Ministry of Defence (United Kingdom) v Ndegwa

• Jurisdiction: Kenya
• Date: 17 March 1983
• Court: Court of Appeal (Kenya)

Kenya, Court of Appeal.

(Law and Hancox JJA, Chesoni Ag JA)

Ministry of Defence of the Government of the United Kingdom

and

Joel Ndegwa

State immunity Jurisdictional immunity Restrictive doctrine Applicability in Kenya Action for damages against Claims Commission of Ministry of Defence of a foreign State Whether Commission a separate legal entity or part of government Whether entitled to State immunity The law of Kenya

Summary: The facts:The respondent brought an action for damages against a British soldier. The United Kingdom Ministry of Defence Claims Commission (the appellant) was sued as the employer of the soldier and was alleged to be vicariously liable for his acts. The appellant applied for an order striking out the proceedings against it.

The appellant maintained that it was part of the Ministry of Defence of the United Kingdom and had no legal entity separate from the Government of the United Kingdom. The appellant therefore submitted that it was entitled to sovereign immunity in the absence of a waiver of immunity or consent to submit to the jurisdiction of the Kenyan courts.

The respondent maintained that the suit was not brought against the United Kingdom Government, but against a separate entity established to settle claims such as that in the instant case. Accordingly, he maintained, foreign State immunity was inapplicable.

In the High Court, the application was dismissed on the ground that the suit was against the Ministry of Defence Claims Commission and not the Ministry of Defence of the United Kingdom Government. The appellant appealed.

Held:The appeal was allowed and the second defendant was struck out from the proceedings.

(1) The restrictive theory of State immunity applied. By that principle, the Kenyan courts were precluded from entertaining a suit against a foreign State relating to an act done in its governmental capacity in the absence of a waiver of immunity or consent to submit to jurisdiction. However, where an action related to an ordinary commercial transaction, there was no entitlement to immunity.

(2) The appellant had submitted, and the respondent had failed to rebut, evidence that the appellant was part of, and had no separate legal entity from, the Ministry of Defence of the United Kingdom Government. In addition, the appellant could only be held vicariously liable for the acts of the soldier if it was established that the acts were done in the course of his employment. In the instant case, the appellant had been acting in its governmental capacity and was immune. The appellant had not waived its immunity and had not consented to submit to the jurisdiction of the Kenyan courts.

The following is the text of the judgments delivered in the Court of Appeal:

Chesoni Ag JA: This is an appeal from a ruling of the High Court (O'kubasu J) at Nyeri refusing to strike out the proceedings against the second defendant, the Ministry of Defence Claims Commission (UK).

The plaintiff filed a suit against the defendants praying for the judgment against them jointly and severally for special and general damages for negligence arising out of a motor accident involving a motor vehicle driven by the first defendant Stuart Brown and the motor vehicle KPA 169 which the plaintiff was driving at the material time. The second defendant entered appearance under protest and subsequently filed an application in the High Court under Ord 6, r 13 of the Civil Procedure Rules and the inherent powers of the court seeking an order that the proceedings against it (the second defendant) be struck out. That application was dismissed with costs and the second defendant has appealed to this court.

The ground on which the application was made is that the Government of the United Kingdom of Great Britain and Northern Ireland as a foreign sovereign state had not consented to be sued in the Kenyan court and was entitled to immunity. Colonel Adrian Neville Prestige, the Defence Adviser in the British High Commission in Nairobi swore an affidavit in support of the application. He deponed that the first defendant was at all material times a member of the British Army serving in the 1st Battalion Scots Guards. He also stated in his affidavit that the second defendant, the Ministry of Defence of the Government of the United Kingdom of Great Britain and Northern Ireland had no legal entity separate from that government. There appears to have been no dispute to the fact that the Ministry of Defence Claims Commission (UK) is a department within the Ministry of Defence of the Government of the United Kingdom of Great Britain and Northern Ireland. Indeed there was no replying affidavit filed by the respondent, to contradict whatever Colonel Prestige said in his affidavit. It is for observation that although the plaintiff states in para. 2 of the plaint that the first defendant was at all material times the agent and/or servant of the second defendant, his counsel told the court in reply to Mr Mahan's submission that he (presumably first defendant) was Defence Ministry employee overseas, so by agent and/or servant of the second...