REPUBLIC OF KENYA

THE HIGH COURT OF KENYA AT AFRICA CITY

(MILIMANI COMMERCIAL COURTS)
CIVIL SUIT NO. xxxx OF 2000

KENNETH PLAINTIFF/RESPONDENT

VERSUS

EASTERN AND SOUTHERN

OAUN TRADE AND
BANK DEFENDANT/APPLICANT

NOTICE OF MOTION
(Under Order L Rules 1 and 3 of the Civil Procedure Rules Sections 5, and
3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Section 9 of the
Privileges and Immunities Act Cap. 179 of the Laws of Kenya and all other
enabling provisions of the law).

TAKE NOTICE that this Honourable Court will be moved on the

……………. day of ……………………. 2002 at 9 O’clock in the forenoon or
so soon thereafter so as Counsel for the Defendant may be heard on an
application FOR ORDERS:

1. THAT this Honourable Court has no jurisdiction to try this suit.

2. THAT the Plaintiff's suit herein be and is hereby dismissed with costs to
the Defendant.

3. THAT the costs of this Application be paid by the Plaintiff.

WHICH APPLICATION is based on the grounds that:

1 The Defendant is an Organization and/or institution established by the
Common Market for Eastern and Southern Oau Treaty (The Comesa
Treaty).

2 As an Organ of the Comesa Treaty, this Court has no jurisdiction to try

this suit against the Defendant.

3 By virtue section 9 of the Privileges and Immunities Act Cap. 179 of the
Laws of Kenya read together with Legal Notice No. 265 of 1991, the
Defendant is not subject to the jurisdiction of this Honourable Court.

4 Pursuant to Article 42 and 43 of the Defendant’s Charter, the Defendant

enjoys immunity from every form of legal process except in cases
arising out of the exercise of its borrowing powers when it may be sued
only in a court of Competent jurisdiction in the territory of a Member
State.

5 The Defendant has not waived the immunities and privileges granted to
it under the law.

AND WHICH APPLICATION is further supported by the annexed affidavit

of MMMMM and on such other grounds as will be adduced at the hearing
hereof.

DATED at Africa city this day of 2002

PURITY & COMPANY

ADVOCATES FOR THE DEFENDANT/APPLICANT
DRAWN AND FILED BY:-
Purity & Company
Advocates for the Defendant/Applicant
Dre ,
Dreetum
P.O Box MMMMM
Africa city.

TO BE SERVED UPON
HHHHH
Africa city.
 REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT AFRICA CITY

MILIMANI COMMERCIAL COURTS

CIVIL SUIT NO. xxxx OF 2000

KENNETH PLAINTIFF/RESPONDENT

VERSUS

EASTERN AND SOUTHERN

OAUN TRADE AND
BANK DEFENDANT/APPLICANT

AFFIDAVIT

I MMMMM of Post Office Box Number MMMMM Africa city, hereby make
oath and state as follows:

1. THAT I am the Senior Legal Officer, Corporate affairs with the

Defendant/Applicant (hereinafter referred to as "the Applicant") and I
have full knowledge and information concerning this suit hence
competent to swear this affidavit.

2. THAT the Plaintiff/Respondent (hereinafter referred to as "the

Respondent") filed this suit against the Defendant/Applicant on 29 th
December 2000, claiming, inter alia, the following:-

(a) A declaration that the letter by the Acting Director, Personnel and
Administration dated 10th February 2000 terminating the
Respondent's services with the Applicant is a violation and in
contempt of the Order of the Comesa Court of Justice made on
 the 31st January, 2000 and the purported termination is
consequently null and void.

(b) A declaration that the letter by the Acting Director, Personnel and
Administration dated 10th February, 2000 terminating the
Respondent's services with the Applicant is a violation of the
Respondent's rights under the Applicant's Bank Staff Rules,
Regulations and Conditions of Service.

(c) A mandatory injunction to compel the Applicant to reserve all the

actions and undertakings by the Acting Director, Personnel and
Administration dated 10th February, 2000 terminating the
Respondent's services to the Applicant in violation and in
contempt of the Order of the Comesa Court of Justice Order
made on the 31st January, 2000.

(d) Rescission of the decision to terminate the Respondent from

employment.

(e) Damages on the footing of the aggravated damages.

(f) Costs of the suit.

A copy of the Plaint is attached herewith and marked "PM1"

3. THAT subsequent thereto, the Applicant through its Advocates on

record M/s Purity & Company, filed its Statement of Defence on 16 th
February, 2001 and pleaded, inter alia, at paragraph 2 thereof that this
Honourable Court lacks the jurisdiction to try this matter. A copy of the
Statement of Defence is attached herewith and marked "PM2".
4. THAT the contract of employment between the Applicant and the
Respondent and which is the subject matter of these proceedings is
governed by the Staff Manual of the Applicant which Manual clearly
stipulates the Bank Staff Rules, Regulations and Conditions of Service.
Attached hereto and marked "PM3" is a true copy of the said Staff
Manual.

