The Somalia government has failed to convince the High Court to lift an order attaching its bank accounts, over a debt of Sh25.6 million owed to a Kenya contractor.
Justice Alfred Mabeya on Thursday, September 12, dismissed the application by the Attorney General of Somalia seeking to lift the order granted to Kingsley Construction Limited last year, attaching its bank accounts at Premier Bank Limited.
The contractor successfully sued the Government of Somalia in 2019 for breaching a contract for the renovation of its embassy in Nairobi.
Somalia challenged the decision arguing that the decision was illegal as the government enjoys diplomatic immunity.
Justice Mabeya said dismissed the application stating that Somalia cannot invoke sovereign immunity to avoid legal accountability for its commercial dealings.
The judge said it was not in dispute that the transaction that led to the filing of the case was a commercial contract, as the contractor carried out repair works to the embassy in Nairobi.
“In this context, the Court finds that the doctrine of sovereign immunity does not extend to commercial activities. The principle means that when a state or its entities engage in commercial transactions, they forfeit the shield of immunity typically granted to sovereign acts,” said the judge.
The court said under Article 31 of the Vienna Convention on Diplomatic Relations (1961), diplomatic agents are granted immunity from the civil and administrative jurisdiction of the host state.
However, there are specific exceptions to this immunity and one key exception is for commercial activities that are conducted outside the scope of the diplomat's official functions.
In an affidavit, Mr Jabril Ibrahim Abdulle maintained that Kenya and the Federal Republic of Somalia were sovereign equals at International Law and in the circumstances, they embassy and its officials enjoy immunity before the Kenyan courts.
He said the court was deceived into enforcing execution against bank accounts of the embassy of a foreign sovereign state.
Mr Abdulle said the bank accounts attached contain funds from application and processing fees paid by individuals seeking passports and visas at the embassy.
In the dispute, Kingsley sued the embassy in 2019 over a 2016 contract to renovate its embassy in Nairobi.
The firm said the embassy breached the agreement by failing to allow its staff access the project site on Jabavu Likoni Lane, off Dennis Pritt Road and failing to pay outstanding sum of Sh23.4 million.
