Automated Summary
Key Facts
The petitioner, Talaso Lepalat, alleged her right to privacy was violated when her photograph was used without consent to market the Lake Turkana Film Festival sponsored by the Embassy of the Federal Republic of Germany. The petitioner argued that the embassy's involvement in the festival constituted a commercial activity under the Vienna Convention, thus waiving diplomatic immunity. However, the court ruled that the dispute centered on a human rights violation (privacy) rather than a commercial transaction, upholding the embassy's absolute immunity. The petition was struck out, but the petitioner was advised to pursue other co-sponsors not protected by immunity.
Issues
- What is the place of restrictive immunity in Kenya?
- What is the law as regards State immunity?
- Is the Preliminary objection sustainable in the context of the present Petition and what are the orders to be made?
Holdings
- The court upheld the preliminary objection and struck out the petition, determining that the Embassy of the Federal Republic of Germany is immune from the suit. The issue of the Petitioner's privacy violation was deemed not a commercial activity, and thus, diplomatic immunity under the Vienna Convention and Kenyan law prevails. The court emphasized that state immunity applies to non-commercial matters and that the Petitioner may pursue other co-sponsors of the festival not protected by immunity.
- The court ruled that the doctrine of restrictive immunity does not apply to human rights-based litigation in Kenya. While acknowledging the existence of restrictive immunity in international law, the court found no basis for its application in this case, as the dispute does not involve commercial transactions or acts jure gestionis but rather an alleged violation of constitutional rights.
Remedies
- The court ordered that each party bear its own costs, as no costs were sought in the proceedings.
- The court upheld the preliminary objection and struck out the petition dated 8th August 2014. The petitioner may pursue her claim in civil courts against other co-sponsors not protected by state immunity.
Legal Principles
- The court applied the principle of sovereign immunity as a rule of customary international law, holding that foreign states cannot be subjected to Kenyan courts in disputes involving their sovereign acts. This principle was central to the Respondent's preliminary objection and was upheld despite arguments linking the case to commercial activities.
- The judge evaluated state immunity through the lens of customary international law, referencing its incorporation into Kenyan law via Article 2(5) of the Constitution. This test determined that immunity applies to acts jure imperii (sovereign acts) but not jure gestionis (commercial acts), though the court found the present case fell outside commercial activity.
Precedent Name
- Gakuru & Anor vs Governor, Kiambu County & 3 Others
- Barri vs Mada Hotels Ltd
- Rahimoola vs Nizam of Hyderabad & Anor
- Dralle vs Republic of Czechoslovakia
- Aborwa vs IEBC and 2 Others
- S vs India
- Khumalo & 4 others vs Holomisa
- The Philippine Admiral
- Inter-Science Research and Development Services (pty) Ltd vs Republica Popular de Mozambique
- Skeen vs Federative Republic of Brazil
- Thai – Europe Tapioca Service Ltd vs Government of Pakistan
- Trendtex Trading Corp vs Central Bank of Nigeria
- Tachiona vs Mugabe
Cited Statute
- Foreign States Immunities Act 87 of 1981 (South Africa)
- Constitution of Kenya, 2010
- Vienna Convention on Consular Relations
- Privileges and Immunities Act, Cap.179
- Vienna Convention on Diplomatic Relations, 1961
Judge Name
Isaac Lenaola
Passage Text
- The latter is not by any stretch of imagination, a commercial activity. In fact in Section 4 of the Foreign States Immunities Act 87 of 1981 of South Africa, 'commercial transaction' has been defined to mean; (i) Any contract for the supply of services or goods; (ii) Any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such loan or other transaction or of any other financial obligation; and (iii) Any other transaction or activity of a commercial, industrial, financial, professional or other similar character into which a foreign state enters or in which it engages otherwise than in the exercise of sovereign authority, but does not include a contract of employment between a foreign State and an individual.
- 40. In the end, the Preliminary Objection is upheld and the Petition dated 8th August 2014 is struck out.
- I am persuaded by the above reasoning and it is clear to me that even in cases of enforcement of human rights, State immunity in our realm must be given its due place and must prevail over all claims save where a restriction to it is proved e.g. in commercial transactions as will be demonstrated herebelow.