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Persons Who Seek Employment From Inter governmental Organizations, Embassies And Diplomats

Persons Who Seek Employment From Inter governmental Organizations, Embassies And Diplomats Should Approach Their Gates With Their Amber Lights On
There are many trapped in a financial whirlwind that seems to continue forever, some barely making ends meet with others with only enough to afford a meal for the day. Inevitably, they dream and pray about a well-paying job, with benefits like health insurance, fuel allowance and even mobile airtime allowance. When you land that job, it becomes inconceivable that one can lose it.

For one employee, the cookie crumbled when he was terminated by his employer. Christopher Wasike (Claimant) filed a claim in Court against his employer, International Center of Insect Psychology and Ecology (ICIPE), for what he termed as unfair termination of his employment contract. The claimant had been employed as an Electrician in ICIPE’s Facilities and Assets Unit from the year 2000 to 2016 when he was discharged.

He claimed that the discharge was unfair under Sections 41,43 and 45 of Employment Act and demanded that he be compensated by payment of Salary in lieu of Notice, salary for the remainder of his fixed term contract, compensatory damages for unfair termination and finally accrued leave and ex-gratia termination dues which amounted to Kshs. 3,117,066/=.

ICIPE responded to this claim by filing a Preliminary Objection in limine stating that the lacked jurisdiction to hear the matter because they enjoyed immunity from legal proceedings by virtue of the provisions of Article 27 of the ICIPE Charter and the Privileges and Immunities Act Cap 179 Laws of Kenya. They further added that the subject matter before the Honourable , related to matters which were intrinsically linked to their operations and that they were official and not private. Lastly ICIPE pointed out that they had not waived that immunity.

The Court was of the view that since the Preliminary Objection was raised even before ICIPE responded to the claim further because it touched on the Court’s Jurisdiction, then it had to be dispensed with first. Parties were advised to write submissions on the same.

ICIPE, represented by Walker Kontos’ Dispute Resolution Partner Greg Karungo and Senior Associate Henry Omino, submitted that ICIPE was an Intergovernmental Organization which enjoyed immunity from legal proceedings in Kenya by virtue of Article 27 of the ICIPE Charter as its constituting Law. They further submitted that, the Organization’s status, rights, powers, privileges and immunities were provided for by the Privileges and Immunities Act under Section 9 and Part I of the 4thSchedule. They also brought to the ’s attention that these immunities were granted through a legal notice No. 13 of 1989 issued by the Ministry of Foreign affairs. Finally they submitted that allowing the matter to proceed would entail interrogation of internal workings of the organization which would result to an unacceptable interference with their right to control and regulate its own work force.

The Claimant in his submissions stated that he had brought the suit seeking legal redress for the unlawful and illegal termination of employment. He further stated that the suit was lodged to assert his rights to fair labour practices as was guaranteed by the Constitution and protection form unfair termination addressed by the Employment Act. It was his submission that the Jurisdiction of the was inherent and was enshrined in the Constitution. He also stated that the Immunity enjoyed by ICIPE was subject to the constitution which provided for the right to fair administration of justice and the right to fair hearing.

After listening to the robust submissions by both parties, the was of the opinion that the Claim before it was purely an employment claim seeking payment of accrued benefits and compensatory damages for unfair termination of employment and there was no challenge to the immunity of the Organization.

The Court upheld the submissions tendered on behalf of ICIPE that the Court was bound by the Supreme Court decision where it held that immunity from legal proceedings conferred upon ICIPE erected a procedural bar to the Court over suits brought against it including the current suit. The Court also held that the Claimant should have resulted to Alternative Dispute Resolution Mechanisms under the ICIPE’s HR policy and disciplinary manual or Diplomatic mechanism through the Ministry of Foreign Affairs because the termination of his employment formed an intricate part of ICIPE’s operations as he was employed in an official capacity and not in a commercial or private capacity.

Therefore as advised by the Court, when seeking employment, especially with an intergovernmental organization or a diplomatic agency enjoying similar immunity, you should approach their doors with your amber lights on!

Greg Karungo,
Partner, Walker Kontos

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