) [2026] KEHC 9055 (KLR) (Constitutional and Human Rights) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9055 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E216 of 2025 F Gikonyo, RE Aburili & MO Ado, JJ June 25, 2026 Between Okiya Omtatah Okoiti 1st Petitioner Nyakina Wyclife Gisebe 2nd Petitioner Eliud Karanja Matindi 3rd Petitioner Bernard Muchiri Muchere 4th Petitioner Dr. Magare-Gikenyi Benjamin 5th Petitioner Kelvin Saitoti Naikuni 6th Petitioner Olive Naisinkei Ambrose 7th Petitioner Dr. Dancan Otieno Onyango 8th Petitioner Naomi Nyakerario Misati 9th Petitioner and H. E. (Former) President Uhuru Muigai Kenyatta 1st Respondent The National Executive 2nd Respondent The Cabinet Secretary For The National Treasury 3rd Respondent The Principal Secretary For The National Treasury 4th Respondent The Director General Public Debt Management Office 5th Respondent The Hon. Attorney General 6th Respondent The Controller Of Budget 7th Respondent The Auditor General 8th Respondent The National Assembly 9th Respondent Former Controller Of Budget Agnes Odhiambo 10th Respondent Former Auditor General Edward Ouko 11th Respondent Former Attorney General Prof. Githu Muigai 12th Respondent Former Treasury Cabinet Secretary Henry Rotich 13th Respondent Former Treasury Principal Secretary Kamau Thugge 14th Respondent Former Treasury Cabinet Secretary Ukur Yatani 15th Respondent Former Treasury Cabinet Secretary Njuguna Ndungu 16th Respondent The Controller Of Budget Margaret Nyakang’o 17th Respondent The Auditor General Nancy Gathungu 18th Respondent The Governor, The Central Bank Of Kenya 19th Respondent The Ethics And Anti-Corruption 20th Respondent Former Eacc Ceo/Secretary Halakhe D. Waqo 21st Respondent International Monetary Fund (Imf) 22nd Respondent and The Senate Of Kenya 1st Interested Party Law Society Of Kenya 2nd Interested Party Katiba Institute 3rd Interested Party Kenya Human Rights Commission 4th Interested Party Kenya National Commission On Human Rights 5th Interested Party Transparency International 6th Interested Party The Institute For Social Accountability (Tisa) 7th Interested Party International Commission Of Jurists (Icj-Kenya) 8th Interested Party The Kenya Debt Abolition Network (Kdan) 9th Interested Party National Taxpayers Association (Nta) 10th Interested Party Committee For The Abolition Of Illegitimate Debts (Cadtm) 11th Interested Party and Centre For Legal Aid And Clinical Legal Education (CLACLE) Amicus Curiae Ruling 1.The International Monetary Fund (IMF) was founded in 1945 as the agency charged with overseeing the so-called Bretton Woods system (named after the town in New Hampshire where the summit establishing it was held), as well as promoting post-war global economic growth. The Fund is a specialized agency established by agreement among its member governments and having wide international responsibilities, as defined in its Articles of Agreement, in economic and related fields within the meaning of Article 57 of the Charter of the United Nations. By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Fund is, and is required to function as an independent international organization. 2.The United Nations and the Fund are subject to certain necessary limitations for the safeguarding of confidential material furnished to them by their members or others, and therefore, nothing in the Agreement can be construed to require either of them to furnish any information, the furnishing of which would, in its judgment, constitute a violation of the confidence of any of its members or anyone from whom it shall have received such information, or which would otherwise interfere with the orderly conduct of its operations. 3.Since the IMF’s Articles of Agreement is an international agreement, its interpretation is governed by the rules on the interpretation of treaties. These rules are not necessarily the same as those governing the interpretation of the national laws in its member countries. The application 4.The 22nd respondent- the International Monetary Fund (IMF) applies, vide a notice of motion dated 17th March, 2026 to be struck out of these proceedings for reasons that it enjoys immunity from litigation instituted by the petitioners herein, pursuant to the Bretton Woods Agreements Act Cap 464 and Article IX Section 3 of the IMF Articles of Agreement. It also contends that it has not waived its immunity, of being exempt from all legal processes. 5.The application is supported by an affidavit sworn by The Assistant General Counsel of the IMF, Ms Melissa Su Thomas, on 17th March, 2026, deposing that IMF does not waive its immunity in respect of this petition and does not consent to this court’s jurisdiction. 6.It also prays that in the event that it is not struck out of the petition, then the court should direct the petitioners to serve it with the petition and time allowed to enable it file its response to the petition. 7.The 22nd respondent asserts that Kenya is a signatory to the Articles of Agreement of the International Monetary Fund [IMF] and that it ratified the Fund Agreement establishing IMF by enacting the Bretton Woods Agreements Act on 10th December, 1953. That Section 5 of the Bretton Woods Agreement Act provides that the provisions of the Fund Agreement shall have the force of law in Kenya. 8.The 22nd respondent relies on Section 3 of Article IX of the Fund Agreement which provides that IMF, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract. 9.The IMF further argues that Kenyan law expressly grants IMF immunity from every form of judicial process except to the extent that IMF expressly waives immunity. Further, that the nature of the immunity granted to IMF is such that it cannot be sued, impleaded, summoned, or otherwise subjected to the jurisdiction of national courts in any matter unless it agrees to waive immunity in a particular case, which immunity from every form of judicial process is intended to ensure its independent functioning. 10.It is urged that though not part of the sections of the Fund Agreement that were domesticated by the Bretton Woods Agreements Act, Section 1 of Article IX of the Fund Agreement sets out the purpose of the immunities and privileges granted to IMF being: “To enable the fund to fulfill the functions with which it is entrusted, the status, immunities, and privileges set forth in this Article shall be accorded to the fund in the territories of each member.” Accordingly, that the IMF, its immunity exists to permit it to effectively perform its global mandate without interference from or dependence on any single member’s courts. 11.IMF relies on the affidavit sworn by its Assistant General Counsel and decisions such as Creative Print House Limited vs Eastern and Southern African Trade and Development Bank [2015] eKLR where the High Court is said to have considered the immunity granted to the East African Development Bank (EADB) vide the treaty amending and re-enacting the Charter of the East Africa Development Bank entered into on 23rd June 1980 (the Charter) which was domesticated through the East Africa Development Bank Act, Cap 493A and which granted EADB immunity on similar terms to those granted to IMF. 12.The IMF asserts that this Court has no jurisdiction to entertain a matter where the party brought before the court is immune or exempted from the jurisdiction of the court. 13.On how various courts have upheld the immunity of the Fund, reliance is placed on various decisions including the United States Supreme Court in Jam vs International Finance Corp... 586 U.S (2019) which is said to have recognized that under the Articles of Agreement of the International Monetary Fund, IMF enjoys immunity from every form of judicial process except to the extent that it expressly waives immunity. 