[2023] KEELRC 920 (KLR)
The court found that the preliminary objection and interlocutory application challenging its jurisdiction on the ground of diplomatic immunity had already been addressed and dispensed with by a previous ruling. The court held that there was no basis to revisit or resuscitate these applications, as the issues raised...
Source-derived case information.
- Citation
- [2023] KEELRC 920 (KLR)
- Parties
- Applicant: Florence Otwori; Respondent: Caspar Merkle
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2385 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection and Interlocutory Application
- Outcome
- Preliminary objection and interlocutory application dismissed; matter to proceed to full trial.
- Judges
- L Ndolo
- Legal Topics
- Diplomatic Immunity, Jurisdiction of Court, Preliminary Objection, Interlocutory Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Otwori
Applicant
Caspar Merkle
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection and Interlocutory Application
Legal Issues
- 1 Whether the court has jurisdiction to hear the claim in light of the respondent's assertion of diplomatic immunity.
- 2 Whether the preliminary objection and interlocutory application on diplomatic immunity have already been determined by the court.
Ratio Decidendi
The court found that the preliminary objection and interlocutory application challenging its jurisdiction on the ground of diplomatic immunity had already been addressed and dispensed with by a previous ruling. The court held that there was no basis to revisit or resuscitate these applications, as the issues raised had been directed to be canvassed during the full trial. Accordingly, the only matter pending is the hearing of the main claim on its merits, and the parties were directed to fix the matter for hearing on a priority basis. The court declined to consider further submissions on diplomatic immunity at this interlocutory stage, emphasizing the need to proceed to trial.
Court Disposition
Preliminary objection and interlocutory application dismissed; matter to proceed to full trial.
Orders
- The preliminary objection and interlocutory application on diplomatic immunity are deemed dispensed with and will not be revisited at this stage.
- The parties are directed to fix the matter for hearing of the main claim on a priority basis.
Full Case Text
Judgment text and source record
23 paragraphs
Otwori v Merkle (Cause 2385 of 2017) [2023] KEELRC 920 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KEELRC 920 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 2385 of 2017
L Ndolo, J
April 20, 2023
Between
Florence Otwori
Claimant
and
Caspar Merkle
Respondent
Ruling
1. On October 5, 2021, counsel for the respondent, Ms Nyaguthie appeared before me and asked for a hearing date of the claim, which I granted and directed counsel to serve the claimant.
2. Counsel for the respondent appeared before me again on May 9, 2022, when she indicated that she had lost touch with the respondent. The court allowed counsel time to trace her client.
3. By a strange twist on September 27, 2022, counsel for the respondent sought to resuscitate a preliminary objection challenging the jurisdiction of the court on the ground of diplomatic immunity. As it turned out, this issue had already been dealt with by ON Makau, J.
4. By yet another twist, counsel now seeks to resuscitate an application dated July 19, 2018 on the same issue. I have looked at the court record and find that this too was dispensed with by ON Makau, J who on November 28, 2018, delivered the following ex tempore ruling:“After perusing the pleadings on record so far and the Notice of Motion dated 19. 7. 2018 I direct that the issues raised in the notice of motion should be canvassed during the trial. I further direct that the suit will go to full trial for determination on merit.Consequently, the respondent is placed at liberty to file and serve defence, witness statement and documents within 14 days.Mention on December 17, 2018 for pretrial directions.”
5. From the record, it is clear as day that the preliminary issues raised by the respondent either by way of a preliminary objection or an interlocutory application have been dealt with.
6. That being the case, what remains pending is to hear the parties in full trial and determine the matter one way or the other. Because the issue of diplomatic immunity will be canvassed at the trial, I will resist the temptation to look at the submissions filed by the parties in this regard.
7. The parties are directed to fix the matter for hearing of the main claim on priority basis.
8. These are the orders of the court.
DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF APRIL 2023LINNET NDOLOJUDGEAppearance:Mr. Agwata for the ClaimantMs. Nyaguthie for the Respondent