Immunity vs Jurisdiction: The CaseAgainst Immunity in Employment Claims


Immunity from suit refers to the legal protection that is given to certain persons (corporate bodies included). Immunity (when successfully asserted) is a complete shield against a Court’s power to hear and determine claims against such persons.

Legal cases against persons with immunity are often dismissed at the preliminary stage. This is on account of the Court’s lack of jurisdiction over such persons. The right of access to justice for aggrieved persons is therefore limited to this extent. This limitation is based in law and has been upheld by Courts. The Supreme Court of Kenya, for instance, in the case of Karen Njeri Kandie v Alassane Ba & another [2017] eKLR (Petition 2 of 2015 – Kenya Law) (the Karen Njeri Case) held that immunity was a reasonable and justifiable limitation to the right of access to justice.

The Karen Njeri Case was a sober reminder of the barrier that immunity poses to access to justice. In this case, Karen Njeri (then Shelter Afrique’s Finance Director) alleged that she had been physically assaulted by Alassane Ba (then Shelter Afrique’s Managing Director) and was hospitalised as a result. The issue of unfair termination and non-payment of dues was also raised. The case was, however, never heard on its merits. This is because Shelter Afrique and Alassane Ba objected to the jurisdiction of the Employment and Labour Relations Court (the Employment Court) to hear and determine the dispute on account of their immunity from legal process.

The Employment Court upheld the objection raised by Shelter Afrique and Alassane Ba, finding that it could not hear and determine the case against them. The Employment Court further held that diplomatic premises were inviolable and not even service of court process could be effected without the consent of the holders of immunity. Karen was also ordered to pay Alassane Ba and Shelter Afrique legal costs. The Court of Appeal and the Supreme Court affirmed the decision of the Employment Court.

Is Change in the air?

Recent decisions from Kenyan Courts shine a ray of hope for employees with claims against employers with immunity. The Employment Court in the case of Araba Adebisi v Alliance for a Green Revolution in Africa ( found the Alliance for a Green Revolution in
Africa (AGRA) guilty of unfairly terminating Adebisi and awarded him the gross sum of USD 153,371 plus interests and costs. This was despite AGRA’s preliminary objection that it was immune from suit and legal process (the First AGRA Case).

The Employment Court made an express finding, in the First AGRA Case, that there were certain cases where a Court could on the evidence presented conclude that immunity does not apply. In so doing, the Employment Court was guided by the Court of Appeal decision in Alliance for a Green Revolution in
Africa & another v Emime Ndihokubwayo (Civil Appeal 412 of 2018 – Kenya Law) (the Second AGRA Case) where the Court of Appeal held that the question of whether immunity conferred by the Privileges and Immunity Act, Chapter 179, Laws of Kenya applied is a matter of inquiry that could not be disposed of by
way of a preliminary objection.

One of the contractual provisions in the First AGRA Case played a key role in the favourable outcome. This was a clause where AGRA categorically stated that it “submitted to the exclusive jurisdiction of the courts of Kenya to settle any disputes that would arise in connection with the Claimant’s employment”.

The Employment Court was persuaded that the inclusion of this clause in Adebisi’s contract after AGRA had been granted immunity was indicative that AGRA had waived its right to immunity. In so doing, the Employment Court rejected AGRA’s claim that the clause was not a waiver of immunity.

Of most interest was the distinction that the Employment Court observed between immunity granted to international organisations and sovereign immunity. This being that sovereign immunity is inherent and
granted to states by virtue of being part of the community of nations and is protected by the articles of the Vienna Convention whereas the immunity enjoyed by international organisations is donated at discretion as it must be applied for.


The decisions of Kenyan Courts in the First and Second AGRA Cases mark great advancements in the fight for fair labour practices. They also herald a fork in the road for employers with immunity. Such employers must decide either to insist on their immunity status when contracting with employees (despite the unequal bargaining power) or to embrace fair labour practices and avail themselves to judicial scrutiny.

Legal advice is nonetheless indispensable for employers and employees in the review, drafting and enforcement of employment contracts where immunity may apply.

Disclaimer: The information contained in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. While the information is accurate as at date hereof, there can be no guarantee that the information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation.