NAIROBI, Kenya, June 16 – The Embassy of Sweden in Nairobi has moved to the Supreme Court seeking a determination on whether it can be sued by locally hired employees, in a case that could clarify the limits of diplomatic immunity in Kenya.
In a ruling delivered on June 12, the Court of Appeal certified that the embassy’s intended appeal raises a matter of general public importance, clearing the way for the dispute to be heard by the Supreme Court.
The case arises from claims filed by former employees Lucy Muingo Kusewa and Renalda Mboje Mjomba before the Employment and Labour Relations Court (ELRC), where they sought pension and other terminal benefits from the Swedish mission.
The embassy has maintained that, as an arm of a sovereign state, it enjoys diplomatic immunity and cannot be subjected to the jurisdiction of Kenyan courts without an express waiver of that immunity.
The Court of Appeal said the Supreme Court should determine whether employment contracts entered into by a foreign embassy form part of the ordinary functions of a diplomatic mission or constitute commercial activity capable of displacing diplomatic immunity.
“Whether a person’s employment (such as the respondents in the instant application) at the embassy falls within the ordinary functions of a diplomatic mission or constitutes a commercial activity capable of displacing diplomatic immunity,” the judges stated.
The ruling revives a legal battle that began in 2015 when the two former employees sued the embassy over employment-related claims.
The Swedish mission challenged the suits, arguing that the ELRC lacked jurisdiction because of the privileges and immunities accorded to foreign states under international law. However, the ELRC dismissed the objection in 2017, a decision that was upheld by the Court of Appeal in 2020.
In its latest application, the embassy argued that the dispute raises broader questions regarding Kenya’s obligations under international law, the interpretation of diplomatic immunity, and the treatment of foreign missions operating in the country.
The mission also contended that Kenyan courts have issued differing decisions on whether employment contracts entered into by foreign states and diplomatic missions amount to commercial transactions that can remove immunity protections.
Justices Francis Tuiyott, Ahmed Issack Hassan and Benjamin Ongaya agreed that the issue remains unsettled in Kenyan jurisprudence and warrants consideration by the Supreme Court.
The appellate judges noted that while the Supreme Court endorsed the doctrine of restrictive immunity in the 2017 case involving Karen Njeri Kandie, it did not specifically address whether employment contracts involving foreign states amount to commercial activities.
They found that the matter carries wider public interest implications because it affects diplomatic missions, foreign governments operating in Kenya and locally hired employees seeking legal redress.
However, the Court of Appeal declined the embassy’s request to stay ongoing proceedings before the ELRC, ruling that it lacked jurisdiction to grant such orders under the circumstances.
The case comes as courts around the world continue to grapple with the scope of sovereign immunity in employment disputes involving locally recruited staff working for foreign governments and diplomatic missions.