14.It further relies on the United States Court of Appeal, District of Columbia Circuit, in Eugene Nyambal Vs International Monetary Fund, 772 F.3d 277, 280 (D.C. Cir. 2014) where it was held that IMF’s immunity is broader than the protection afforded by the International Organization Immunities Act (IOIA’s) aegis alone. That under the dual protection conferred by the fund’s Articles of agreement and the IOIA, “the fund ... enjoys immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purposes of any proceedings or by the terms of any contract. 15.Further reliance is placed on the United States Court of Appeal, District of Columbia Circuit, in Leonard A Sacks & associates P.C V International Monetary Fund No. 21 – 7034 (D.C Cir. 2022) where the court, when considering an argument that the IMF had waived immunity held that it commences its analysis from the shared premise that IMF is generally immune from suit. 16.It was therefore urged that IMF has immunity from every form of judicial process in Kenya, Kenyan laws having granted it this immunity pursuant to the provisions of the Bretton Woods Agreement Act and that therefore the immunity should be upheld by this court. 17.The 22nd respondent further contends that the IMF’s immunity does not contradict the Kenyan Constitution and relies on the case of Karen Njeri Kandie Vs Alassane Ba & another [2017] KESC 13 (KLR), where the Supreme Court held that granting immunity to international organisations in order to meet Kenya’s international obligation does not violate the right of access to justice. 18.Further contention is that IMF had not waved immunity as provided for under Section 3 of Article IX of the Fund Agreement, which is the only exception to IMF’s immunity and which must be an express waiver of the immunity or by the terms of a contract. In this case, it was submitted that there is no suggestion that there are terms of a contract by which IMF waived its immunity and that its participation in these proceedings is to assert its immunity and seek to be excluded from the proceedings. 19.Reliance is further placed on Ministry of Defence of the Government of the United Kingdom v Ndegwa [1983] eKLR, where the Court of Appeal is said to have held that Kenyan Courts will not entertain proceedings against a party entitled to immunity, such as foreign sovereigns, diplomats, consular offices and international organization, unless the immunity is waived. IMF maintains that in the absence of an express waiver of IMF’s immunity, the prayers sought in the application dated 17th March 2026 should be upheld and the IMF be struck out from these proceedings. Responses 20.The 1st and 4th petitioners filed grounds of opposition while the 9th petitioner only filed submissions. They all jointly and severally contend that the 22nd respondent ought to remain a party to these proceedings because it is a proper and necessary party and not a peripheral observer or mere by stander as pleaded in paragraph 14 of the petition that:“…....it has been sued for violating Kenyan laws on borrowing by advancing on lent loan whereby redemptions were rolled over in 2023/2024 and 2024/2025 of Kshs 10b for each financial year and forward budgeted redemption rollover for 2025-2028 of Kshs 10b for each financial year aggregating to Kshs 50b” 21.The petitioners assert that the IMF having on lent loan to Kenya, which is not found in our statutes, constitutes an ineligible transaction disguised as a rollover hence its participation in these proceedings forms an integral factual and legal component of the dispute. Further, that any orders issued by this court concerning the IMF on lent loan will directly affect the IMF hence this court should not strike it out as the Court may end up making unenforceable orders. 22.According to the petitioners, the central constitutional question before this Court is not whether the IMF enjoys functional immunities under international law.It is their assertion that the real question is whether a treaty or statute may validly immunise an international institution from constitutional scrutiny where constitutional violations affecting sovereignty, public finance and fundamental rights are alleged and that in this regard, the Constitution answers this question unequivocally in the negative. 23.The petitioners contend that albeit Section 5 of the Bretton Woods Agreements Act and Article IX, Section 3 of the IMF Articles of Agreement purports to grant the IMF immunity from judicial process, the 22nd Respondent conveniently overlooks the foundational and non-derogable principle of Article 2 of the Constitution of Kenya, 2010 on the supremacy of the Constitution and the fact that "Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid." 24.The petitioners further contend that the Bretton Woods Agreements Act, being a statute enacted by Parliament, is ordinary law and not part of the Constitution and that it derives validity only from the Constitution and cannot override it. They argue that, to the extent that the Bretton Woods Agreements Act or the IMF Articles of Agreement purport to grant immunity that would shield the IMF from constitutional scrutiny or prevent Kenyan courts from enforcing the Constitution, such provisions are void to the extent of the inconsistency with the Constitution. 25.According to the petitioners, the correct interpretation of Articles 2(5) and 2(6) of the Constitution is that these provisions regulate the relationship between domestic/national law and international law and have nothing to do with the supremacy of the Constitution.second, that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the Constitution and third, is that the words "under this Constitution" at the end of Article 2(6) do NOT mean that treaties form part of the Constitution. Instead, they mean "as provided by the Constitution", e.g, through domestication by an Act of Parliament. 26.They further argue that if treaties were equivalent to the Constitution, ratification of any treaty would require an amendment to the Constitution under Articles 255 and 256, which is clearly not the constitutional design. 27.The petitioners argue that constitutionally, in their legislative power, both the Executive and Parliament are limited by Article 2(4) to ratify and domesticate treaties which conform to and are not in contravention of the Constitution. 28.The petitioners additionally hold the view that since the Bretton Woods Agreements Act (Cap 464), which commenced on 10th December 1963, predates the 2010 Constitution, it is subject to Section 7(1) of the Sixth Schedule to the Constitution, which provides that All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution. 29.The petitioners contend that Treaty-making power cannot amend the Constitution and that by dint of Articles 255, 256 and 257, the powers to ratify treaties do not confer on the political arms of government (Parliament and the Executive) the capacity to amend the Constitution through the back door using treaties. That these Articles establish the exclusive procedures for constitutional amendment. They argue that the Executive and Parliament cannot, through treaty ratification- alter constitutional structures, cede sovereignty, restructure judicial authority, modify Chapter Twelve on Public Finance, relinquish constitutional rights or surrender sovereign authority without approval of the people of Kenya. 