BARKER MCCORMAC (PVT) LTD v GOVERNMENT OF KENYA 1983 (1) ZLR 137 (H)

Flynote

Constitutional law — sovereign immunity — restrictive as opposed to absolute doctrines — distinction between acts jure imperii and acts jure gestionis - act of State — recognition by Government that a building is the embassy of another sovereign State — actions against sovereign States — whether proper for court mero motu to raise question of immunity even if State itself does not.

Headnote

The applicant company in 1976 entered into a lease, lasting 5 years, giving it the tenancy of part of a building in Harare, which it used as its business premises. The lease also provided an option to renew the lease for a further period of 3 years, after 31 March 1981. Towards the end of 1980, however, the then owners of the building sold it to the Government of Kenya, which wanted to use it as its high Commission in Harare. The Government made plain from the beginning its desire to obtain the use of the whole of the building, its attitude being mainly influenced by concern for the security of the High Commission. However, it did allow the company to go on occupying its part of the building after 31 March 1981 but by September 1982 the company found itself constrained to move to other, more expensive premises. It sought to claim from the Kenyan Government the difference between what it now had to pay and what it would have paid had it continued to occupy the other premises.

An attempt was made by the Deputy Sherriff to serve a summons but he was refused access to the High Commission. The company accordingly sought directions, through the Chamber Book, as to how to effect service. McNALLY J who considered the Chamber Book application, set the matter down for argument, giving his view that a sovereign State could not be sued for the type of relief claimed.

When the matter was heard, counsel for the company argued that the court should not mero motu raise the question of immunity. It should have been raised, if at all, as a defence. It was also argued that in any case States do not enjoy absolute immunity, but a restricted one, which pertains to acts jure imperii as opposed to acts jure gestionis, such as commercial transaction.

Held, that it would have been wrong for the court to have adopted the supine attitude that it should not mere motu raise the question of sovereign immunity. A proposal to sue a sovereign State in the municipal courts of another State is a very serious action, justifying action mero motu by the Court.

Held, further, that the acts of a domestic Government in the matter of foreign affairs are acts of state which cannot be challenged in its municipal courts. The recognition of premises as the embassy of another State is such an act of State.

Held, further, that assuming that the restrictive doctrine forms part of our law, on the facts it was clear that the purchase of the premises by the Kenyan Government was an act jure imperil, the motive for the purchase being the setting up of its High Commission. The matter of the company's occupation was incidental to this purpose; there was no desire to enter into commercial dealings with the company.