Diplomatic immunity defence in Kenya's maintenance case

The tragic story of young Harry Dunn, knocked over and killed last year allegedly by the wife of a member of the US diplomatic corps in the UK, was a reminder of the conundrums that can sometimes be caused by diplomatic immunity. She left the UK after the accident and the US government has refused her return, citing immunity. Now a poignant new case is being decided in Kenya, a case that raises just as complex a conflict between rights and immunity. It concerns a senior diplomat from Sierra Leone, stationed in Kenya. A woman, claiming to be a former girlfriend of his, has gone to court asking that he be ordered to pay maintenance for a child born of their relationship. But despite the court’s order he has refused to do so, citing the Vienna Convention to justify his inaction. As the case winds its way through many hearings, the sum he owes in maintenance is mounting steeply. And the high court is unimpressed. 

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Quite properly, given that a child is involved, the two parties in this case aren’t identified. The judgment refers to them simply as AKK – the putative father – and SMM, the mother.

He is a citizen of Sierra Leone, working in Kenya. Along with his name, key information about him has been redacted, but it is clear that he works at an embassy where he holds a top position and is described as a ‘minister’. Accredited by Kenya as a ‘diplomatic agent’, he obviously believes that the Vienna Convention applies to him. In other words, because of his accreditation, he has nothing to fear from any court in Kenya.

In August 2017 SMM approached the courts with her complaint. She said that a child had been born of her relationship with AKK in April 2016. He had not maintained the child. She disclosed her income and his, and asked that he be ordered to pay Kshs 98 000 monthly for the child. She also told the court that she was willing that a DNA test be conducted to settle the question of whether AKK was the father.

The man’s initial response was to deny that ‘he was in any relationship’ with SMM. He also denied that he had fathered the child and thus disputed that he needed to pay maintenance. He also tried to blow the case out of the water right at the start, with a preliminary objection to the case going ahead, based on the Vienna Convention on the Law of Treaties. (This is a reference to the convention that deals with diplomatic relations, the inviolability of diplomatic offices and the immunity of diplomatic agents from the criminal, civil and administrative jurisdiction of the host state.)

The trial court dismissed AKK’s objection and ordered him to pay interim monthly maintenance of Kshs 20 000, pending a DNA test.

AKK has neither paid the money nor submitted to a DNA test. And since then he has challenged every move made by SMM to take the matter forward. Eventually she went back to court to ask for an order that his property should be attached to fund the Kshs 640 000 which was the balance due as at October. Again, AKK quoted the Vienna Convention and said he was immune from action to attach his property. And again, the court found against him.

This led eventually to full argument from both sides before Judge Aggrey Muchelule and he has now given his decision.

Summing up the position of AKK, the judge said that AKK wanted to stop ‘all proceedings relating to him … over the child in the trial court’ until the appeal was heard and finalised.

Judge Muchelule said the dispute between the two people related to an under-age child. The constitution of Kenya and the law, ‘commanded’ the court that in all actions and cases involving children, ‘the best interests of the children shall be the paramount consideration’.

In this case, the child needed maintenance of both parents. The mother was doing her part. AKK denied being the father. Asked to undergo a DNA test to confirm paternity, he had refused since the case started. He had been asked by the court to make a contribution towards the child’s maintenance. He did not appeal that decision. When he applied for review and for judicial review, both were turned down. ‘He has not paid a cent. It is evidence that the child’s right to maintenance is being compromised by [his] refusal to pay the ordered amount.’

‘A litigant who refuses to obey a valid court order is not deserving of the exercise of the court’s discretion in his favour,’ said the judge. It might have been different if AKK had offered to deposit the amount he now owed, ‘or even a reasonable part of it’, into the court pending the hearing and determination of the appeal.

‘Better still, he should have paid the amount, or part of it, towards the upkeep of the child, now that he is not seriously contesting paternity.’

An earlier court decision had held that, particularly where paternity was not in dispute, suspension of a maintenance order might not be in the best interests of the child concerned. This was such a case, said Judge Muchelule. ‘I am not persuaded that it is in the best interests of the child to allow the application to stay either the proceedings or the application for execution before the trial court. I dismiss the application with costs.’

Given this firm decision, the story could take several turns. Will AKK be recalled to Sierra Leone to avoid any further embarrassment or problem with the legal authorities in Kenya? Will his property be attached before the supreme court has the opportunity to hear his appeal on immunity? Will Sierra Leone step in to protest at the action being contemplated against their properly-accredited diplomat? Will his appeal be heard as a matter of urgency, and will the outcome change anything? Certainly, as far as this story is concerned, 2021 will be an interesting year.

* A Matter of Justice, Legalbrief, 8 December 2020