30.The petitioners cite Chandler P. Anderson in his writing on the Extent and Limitations of the Treaty-Making Power Under the Constitution1 (published in The American Journal of International Law where the author argues that:1Source: The American Journal of International Law, Jul., 1907, Vol. 1, No. 3 (Jul., 1907), pp. 636-670“The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation.Where the treaty-making power is exercised by the sovereign power of a nation, the right to treat with other nations rests wholly in sovereignty and extends to every question pertaining to international relations.Where, however, the treaty-making power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant.So in the United States, where the people, as the sovereign power, have delegated through the medium of their State conventions or State legislatures the treaty-making power to a designated section of the Federal Government under the Constitution, such power rests in grant and is to be measured and exercised under the terms of such grant. The people, as the sovereign power of the nation, may by amendment to the Constitution enlarge or curtail the power delegated, or change the method of exercising such power, or the branch of the government authorized to exercise it; but subject to such changes, the provisions of the Constitution must always determine where the treaty-making power is lodged and the extent of such power and the manner of exercising it. The Federal Government is one of dele- gated and enumerated powers, and whatever inherent right that government may have to exercise the treaty-making power for the nation, such right is subject to the organic or fundamental law of the nation.”“... the power to make treaties for the nation has been delegated without reservation to the President with two-thirds of the Senators present concurring. The delegation of this power without reservation, however, does not necessarily mean that it may be exercised without limitations, and the question of what, if any, limitations there are still remains to be considered.”“The Constitution in terms imposes no specific limitations upon the subjects to be dealt with or the stipulations to be contained in treaties, and it must be presumed that in thus conferring the power generally and without definition the intention was that it should embrace every question affecting the interests of the nation in its international re- lations, subject only to such limitations upon the exercise of such power as might arise on account of the fundamental or organic law of the nation.As stated by Mr. Justice Clifford, in delivering the opinion of the United States Supreme Court, in Holden v. Joy (17 Wall. 242)-Inasmuch as the power is given, in general terms, without any de- scription of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.These limitations upon the exercise of the treaty-making power are due to the fact that the power itself rests in grant, as shown above, and being one of the delegated powers, stands on no higher footing than any of the other powers delegated under the Constitution, and, as the power to amend the Constitution is distinct from the treaty-making power, it cannot be exercised to the detriment or exclusion of the other provisions of the Constitution.In the language of Mr. Justice Field, in delivering the opinion of the United States Supreme Court, in the case of Geofroy v. Riggs (133 U. S. 267)-The treaty power, as expressed in the Constitution, is in terms un- limited excepted by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States.”“... the only limitations upon the exercise of the treaty-making power arise from the fact that it is one of the delegated powers resting in grant and is limited by the terms of the grant, and whatever limitations there are under the Constitution are due, on the one hand, to the division of certain powers between the several branches of the Federal Government, and, on the other hand, to the denial of certain powers to the Federal Government, and the reservation of certain powers to the States or to the people. The present question, therefore, brings the discussion back to that point.In considering this question it will be convenient to observe the distinction between the classes of limitations above indicated.Taking up first the possible limitations suggested by the division of certain powers under the Constitution among the several branches of the Federal Government, it necessarily follows from the subordination of the treaty-making power to the Constitution that it must be so exercised as not to encroach upon the powers delegated to the executive, legislative, or judicial branches of the government. It can neither override the powers delegated elsewhere nor deprive the other branches of the government of the right to exercise the powers entrusted to them by the Constitution. So far as the judicial branch of the government is concerned, no encroachment by the treaty-making power has arisen or can arise, for under Article III., Section 2, of the Constitution, quoted above, the judicial power extends to all cases arising under treaties, which provision has been construed to mean, not simply jurisdiction to apply treaty stipulations as rules of law, but the power to declare void a treaty in conflict with constitutional limitations. It is to be noted, however, that no treaty as yet has ever been declared void by the Supreme Court. So far as the executive is concerned, no conflict has arisen or is likely to arise, as that branch of the government is a part of the treaty-making power and not only has the initiative in the making of treaties but also has the right to withhold them from final ratification even after they are approved by the Senate. But between the legislative branch and the treaty- making power the question of its independent jurisdiction over matters entrusted to Congress has frequently been at issue.” 31.Therefore, in the view of the petitioners, to accept the IMF's argument that it is immune from all legal processes and that it has not waived immunity, would allow constitutional amendment through treaty law, which is a direct violation of Articles 255-257 of the Constitution on how the Constitution can be amended and would further be tantamount to swaying and continuing to submit Kenyans to the jurisdiction of the IMF thereby ceding too much power to the Executive and Legislature, allowing them to use treaty law to irregularly smuggle and entrench a foreign system of managing public finances into Kenya's constitutional order, in total and contemptuous disregard of the amendment procedures sanctioned by Articles 255, 256 and 257. 32.The petitioners further contend that in any event, the IMF is not a constitutionally established institution hence, the IMF cannot by mere treaty enjoy legitimate immunity in Kenya unless the Constitution is amended to allow such a development. They argue that the Constitutionally protected rights are absolute, not tentative or conditional rights and that within Kenya, the Constitution is superior to international agreements and therefore the Government cannot ratify treaties of unconstitutional content. 33.Further argument by the petitioners is that nothing in the Constitution makes treaties equal or supreme to the Constitution and that any construction where treaties are equal to or superior to the Constitution would permit irregular amendment of the Constitution in a manner not sanctioned and/or anticipated by Articles 255, 256 and 257. 34.The petitioners argue that Article 165 on jurisdiction of the High Court to determine the constitutionality of any law, any act or omission of a state organ and any question concerning constitutional interpretation cannot be excluded by treaty. They urge that no statute, treaty, or international agreement may remove this jurisdiction and that a clause granting immunity from "every form of judicial process" is in vain as it cannot constitutionally bar Constitutional interpretation; enforcement of the Bill of Rights; and Judicial review of public power exercised within Kenya. 