5. THAT the said Manual at pages 112 to 121 thereof lays down the
procedures and avenues for dispute resolution between the Applicant
and its staff in case of employment disputes. The procedure is outlined
as follows:-

a) A staff member who considers that he has been treated

inconsistently with regard to the provisions of the staff Rules and
regulations of the Bank, or with the terms of his contract of
employment, may request the Director of Personnel and
Administration, in writing, that the issue in question be reviewed.

b) In the case of a staff member whose duty station is the head

office, the Director of Personnel and Administration, or an
official of his department designated by him, shall discuss the
issue with the staff, who may request the assistance of a
representative of the Staff Council, or another staff member of
the Bank.

c) In the case of a staff member at a duty station other than the head
office, the staff member may request that the issue be discussed
in his absence with representative of the Staff Council or other
member of the Bank who is based at the head office.
 d) The Director of Personnel and Administration or, as appropriate,
the official designated by him, shall, within ten (10) working
days of receipt of the request of the review, inform the staff
member concerned of the action which it is proposed to take
thereon.

e) Except as otherwise specified therein, an issue may be submitted

for review either orally or in writing.

f) A staff member shall suffer no prejudice by reason of the

submission of any issue of review.

g) A staff member who remains aggrieved after undergoing the

administrative review procedures above, may lodge a formal
grievance and seek redress. A grievance must be formally
submitted within thirty (30) working days from the date the staff
member is notified of the decision giving rise to the grievance.

6. THAT in the course of my duty it has come to my knowledge that upon

the Respondent’s dismissal on 10th February 2000, the Respondent
conveniently neglected and/or refused to invoke any such procedures so
as to have the issues raised in this suit considered and addressed in
accordance with the internal procedure as laid down in the said Staff
Manual.

7. THAT the plaintiff has effectively not exhausted the available avenues
of dispute resolution under the established administrative tribunals
which have exclusive authority to deal with the Applicant's grievances
pursuant to the Staff Manual aforesaid.
8. THAT I am further aware that the Applicant is a Bank established by
the Charter of the Eastern and Southern Oaun Trade and Bank
(hereinafter referred to as "the Charter") pursuant to Chapter Nine of the
Treaty for the Establishment of the Preferential Trade Area for Eastern
and Southern Oaun States. Attached herewith and marked "PM4" is a
true copy of the Charter.

9. THAT in order to enable the Bank achieve its objectives and perform
the functions with which it is entrusted, the Charter under Articles 42
and 43 thereof grants the Bank certain immunities and exemptions
which shall be accorded to the Bank in the territory of each member
state. With reference to judicial proceeding, status, capacity, immunities
and privileges, Articles 42 and 43 of the Applicant’s said Charter
provides as follows:-

a) The Applicant Bank shall enjoy immunity from every form of

legal process except in cases arising out of the exercise of its
borrowing powers when it may be sued only in a court of
competent jurisdiction in the territory of a Member State in which
the Bank has its principal office or appointed agent for the
purposes of accepting service or notice of process.

b) The Applicant Bank, its property and assets shall enjoy immunity
from every form of legal process except insofar as in any
particular case it has, through its president, expressly waived the
immunity.

c) The president may waive the immunity to such extent and upon
such conditions as he may determine in cases where such waiver
would in his opinion further the interest of the Bank.
10. THAT I am further advised by the Applicant's Advocates aforesaid,
which advice I verily believe to be true, that under the provisions of the
Privileges and Immunities Act, the Minister for Foreign Affairs has the
power to order and declare an international or regional Organization to
which the Government of the Republic of Kenya and one or more
foreign sovereign powers, or the Government thereof are members, to
enjoy privileges and immunities provided for under the Act and more
particularly, immunity from every form of legal process save for the
exceptions stipulated therein.

11. THAT I am further advised by Purity and Company and verily believe
the advice to be true that the Applicant Bank being an Organization
established by Member States of the Preferential Trade Area for Eastern
and Southern Oaun States and further being an organization of which
the Government of Kenya and other foreign governments are members
is declared to be an Organization to which section 9 of the said Act
applies.

12. THAT I am further advised that the said section 9 of the Privileges and
Immunities Act provides that an organization that it applies to shall to
the extent specified in the order have the immunities and privileges set
out in Part 1 of the Fourth Schedule of the Act, and shall also have the
legal capacities of a body corporate.

13. THAT by Legal Notice No. 265 of 1991 dated 20th May 1991, the then
Minister for Foreign Affairs and International Co operation made an
Order pursuant to section 9 of the said Act granting the Applicant Bank
Privileges and Immunities under the Act aforesaid and more particularly
immunity from legal process except for commercial transactions.
 Attached hereto and marked "PM5" is a true copy of the said Legal
Notice.

14. THAT I have been further advised by the Applicant’s Advocates on

record , which advice I verily believe to be true that in cognizance of
International law and practice the Kenyan Courts do not ordinarily
entertain an action against certain privileged persons and/or institutions
unless the privilege is waived.

15. THAT to the best of my knowledge and understanding the applicant has
not waived the immunities and privileges granted to it under the Charter
and the Privileges and Immunities Act as read together with Legal
Notice no. 265 of 1991 aforesaid.

16. THAT in view of the foregoing, the immunity which the Applicant
seeks in this matter is fully justified and I am advised by the applicant's
Advocate on record which advise I verily believe to be true that this
Honourable Court lacks any jurisdiction to try this suit.

17. THAT the relationship herein between the Applicant and the
Respondent giving rise to the subject suit is not by any means a
commercial transaction and therefore the Municipal Courts of Kenya are
barred by the said Legal Notice and the law from entertaining this suit.

18. THAT I swear this Affidavit in support of the Applicant's Application

to have this suit dismissed for want of jurisdiction.

19. THAT what is deponed to hereinabove is true to the best of my

 knowledge save as to matters deponed to on information sources
whereof have been disclosed and matters deponed to on believe the
grounds whereupon have been given.

SWORN by the said MMMMM )

at Africa city this day of 2002 )
)
BEFORE ME )
)
)
COMMISSIONER FOR OATHS )

DRAWN & FILED BY:-

Purity & Company

Advocates,
Dre ,
Dreetum ,
P.O Box MMMMM,
Africa city.