Kenya must set up an effective system to receive and process complaints from citizens serving in international organisations that enjoy immunity from legal proceedings in the country, the High Court has ruled.

Justice Roselyne Aburili issued the order in a case filed by former African Union Economic, Social and Cultural Council (ECOSOCC) member Shem Odongo Ochuodho, who challenged Kenya’s handling of his complaint after his suspension from the continental body in 2022.

The judge said such a mechanism was necessary because Kenyans working in some international organisations cannot ordinarily sue them in Kenyan courts.

It said the State could not simply stand by when the rights of its citizens were at stake.
“Where Kenya as a country does not take action, it violates the rights of Kenyans,” the court said.
Mr Ochuodho was suspended in June 2022 alongside six other members of ECOSOCC for what the AU said was a breach of its Code of Ethics and Conduct.
The alleged breach included the illegal convening of the General Assembly, destabilisation of ECOSOCC and improper behaviour, according to the AU's press statement dated June 28, 2022.
The AU had accused the suspended members of misconduct and breaches of its legal norms. It said an investigation by its Office of Internal Oversight had found wrongdoing, including the illegal convening of an ECOSOCC General Assembly and conduct that destabilised the organ.
Mr Ochuodho disputed the allegations and the process used to suspend him. He argued that the AU Commission chairperson did not have the power to sanction elected ECOSOCC members and that the disciplinary procedures provided for under the council's rules had not been followed.
He also alleged that he and other members had raised concerns over the management of the ECOSOCC Secretariat, including alleged corruption, misappropriation of funds and resistance to reforms.
ECOSOCC is an advisory organ composed of different social and professional groups from AU member states. Its purpose is to provide an opportunity for African civil society organisations (CSOs) to play an active role in contributing to the AU’s principles, policies and programmes.
He sued the African Union Commission and its then chairperson, Moussa Faki, alongside Kenyan government officials, including the Attorney-General, the Ministry of Foreign Affairs, Foreign Affairs officials and Kenya’s ambassador to the AU, alleging violations of his rights and freedoms.
Other respondents included the Principal Secretary in the State Department for Foreign Affairs and the ECOSOCC Secretariat.
Mr Ochuodho complained that Kenyan authorities had failed to act after he sought their intervention over his suspension or to make diplomatic representations on his behalf. He also sought action to secure his reinstatement, as well as steps by the Attorney-General to explore available international legal mechanisms.
Justice Aburili found that the respondents breached his constitutional right to fair administrative action by failing to respond to his complaint.
Mr Ochuodho had written to the Foreign Affairs authorities seeking action, but received no response. The judge noted that there was still no response even after the authorities were served with his court petition and hearing notice.
“In the view of this court, the petitioner's right to fair administrative action was violated,” she said.
The court consequently granted an order compelling the senior government officials responsible for foreign affairs and Kenya's representation to the African Union to consider Mr Ochuodho's complaint.
The court also issued a supervisory order recommending the establishment of effective mechanisms to receive and process complaints from Kenyan citizens against international organisations operating within a framework to which Kenya is a party.
The order goes beyond Mr Ochuodho's individual dispute and places a broader responsibility on the Kenyan authorities to provide a channel through which citizens can seek help when disputes with immune international organisations arise.

The judgment came after a separate procedural ruling dealt with the question of immunity and jurisdiction.

In that earlier ruling, the court struck out the African Union Commission, ECOSOCC Standing Committee and ECOSOCC Secretariat, among other immune parties, from the proceedings. The immunity meant the Kenyan court could not directly determine claims against those international bodies.

The ruling, however, left the claims concerning the conduct of Kenyan State officials alive.

While the court could not directly order an immune international organisation to answer Ochuodho's claims, it could examine whether Kenyan officials had discharged their constitutional and statutory duties after receiving the petitioner's complaint.

Justice Aburili found that they had not. She relied on the constitutional right to fair administrative action and the Fair Administrative Action Act in reaching that finding.