35.Further argument is that the petition does not seek to enforce against IMF assets or property but seeks constitutional determination regarding governmental conduct involving the 22nd Respondent. Immunity from execution or commercial liability cannot operate as immunity from constitutional scrutiny. Therefore, that to hold otherwise would create extra-constitutional zones immune from the Constitution, contrary to Articles 1 and 2. 36.On the constitutional principles governing sovereign borrowing and treaty-making, the petitioners contend that the Treaty Making and Ratification Act (No. 45 of 2012) operationalises constitutional limits on treaty power, under sections which reinforce constitutional supremacy such as Section 3(3) which requires a referendum where a treaty affects sovereignty, independence, or territorial integrity; Section 6 which binds negotiators to constitutional values and requires consideration of regulatory impact; Section 7 which obliges the Cabinet to certify constitutional compatibility before ratification; and Section 8(9) which expressly prohibits Parliament from approving treaties inconsistent with the Constitution 37.The petitioners further argue that Article 201 of the Constitution sets binding principles governing public finance, including openness, accountability, responsible financial management, public participation, and equitable sharing of fiscal burdens. That these principles operate as substantive constitutional standards against which borrowing decisions - including those negotiated with the IMF - may be assessed. 38.Further, that Article 211 governs borrowing power which must be authorised by an Act of Parliament and Parliament must be informed of loan terms and conditions. They argue that because debt binds future taxpayers, borrowing authority cannot be exercised solely by the executive branch. 39.The petitioners assail the IMF programme, which conditions disbursements on structural reforms including privatisation, as raising serious questions about compliance with Article 211 of the Constitution. Additionally, they argue that Articles 220 and 221 require that national budgets disclose borrowing proposals and anticipated public liabilities and, in this regard, they fault the IMF On-lent loan’ for violating Article 201(c) and (d) on intergenerational equity and prudent public finance management. 40.The petitioners further contend that the immunity clause does not extend to unconstitutional conduct, even assuming that the IMF enjoys certain immunities under the Bretton Woods Agreements Act, in view of the principle of constitutional supremacy under Article 2 is non-derogable. 41.They urge that under international law, immunities granted to international organisations are functional and are limited to acts necessary for the performance of their official functions, and are not absolute licenses to act with impunity, nor do they shield such organisations from scrutiny where their actions directly cause constitutional violations within a member state. Reliance was place don Jam et al. v. International Finance Corp. (US Supreme Court, February 27, 2019), where the US Supreme Court ruled 7-1 in favour of a group of Indian farmers who sued the IFC, the private sector arm of the World Bank and held that international organisations are not entitled to absolute immunity and can be sued for their commercial activities and for actions that cause harm. Therefore, that by analogy, the IMF can be sued in cases where its activities have caused harm, including constitutional harm to local communities and the body politic. 42.It is argued that in this case, the 22nd Respondent's actions in imposing conditionalities that violate Kenya's constitutional framework on public finance, sovereignty and national security constitute conduct that falls outside the scope of any legitimate immunity hence, this court is said to have jurisdiction to examine such conduct and to determine whether it is consistent with the Constitution. 43.On comparative constitutional reasoning supporting the supremacy of the Constitution over treaties, the petitioners rely on American constitutional commentary which recognises that treaty powers cannot be construed to destroy constitutional limitations or fundamental rights. They quote several authors including:a.Thomas Jefferson who asserted the U.S. Constitution's supremacy over treaties when he wrote: "Our particular security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution." (Letter to Wilson Cary Nicholas, September 7, 1803.)b.Alexander Hamilton who wrote: " The only constitutional exception to the power of making treaties is, that it shall not change the Constitution… On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null." (The Works of Alexander Hamilton, 1796.)c.Supreme Court Chief Justice Joseph Story who wrote in his Commentaries on the Constitution (Section 1508): "[T]hough the [treaty] power is thus general and unrestricted; it is not to be so construed as to destroy the fundamental laws of the state. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument.… A treaty to change the organization of the Government, or to annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy what it was designed merely to fulfill, the will of the people."d.James Madison who stated: " I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation." (Debate in Virginia Ratifying Convention, June 19, 1788.)e.U.S. Senator Ted Cruz in his essay Limits on the Treaty Power, published on 01.08.2014 in the Harvard Law Review, that:i.Constitutional Supremacy: Treaties cannot override constitutional constraints or authorize action prohibited by the Constitution.ii.Sovereignty and Federalism: The treaty power cannot be used to bypass the structural limitations that protect state sovereignty and individual liberty.iii.Scope Constraints: Treaties must be related to matters of international concern and cannot violate individual rights protected by the Bill of Rights.iv.Courts: “must scrutinize the federal government’s powers to make and implement treaties. Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal government’s authority.”“... courts should enforce constitutional limits on the President’s power to make treaties and Congress’s power to implement treaties by preventing either from infringing on the sovereignty reserved to the states. Whether one couches this as a Tenth Amendment or a structural argument, the basic point is the people, acting in their sovereign capacity, delegated only limited powers to the federal government while reserving the remaining sovereign powers to the states or individuals. If the federal government could evade the limits on its powers by making or implementing treaties, then our system of dual sovereignty would be grievously undermined.” 44.That in Treaties Versus the Constitution (published in 1955 by Caxton Printers during a period of debate regarding the scope of federal treaty power relative to domestic law), Roger Lea Macbride, the late American lawyer, examines the legal relationship and potential conflicts between international treaties and the US Constitution. Exploring whether treaties can supersede constitutional limitations, he argues against using international treaties to bypass the U.S. Constitution, particularly regarding states' rights and individual liberties. 45.The petitioners urge that the U.S. case law consistently holds that the federal government cannot enter into treaties incompatible with the Constitution:a.Doe v. Braden (1853) affirms that U.S. courts have a legal "right to annul or disregard" the provisions of a treaty if "they violate the Constitution."b.Cherokee Tobacco (1871) declares that "a treaty cannot change the Constitution or be held valid if it be in violation of that instrument."c.Reid v. Covert (1957) reaffirmed that it "has regularly and uniformly recognized the supremacy of the Constitution over a treaty."d.Geofroy v. Riggs (1890) found that the treaty power does not enable the government "to authorize what the Constitution forbids."e.Boos v. Barry (1988) stated: "Rules of international law and provisions of international agreements… are subject to the Bill of Rights and other prohibitions, restrictions or requirements of the Constitution and cannot be given effect in violation of them." 46.The petitioners reiterate that the constitutional doctrine is that the treaty-making power is not absolute and cannot be used to amend the Constitution, violate its fundamental provisions, or alter the government's structure, since Treaties are subject to the Constitution and cannot override its requirements. That Treaties, including the IMF Articles of Agreement, are subordinate to the Constitution hence, provisions of any treaty that is inconsistent with the Constitution is void in Kenya. 47.On the the 22nd Respondent's application for suspension of time, within which it is required to file a response to the petition dated 24th April 2025, it is argued that this is unwarranted and is premised on a flawed immunity argument since the 22nd respondent was properly served with the petition and the notice of motion and had ample opportunity to file a response. 48.It is asserted by the petitioners that no prejudice has been demonstrated to arise if the time is not extended for the filing a response and that it is in the public interest that the petition is expedited. 49.On the the 22nd Respondent's reliance on archival immunity under Section 5 of Article IX of the Fund Agreement, the petitioners assert that this is misplaced and premature because the petitioners have not sought to compel the production of the IMF's internal archives. Rather, that if it will be sought disclosure of any documents that ought to be in the public domain, it will be limited to documents that the Government of Kenya is obligated to disclose under Article 35 of the Constitution and the Access to Information Act, 2016. 50.Further, that in any event, the 22nd Respondent cannot use archival immunity as a shield to prevent the disclosure of information that is necessary for the adjudication of constitutional violations. That the right of access to information under Article 35 is a fundamental right and that therefore, where the public interest in disclosure outweighs any claim to confidentiality, the Court is empowered to order disclosure. 51.It is argued that Article IX immunity relating to archives concerns evidentiary compulsion but does not extinguish constitutional jurisdiction, prevent judicial examination of legality, or prohibit adjudication of constitutional questions involving Kenyan State actors. 52.On the contention that the 22nd Respondent has not waived its immunity, - but immunity is not absolute, it is argued that the absence of a waiver does not mean that the Court lacks jurisdiction to determine whether the 22nd Respondent's actions are constitutional, since the question of immunity is distinct from the question of constitutional supremacy. That this Court has jurisdiction to interpret the Constitution and to determine whether any act or omission, whether by a State organ, a private person, or an international organisation - contravenes the Constitution. That jurisdiction is conferred by Article 165(3)(d) of the Constitution and is not ousted by a claim of immunity. 53.It was argued that the 22nd Respondent may choose not to participate actively in these proceedings, but it cannot prevent the Court from making findings of fact and law that relate to its role in the impugned debts, nor can it prevent the Court from issuing orders against the Government of Kenya that may have the effect of altering or suspending the IMF’s ‘On-lent loan. 54.According to the petitioners, Striking out the IMF would prejudice the petition and deny justice in that it will prevent the Court from fully understanding the causal link between the IMF ‘On-lent loan’ and the impugned debt stock (a core pleaded issue); fragment the dispute and impair effective remedies, undermine the petitioners’ ability to obtain effective remedies under Articles 22 and 258, allow Kenyan state organs to hide behind an external actor while implementing potentially unconstitutional policy;and shield contested public finance arrangements from constitutional scrutiny. Further, that this would defeat the transformative purposes of the 2010 Constitution and the public-interest character of the proceedings. 55.Finally, it was contended that the test for striking out a party had not been met since it had not been shown that no reasonable cause o action exists or that the party is wholly unnecessary to the dispute. 56.In response to the affidavit of Melissa Su Thomas it was submitted that while the existence of the IMF Articles of Agreement and the Bretton Woods Agreements Act is not disputed, their legal effect is subject to constitutional limitations and to provisions of the Treaty Making and Ratification Act (No. 45 of 2012) hence the assertions of absolute immunity are inconsistent with Articles 1, 2, 10, 159 and 165 of the Constitution. Further, that archival inviolability cannot extinguish this Court's jurisdiction to determine constitutional questions. Analysis And Determination 57.We have considered the respective parties’ rival positions on this issue of whether the 22nd Respondent should be struck out from these proceedings on account of immunity. 58.From the onset, we acknowledge that the issue was well articulated by the petitioners and the 22nd respondent. However, there is a preliminary question that we pose and answer. That question is this: Can a court, in an application primarily seeking to address a misjoinder of a party and in this case, a respondent, determine the constitutionality of a statute or a treaty that grants immunity to that party, which substantive questions would have independently warranted a constitutional petition? 59.In our view, constitutional questions are best determined in proceedings expressly initiated for that purpose, namely, constitutional petitions under Articles 22 and 258 of the Constitution. This principle underscores that courts do not normally have jurisdiction to determine the constitutionality of statutes or treaties in procedural or incidental applications unless such issues are directly and expressly raised within a proper constitutional challenge. 60.In this case, where the petitioners have vehemently opposed the striking out of the 22nd respondent from the petition, while raising issues concerning the constitutionality of a the treaty and statute that grants immunity to IMF, without a formal constitutional petition challenging that statute or treaty, we find, without in-depth discussion, that an application to strike out a respondent from a constitutional petition is a procedural application whose main purpose is to determine whether the 22nd respondent is properly enjoined or whether the claim against it is legally tenable. The application does not, by itself, challenge the constitutionality of the Treaty or statute granting immunity to the 22nd respondent. 61.Therefore, whereas we appreciate that in the course of determining the constitutional petition, we may encounter related constitutional questions, such incidental questions are largely confined to the context of the substantive petition, having regard to the constitutional and legal foundation of the petition and the reliefs sought in the main petition. Absent a proper constitutional petition, the court's jurisdiction to determine the constitutionality of a statute or treaty would be limited. 62.This is because, the immunity granted by statutes or treaties often raise constitutional questions about sovereignty, jurisdiction and the rule of law. Such issues must be raised in a constitutional petition where the petitioner seeks a declaration that the statute or treaty or provisions therein are unconstitutional. 