Barker McCormac Ltd v Government of Kenya
| Jurisdiction | Kenya |
| Date | 16 January 1985 |
| Court | High Court (Kenya) |
(Baron ACJ; Georges and Beck JJA)
(Samatta J)
State immunity Jurisdictional immunity Restrictive doctrine Applicability in Zimbabwe Sale of freehold land to foreign State subject to lease Lessee not permitted to exercise option to renew lease because State wished to use land for diplomatic premises Whether action by lessee falling within commercial activity exception to immunity Procedure Service of process When substituted service permissible The law of Zimbabwe
Summary: The facts:Barker McCormac Ltd entered into a lease for property in 1976. The provisions of the lease granted Barker McCormac an option to renew. The property was subsequently sold, subject to the lease, to the Government of Kenya (the Government) which intended to use it for its diplomatic mission in Zimbabwe. In 1982, Barker McCormac was not permitted to exercise its option to renew and was forced to vacate the property. Barker McCormac leased another property at a higher rental and sought to recover the difference in the cost of the rental.
An attempt was made to serve a summons and a declaration upon the Government but entry to the Government's premises was refused. Barker McCormac applied for an order of substituted service. The Government claimed that a substituted service could not be brought against a foreign State in an action of this kind on the grounds of sovereign immunity. Barker McCormac's action failed before the lower courts and it appealed to the Supreme Court.
Held (by the Supreme Court):The appeal was allowed. Substituted service was ordered.
(1) It was an established rule of international law that foreign sovereigns and foreign States had immunity from municipal courts. The modern doctrine of restrictive sovereign immunity, which accorded immunity for public acts or acta jure imperii, had superseded the traditional doctrine of absolute sovereign immunity as the prevailing norm of international law and the doctrine should be incorporated into municipal law (pp. 205).
(2) Under the restrictive doctrine, certain actions could be brought against a foreign State. Accordingly, a substituted service was permissible. In order to oust the jurisdiction of the municipal court, the foreign State would have to establish a plea of sovereign immunity on the ground that the action dealt with an event that fell within the sphere of public law or jure imperii. The jurisdiction of the municipal court would be barred if the nature of the claim was such that sovereign immunity was applicable (pp. 257).
In subsequent proceedings before the High Court, the Government of Kenya maintained that sovereign immunity precluded the municipal court from exercising jurisdiction. The Government claimed that the absolute doctrine of sovereign immunity was still applicable in Zimbabwe, and had not been superseded by the restrictive doctrine. Barker McCormac contended that the restrictive doctrine of sovereign immunity was now the prevalent rule in international law and had been held by the Supreme Court to form part of the law of Zimbabwe. Sovereign immunity was therefore only accorded for the acts of a State performed in its public or governmental capacity. The Government also submitted that the act in question was within the scope of acta jure imperii because of the intention to use the property as a High Commission. Barker McCormac also asserted that the facts of the case showed that the Government had submitted to the jurisdiction of the Court and had therefore waived any immunity it might have possessed.
Held (by the High Court):The plea of jurisdictional immunity was dismissed.
(1) The restrictive doctrine of sovereign immunity was applicable in Zimbabwe. It was the prevalent doctrine in international law and had been held to form part of the law of Zimbabwe by the Supreme Court (pp. 2932).
(2) The refusal to allow Barker McCormac to exercise its option was not a public act but a violation of a commercial agreement. The intention of the Government to use the property as diplomatic premises did not transform the nature of the act at issue into a sovereign act (pp. 326).
(3) It was not necessary to pursue the question of a waiver of immunity by the Government because no immunity existed in this case (p. 38).
The text of the judgment of the High Court commences at p. 27. The following is the text of the judgment of the Supreme Court, delivered by Georges JA:
The appellant in this matter seeks to claim damages against the Government of Kenya for wrongful and unlawful repudiation of a lease. The appellant asserts that, prior to the acquisition by the Government of Kenya in or about May or June 1980 of premises at 95 Park Lane, Harare, the premises were owned by a company which had leased a portion thereof to the appellant for a term of five years ending on 31 March 1981 with an option to renew for a period of three years at an increased rent. The appellant further asserts that it had duly exercised its option under the lease but that the Government of Kenya had refused to allow it to continue in occupation of the leased premises. The Government of Kenya used the premises as its High Commission in Zimbabwe and the appellant's occupation of part of these premises created what the Government of Kenya considered unacceptable security problems. The upshot was that the appellant claimed it was forced to move to other premises at a higher rental. It sought to claim from the Government of Kenya the difference over the period of the lease.
The Sheriff made attempts to serve the summons and declaration. He was not allowed on the premises at 95 Park Lane. A person identified as a Deputy Secretary declined at the gate to accept service and advised that an approach should be made to the Ministry of Foreign Affairs, Consular Division. Thereupon the appellant applied for substituted service under Order 6 Rule 46(1),* by affixing the summons and declaration to the gate of the premises. The application came before McNally J, who granted the appellant leave to set the matter down for argument though he was of the view that a foreign State could not be sued here for the relief claimed. Waddington J, who heard full argument, was of the same view and the application was accordingly dismissed. The Ministry of Foreign Affairs certified that the Government of Zimbabwe recognized the premises at 95 Park Lane as being the High Commission of the Government of Kenya, and that such recognition commenced on 24 June 1980.
It is, of course, undisputed that the Government of Kenya is a foreign sovereign government recognized by the Government of Zimbabwe. It can, as such, be immune from the jurisdiction of the Courts of Zimbabwe. The issue to be decided relates to the nature of this immunity. There is also the question as to whether a court in an application such as this can of its own accord raise this defence of immunity of a foreign sovereign government.
The major issue as to the nature of the doctrine of sovereign immunity is a question of international law. Although there appear to be no pronouncements on the matter in our Courts until now, there is no doubt that international law is part of the law of this country. In so far as the common law of Zimbabwe is Roman-Dutch there is support for the proposition in Nduli and Another v Minister of Justice and OthersINTL 1978 (1) SA 893 (A).[1] Rumpff CJ at 905 quoted with apparent approval from Hahlo and Khan South African Legal System and its Background at 113:
So far as English law is concerned the position was stated by Lord Atkin in Chung Chi Cheung v RUNK [1938] 4 All ER 786 at 790:
International law does accord to foreign sovereigns and the governments of foreign States immunity from the jurisdiction of municipal courts. Historically this immunity was absolute irrespective of the circumstances of the subject-matter. This doctrine is lucidly stated by Lord Atkin in Compania Naviera Vascongada v Steamship Cristina and OthersUNK [1938] 1 All ER 719 at 720:
The theory underlying this immunity was defined by Brett LJ in The Parlement BelgeELR [1880] 5 PD 197 at 214:
Each of these theoriesindependence, dignity and comitycan be shown to be unsatisfactory as a basis for immunity. In Rahimtoola v Nizan of Hyderabad and AnotherELR [1958] AC 379 at 418 Lord Denning pithily summarized the weakness of these theories:
Although the other Law Lords delivering speeches in that case made it clear that they were not to...
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