The High Court has ordered the government to establish a formal mechanism for handling complaints from Kenyans working for international and regional organisations that enjoy immunity from legal proceedings in the country.
Justice Roselyne Aburili directed the Attorney General, the Ministry of Foreign Affairs, the Cabinet Secretary and Principal Secretary responsible for foreign affairs, as well as Kenya’s Ambassador to the African Union, to establish and operationalise the mechanism within nine months after being served with the judgment.
The decision followed a petition by Shem Odongo Ochuodho, a former member of the African Union’s Economic, Social and Cultural Council (ECOSOCC), who accused Kenyan officials of ignoring his request for diplomatic assistance after he was suspended from the organisation.
Ochuodho was suspended from ECOSOCC in June 2022. He challenged the decision, arguing that it had been made unlawfully and without giving him an opportunity to respond to the allegations against him. He also approached Kenyan authorities, asking them to intervene through diplomatic channels over what he considered unlawful conduct by the AU.
According to the judgment, however, his complaints did not receive a substantive response from the government. Justice Aburili found that the failure by the officials to consider and respond to Ochuodho’s complaint violated his constitutional right to fair administrative action under Article 47.
The judge said government authorities were not required to guarantee a particular outcome for a citizen seeking diplomatic intervention. They were, however, required to consider the complaint, make a decision and communicate that decision to the person who had raised it.
Where authorities declined to intervene, the court said, the circumstances could require them to provide reasons for that decision. Justice Aburili described the government’s failure to respond as an administrative lapse that left Ochuodho without an effective avenue for having his grievance considered.
The court said the issue was broader than Ochuodho’s individual circumstances because Kenyans serving in international organisations may encounter disputes with institutions that are protected by immunity. Such immunity can restrict an individual’s ability to pursue a claim against an international organisation before Kenyan courts, creating the need for an alternative administrative avenue through which complaints can be presented to the government.
Ochuodho had also challenged the legality of his suspension, arguing that the AU had acted contrary to its own rules.
Among his claims was that the ECOSOCC General Assembly, rather than the Chairperson of the AU Commission, had the authority to remove a member for misconduct. He further argued that he had not been subjected to a proper disciplinary process before his suspension.
The High Court did not determine the merits of those allegations against the AU because of the organisation’s immunity. Justice Aburili noted that Kenya’s legal framework recognises obligations arising from ratified international treaties while also recognising immunity granted to certain international organisations under applicable agreements.
The court relied on established jurisprudence holding that such immunity may prevent Kenyan courts from entertaining proceedings against protected international bodies. Ochuodho had written to the Kenyan authorities seeking intervention over what he described as unlawful activities within ECOSOCC. He was subsequently suspended on June 21, 2022.
The government officials named in the case did not file responses to the petition or make submissions before the court. The judge consequently found that their failure to act on the complaint amounted to a violation of Ochuodho’s right to fair administrative action and affected his ability to obtain an effective avenue for addressing his grievance.
However, the court declined to order his reinstatement because his ECOSOCC term had already expired in December 2022. The court also lacked the power to direct the AU to reinstate him because of the organisation’s immunity from proceedings before Kenyan courts. Instead, Justice Aburili issued a supervisory order directed at the Kenyan government, requiring it to address the institutional gap exposed by the case.
The government must therefore develop and put into operation a system through which Kenyans working for international and regional organisations can submit complaints, have them considered by the relevant authorities and receive a formal response.