63.Raising such issues in a procedural application in opposition to the striking out of a respondent as is in the present case, without a proper constitutional petition, does not, in our view, vest jurisdiction on this Court to make a binding constitutional decision. 64.Onto the question of whether the application for striking out of the 22nd respondent is merited, the 22nd respondent contends that Kenya is a signatory to the Articles of Agreement of the IMF and that it ratified the said Agreement by enacting the Bretton Woods Agreements Act on 10th December, 1963. That under section 5 of the said Act, the provisions of the Fund Agreement shall have the force of law in Kenya. 65.This position resonates with Article 2 (5) and (6) of the Constitution of Kenya, which provides that:2(5)The general rules of international law shall form part of the law of Kenya.(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution 66.So far, there is no constitutional petition challenging or that has successfully challenged the constitutionality of the Bretton Woods Agreements Act, which grants immunity to the IMF from all legal process. 67.On who a respondent is, Rule 2 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 define a respondent as follows:“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom; 68.On addition, joinder, substitution and striking out of parties to the petition, the aforesaid Rules provide at Rule that:The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—(a)Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.(b)A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.(c)Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.(d)The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—(i)order that the name of any party improperly joined, be struck out; and(ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents. 69.The above Rule 5 provide the basis for striking out a party from a petition, either on the court’s own motion or on application, and at any stage of the proceedings. 70.Section 1 of Article IX of the Fund Agreement sets out the purpose of the immunities and privileges granted to IMF. It states that the purposes of Article IX are:To enable the fund to fulfill the functions with which it is entrusted, the status, immunities, and privileges set forth in this Article shall be accorded to the Fund in the territories of each member. 71.Historically, the IMF enjoys broad immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract. In other words, immunity of IMF is not absolute. 72.In Ndegwa v The Ministry of Defence of The Government of The United Kingdom (1983) KLR, the Court stated that it is a matter of international law that our courts will not entertain an action against certain privileged persons and institutions unless the privilege is waived and further that a court will not entertain a suit against such person where it had neither waived its immunity nor consented to submit to the jurisdiction of Court of Kenya. 73.In Leonard A. Sacks & Associates, P.C. v. International Monetary Fund, No. 21-7034 (D.C. Cir. Feb. 25, 2022), the D.C. Circuit affirmed the dismissal of a suit against the International Monetary Fund (IMF) that sought to modify or vacate an arbitration award after concluding that the IMF did not waive its immunity from judicial process in the agreement that authorized the arbitration. 74.In that case, the IMF hired Leonard A. Sacks & Associates, P.C. to negotiate disputes it had with several contractors related to renovations of the IMF’s headquarters. The agreement between the IMF and Sacks incorporated the IMF’s immunity “from every form of judicial process” and explained that, in accordance with the IMF’s broad immunity, disputes concerning the agreement were “to be resolved not by litigation, but by arbitration.” The agreement’s arbitration clause concluded by stating: “It is understood and agreed that the submission of a claim or dispute to arbitration … shall not be considered to be a waiver of the immunities of the IMF.” 75.A dispute arose between Sacks and the IMF regarding Sacks’ fee. The parties submitted that dispute to arbitration and an arbitration panel awarded Sacks a small increase in its fee. Sacks was displeased with the result of the arbitration and sued the IMF in D.C. Superior Court seeking a modification or vacatur of the arbitration award, as generally allowed by D.C. law. 76.The IMF moved to dismiss Sacks’ action based on its immunity. The District Court granted the IMF’s motion and Sacks appealed to the D.C. Circuit, which affirmed. The D.C. Circuit compared the agreement between Sacks and the IMF to the contract in C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001), in which the U.S. Supreme Court held that a Native American tribe had waived its immunity to a suit in state court under the terms of an agreement with a construction contractor that included an arbitration clause that the Supreme Court held established that the tribe had consented to the enforcement of arbitration awards under the arbitration clause in Oklahoma State Court. 77.Unlike the contract in C & L Enterprises case, the “IMF contract contained express preservations of immunity.” The IMF-Sacks Agreement viewed “resolution of disputes by arbitration as part and parcel of preserving the IMF’s immunity from judicial process.” The IMF-Sacks Agreement’s arbitration clause also concluded by noting that “the submission of a claim or dispute to arbitration … shall not be considered to be a waiver of the immunities of the IMF.” 78.Based on this language, which distinguished the IMF-Sacks Agreement from the agreement at issue in C & L Enterprises, the D.C. Circuit concluded that it could not say that the IMF explicitly waived immunity. The D.C. Circuit therefore affirmed the dismissal of Sacks’ suit. 79.In our jurisdiction, in Karen Njeri Kandie vs Alssane BA, & Shelter – Afrique, Nairobi, Civil Appeal No. 20 of 2013 (unreported), where the appellant had sued the Respondents for various reliefs and remedies arising from alleged physical assault and other claims, in confirming the High court’s decision, the Court of Appeal found 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 and had express validation by the Articles 2 (6) of the Constitution of Kenya. 80.In Creative Print House Limited v East African Development Bank [2015] eKLR - Civil Case 176 of 2014, where the defendant, East African development Bank had been sued and it filed an application similar to the one before this Court, seeking the following prayers, among others:a.The Defendant enjoys immunity from every form of legal process pursuant to Article 44 (1) of the Charter of the East African Development Bank annexed to the Treaty for East African Co-operation of 1967 as amended on 23rd July 1980 and as set out in the Schedule to the East African Development Bank Act, Cap 493 and amended by the Finance Amendment Act of 2013, Act No. 38 of 2013.b.The Defendant has not expressly waived its immunity in writing. 