By Benadeta Mwaura - Reporter
Kenya, 16 June 2026 - The Embassy of Sweden in Nairobi has moved to the Supreme Court seeking clarity on whether foreign diplomatic missions can be sued by locally hired employees, in a case that could redefine the limits of diplomatic immunity in Kenya.
The dispute stems from claims filed by former embassy employees Lucy Muingo Kusewa and Renalda Mboje Mjomba, who are seeking pension and other terminal benefits before the Employment and Labour Relations Court (ELRC).
The Swedish mission has consistently argued 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.
According to court records, the Court of Appeal certified that the embassy's intended appeal raises a matter of general public importance, paving the way for the case to be heard by the Supreme Court.
At the heart of the dispute is whether employment contracts entered into by foreign embassies constitute part of the ordinary functions of a diplomatic mission or amount to commercial activities that can remove immunity protections.
In their ruling, Justices Francis Tuiyott, Ahmed Issack Hassan and Benjamin Ongaya said the issue warrants determination by the country's highest court.
"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 legal battle dates back to 2015 when the two former employees filed employment-related claims against the embassy.
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 later upheld by the Court of Appeal in 2020.
In its latest application, the embassy argued that the dispute extends beyond the interests of the parties involved and raises broader questions about Kenya's obligations under international law, the interpretation of diplomatic immunity and the treatment of foreign missions operating in the country.
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The mission further contended that Kenyan courts have issued differing decisions on whether employment contracts entered into by foreign states and diplomatic missions amount to commercial transactions capable of displacing immunity protections.
The appellate judges agreed that the matter remains unsettled in Kenyan jurisprudence.
They noted that while the Supreme Court endorsed the doctrine of restrictive immunity in the 2017 case involving former diplomat Karen Njeri Kandie, it did not specifically determine whether employment contracts involving foreign states qualify as commercial activities.
Under the doctrine of restrictive immunity, foreign states are generally protected from legal action for sovereign or governmental functions but may be sued over commercial or private activities.
The Court of Appeal found that the matter carries significant public interest implications because it affects diplomatic missions, foreign governments operating in Kenya and thousands of locally hired employees seeking legal redress.
However, the judges declined the embassy's request to halt the ongoing proceedings before the ELRC, ruling that the appellate court lacked jurisdiction to grant such orders under the circumstances.
The case comes amid growing global debate over the scope of sovereign immunity in employment disputes involving locally recruited staff working for foreign governments and diplomatic missions.
The Supreme Court's eventual decision could establish a landmark precedent on the balance between diplomatic privileges and the employment rights of Kenyan workers engaged by foreign missions.
Swedish Embassy Seeks Supreme Court Ruling on Diplomatic Immunity in Staff Disputes
Under restrictive immunity, foreign states are protected from legal action for sovereign or governmental functions but may be sued over commercial or private activities.