81.The plaintiff in opposing the application claimed that the transaction giving rise to the Plaintiff’s cause of action is an ordinary commercial transaction between a Banker and its customer and was not a commercial transaction but one carried out in a private capacity and hence the alleged immunity does not apply, E. Ogola J stated as follows and we concur:“The Defendant, the East African Development Bank (hereinafter 'the EADB') was originally established by the governments of Kenya, Uganda and Tanzania pursuant to Articles 21 and 22 of the Treaty for East African Co-operation dated 6th June, 1967. Following the collapse of the original East African Community, the same three governments entered into a further treaty Amending and Re-enacting the Charter of the EADB which was signed and entered into on 23rd June 1980 ("Charter"). The Charter is annexed to the Treaty for East African Co-operation of 1967 as amended on 23rd July 1980 (hereinafter 'the Treaty'). In order for Kenya to fulfil its obligations under the Charter, the Kenya Parliament enacted the East African Development Bank Act, Cap 493A (hereinafter 'the Act') to give legal effect to certain articles of the Charter and the Treaty. The Act came into force on 18th May 1984. Section 3 of the Act incorporates the provisions of the Charter in the following terms: "the provisions of the Charter annexed to the Treaty for East African Co-operation, 1980 and set out in the Schedule to the Act shall have the force of law in Kenya". The Schedule sets out the provisions of the Charter annexed to the Treaty which have the force of law in Kenya. EADB's case on statutory immunity is based on the premise that it is an international organization established by sovereign states by way of the Charter - the immunity provisions of which have been domesticated by the Kenyan Parliament in terms of the Act. These sovereign states have jointly determined the legal status, capacities, privileges and immunities of EADB. The court is prevented from altering the sovereign will of states as expressed in the Charter – particularly when that sovereign will has been given full effect and reinforced by a Kenyan statute. Quite separately, Articles 2(5) and (6) of the Constitution of Kenya 2010 also provide that the general rules of international law and any treaty or convention ratified by Kenya form part of the Laws of Kenya. Article 42 of the Charter provides as follows;"to enable the bank to effectively fulfil its objectives and carry out the functions with which it is entrusted, the status, immunities exemptions and privileges set forth in the chapter are to be accorded to the Bank in territories of each of the Member states."Article 44(1) of the Charter provides as follows;''the bank shall enjoy immunity from every form of legal process except in any case where it has expressly waived its immunity in writing, when it may be sued in a court of competent jurisdiction in a Member state in which the Bank has an office and has appointed an agent for purpose of accepting service or notice of process. It is however understood that no waiver of immunity shall be implied or extend to any measure of execution."There is an amendment to the Schedule to the Act introduced by section 30 of the Finance Act, Act No. 38 of 2013. The amendment came into force on 1st January 2014 pursuant to section 1(d) of the Finance Act, No. 38 of 2013.The wording of the provisions of the Charter which have been reproduced in the Schedule to the Act is similar to that in the main Charter. The plain meaning of Article 44(1) of the Charter is that the EADB enjoys absolute immunity from every form of legal process except where it has expressly waived its immunity in writing. There is no evidence that the EADB has waived its immunity in writing to enable the plaintiff to sue the EADB in these proceedings. This means that the EADB is exempted from the jurisdiction of this court and is therefore immune from any proceedings brought against it. In essence, the court has no jurisdiction to entertain a matter where the party brought before the court is immune or exempted from the jurisdiction of the court. It is clear to me that EADB enjoys immunity arising from the Charter establishing it and further that in considering whether or not the EADB enjoys immunity the issue of immunity must be judged only on the basis of its Charter and Treaty provisions as these are the documents that established the Bank.” 82.The learned Judge emphasized that:“It is important to note that in this suit, immunity is expressly conferred by an international legal instrument which is subsequently adopted in Kenya through a local legislation. As we have seen, the bank enjoys immunity from every form of legal process except in any case where it has expressly waived its immunity in writing. This court has not been shown any such waiver, leave alone a written one. In this regard, the Defendant’s claim to immunity cannot be challenged. In fact, in this case, Clause 29 of the said Agreement expressly provides that:-“Nothing in the agreement shall operate or be regarded as a waiver, renunciation or other modification of any right, privilege or immunity of the bank under the Treaty and Charter establishing the bank, under international conventions or under any other applicable laws.”1.The learned judge, citing many other decisions, rejected the submission by the Plaintiff that the transactions giving rise to the Plaintiff’s cause of action was an ordinary commercial transaction between a banker and its customer and cautioned any party who engages with personalities who enjoy these kinds of immunities is to ensure that they secure express waiver of immunity in writing before engaging further. 83.Ultimately, in Kandie v Ba & another (Petition 2 of 2015) [2017] KESC 13 (KLR) (28 July 2017) (Judgment). The Supreme Court of Kenya faced with a similar question of immunity of international organizations from legal process in Kenya held that a limitation on the enjoyment of the right of access to justice for purposes of the conferment of immunity as recognized in instruments ratified by the State was justifiable and reasonable. 84.The apex court also addressed a similar issue raised by the petitioner herein that the Bretton Woods Agreements Act is inferior to the Constitution because it was enacted prior to the 2010 Constitution. The Court discussed the retrospectivity of constitutional provisions, how an assessment as to whether a constitutional provision was of retrospective effect would be done, whether article 2(6) of the Constitution was of retrospective effect and was applicable to international treaties, agreements and conventions ratified by Kenya prior to the promulgation of the 2010 Constitution. It held as follows on this question of retroactivity of Article 2(5) of the Constitution:“40.This Court has itself previously addressed the question of the retrospective effect of the Constitution in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others Sup Ct. Application No 2 of 2011; [2012] eKLR, (Samuel Kamau Macharia) where it held [para 62]:“At the outset, it is important to note that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.”41.We reiterate the above holding, and from a plain reading of article 2(6) of the Constitution, it appears that the Constitution is silent on whether treaties ratified prior to the 2010 Constitution also form part of the laws of Kenya. In our view, however, the language of article 2(6) itself should be the beginning of the resolution of the question of retrospectivity, and we note in that regard that, it does not distinguish the types of treaties and conventions that form part of Kenyan law; because the language plainly commands that any treaty or convention that Kenya has ratified becomes part of the laws of Kenya. The provision does not also distinguish treaties and conventions ratified before or after the Constitution of 2010, and therefore, in this particular instance, the agreements and Conventions that Kenya entered with Shelter Afrique, although ratified before 2010, are in force, have remained unrevoked, and therefore, form part of the laws of Kenya, only subject to the Constitution.42.We, further, and as a consequence of the above finding, restate our position in Samuel Kamau Macharia, that the Constitution cannot be subjected to the principles of statutory interpretation that prohibit retrospective application of laws generally; and where need be, only the language of the Constitution should be a guide as to whether a provision applies retrospectively or not. We also agree with the Court of Appeal, in the present case, that an interpretation of article 2(6) of the Constitution in a manner that distinguishes treaties which Kenya ratified prior to, and after the 2010 Constitution, is not tenable, and we believe that this interpretation is also in line with section 7(1) of the Sixth Schedule which reads:“All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.”It is our finding, in a nutshell, that our reading of article 2(6) of the Constitution can only lead to the conclusion that there is no bar to its provisions being applied retrospectively. 85.On the Status of the instruments that were ratified and domesticated by Kenya prior to the 2010 Constitution as applicable to the appeal before it involving Shelter Afrique Charter, granting it immunity status, the Supreme Court in the above Karen Njeri Kandie case held that:“…58.We also note that the said Act commenced on December 14, 2012, a number of years after the Legislature had enacted the Shelter Afrique Act, which as we have stated, excluded any direct provisions that would have conferred on the respondents immunity against legal process. The question that then arises is this: in this constitutional era, should the Shelter Afrique Act be considered superior to the agreements that Kenya concluded which gave rise to certain international obligations including grant of immunity to the respondents in the terms expressed elsewhere above? We think not. We state so because the provision on immunity against legal processes in the agreements Kenya entered into are in tandem with the objectives set out in the Shelter Afrique Act, which in fact recognized the agreements that Kenya ratified in order to host Shelter Afrique in Kenya. In addition, by virtue of article 2(6) of the Constitution, the Shelter Afrique Act cannot be read to be derogating from the obligations Kenya entered into at the time of ratifying the relevant agreements. This is irrespective of the fact that, the said agreements and conventions were concluded before the promulgation of the Constitution.59.In a nutshell, it is our finding that article 2(6) of the Constitution applies retrospectively in the circumstances of the appeal before us and the provisions of the Charter, Host Agreement and the Shelter Afrique Act must be read together and if so, they confer immunity on the respondents against legal processes including personal arrest and detention. The next question is whether that immunity is absolute or not.” 86.In the instant petition, the petitioners argued that the 22nd respondent is a necessary party to this petition because of its centrality in the odious debts controversy. Further, that its being struck out will prejudice the petitioner’s case. The Supreme court in the Karen Njeri Kandie case discussed the issue of immunity of Shelter Afrique from all legal processes vis Avis the Constitutional rights guaranteed under Article 48 on the rights to access justice and stated as follows:“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.”113.Concluding on this issue of immunity, after discussing questions of absolute and limited immunity, the apex Court stated as follows in the Karen Njeri Kandie case and we agree that:“87.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. These findings would leave us with only one other issue to address: costs. In light of the facts at hand, we exercise our discretion and order that each party shall bear its own costs in this matter.” 87.We are further in agreement with the Supreme Court and the petitioners that immunity is not absolute and in the present case, the Charter and the Fund Agreement is clear that the IMF may waive the immunity and therefore immunity is not absolute. We are also cognizant of the fact that before us, there is no formal petition seeking to lift the immunity of the 22nd respondent. 88.As earlier stated, this Court cannot by way of an interlocutory application, be asked to lift immunity enjoyed by the IMF without a substantive constitutional petition bringing to the fore questions of interpretation of international treaties and their applicability to Kenya, under the Constitution. 89.As deposed by the Assistant General Counsel Ms Melissa Su Thomas, the IMF has not waived its immunity in respect of this petition in accordance with Section 3 of Article IX of the Fund Agreement. 90.This Court is therefore satisfied that it has no jurisdiction to entertain proceedings against the IMF, as the latter is entitled to immunity from all legal processes, which immunity it has not waived. See the Court of Appeal Decision in Ministry of Defence of the Government of the United Kingdom v Ndegwa [1983] e KLR where it was held that Kenyan Courts will not entertain proceedings against a party entitled to immunity, such as foreign sovereigns, diplomats, consular and international organizations, unless immunity is expressly waived. 91.In the end, we find and hold that the IMF enjoys immunity from all legal nd judicial process in Kenya by dint of section 3 of Article IX of the Fund Agreement which has been incorporated in Kenya by the Bretton Woods Agreements Act Chapter 464 of the Laws of Kenya and Articles 2(5) and 2(6) of the Constitution. 92.We further find that IMF has not waived its immunity with respect to the present proceedings. We emphasize that Courts are not only guardians of domestic law but also of obligations validly assumed by the State in the international arena. Thus, playing a vital role in international relations through decentralized enforcement of international norms and state obligations. Put differently, where a treaty having a force of law in Kenya confers immunity upon an international organisation and no waiver has been demonstrated or exception established, judicial intervention against that entity is foreclosed. This is because, the immunity conferred by the Treaty is not a matter of procedural convenience but a substantive legal protection arising from binding international obligations. 93.Accordingly, absent a waiver in the manner contemplated by the Treaty and the statute domesticating that treaty, or an established exception, this Court is bound to accord full recognition to that immunity. 94.In the circumstances, we are persuaded that the continued participation of the International Monetary Fund in these proceedings cannot be sustained. 95.Further, allowing the 22nd respondent- IMF to remain a party to these proceedings in the name of a non-participant because it will prejudice the petition if struck out, in the clear pronouncement of the Supreme Court on the status of such international organizations is offensive to Article 163(7) of the Constitution which commands that all courts other than the Supreme Court shall be bound by the decisions of the Supreme Court. This Court is bound by the Karen Njeri Kandie VBa & Shelter Afrique(supra) decision. 96.We observe that the petitioners over relied on foreign decisions and writings which are of persuasive value rather than binding effect on this Court and whose circumstances were totally different. For example, the Leonard Sacks case is cited by the petitioners in a totally different perspective yet the decision supports the 22nd respondent’s position of the IMF waving the immunity card at courts of member states and succeeding. 97.For the foregoing reasons, we allow the notice of motion dated 17th March, 2026 by the 22nd Respondent and order that the International Monetary Fund [IMF], is hereby struck out from these proceedings. 98.Each party to bear their own costs of the application. 99.We so order. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JUNE, 2026F. GIKONYO M. R.E. ABURILI M. ADOJUDGE-PRESIDING JUDGE JUDGE