Justice Bahati Mwamuye prohibited the Foundation alongside its officials including directors from enjoying any privileges and immunities under the Privileges and Immunities Act.
The High Court of Kenya on Monday, November 25 issued conservatory orders suspending immunity and privileges granted to the Bill and Melinda Gates Foundation.
In the order, Justice Bahati Mwamuye prohibited the Foundation alongside its officials including directors from enjoying any privileges and immunities under the Privileges and Immunities Act.
“Pending the inter partes hearing and determination of the Application dated 22/11/2024, a conservatory order be and is hereby issued suspending the Privileges and Immunities (Bill and Melinda Gates Foundation) Order, 2024, given and notified as Legal Notice No. 157 made on 19/09/2024 under the hand of the Cabinet Secretary for Foreign and Diaspora Affairs, and published in the Special Issue of the Kenya Gazette Supplement No. 181 dated 04/10/2024 at 2941,” the verdict read in part.
It added, “Pending the inter partes hearing and determination of the Application dated 22/11/2024, a conservatory order be and is hereby issued prohibiting the 1st Respondent and its Directors, Officers, Staff, and Agents acting under its authority from enjoying or continuing to enjoy any privileges and immunities under the Privileges and Immunities Act [Chapter 179 of the Laws of Kenya] or the Cooperation Agreement between the 1st Respondent and the Government of the Republic of Kenya referred to in Paragraph 2 of the impugned Order.”
The Milimani Law Courts in Nairobi. /FILE
The matter will be mentioned on February 5, 2025, to confirm compliance and to take a priority hearing date for the highlighting of written submissions with respect to the Application or the Petition.
Justice Mwamuye warned that failure to heed the court orders will attract legal consequences. “Take notice that any disobedience or non-observance of the order of the court served herewith will result in penal consequences to you and any other person(s) disobeying and not observing the same,” he warned.
This ruling comes after the President of the Law Society of Kenya moved to court on November 11 seeking orders to have privileges granted to the Bill and Melinda Gates Foundation be recalled.
Pending the conclusion of the case, the Court directed the petitioner to serve the application, petition, and the court order on the respondents as well as interested parties by close of business on November 26, and file an Affidavit of Service in that regard by close of business on November 27.
In mid-November, the Kenyan government through Prime Cabinet Secretary Musalia Mudavadi explained the privileges and immunities extended to The Gates Foundation, formerly known as The Bill & Melinda Gates Foundation, hours after it was granted the special status through a legal notice number 157 of October 4, 2024.
This decision was made public under the Privileges and Immunities Act through a gazetted legal notice by Mudavadi, also the Cabinet Secretary for Foreign and Diaspora Affairs and Acting Interior Cabinet Secretary.
Speaking during the official opening of The Gates Foundation, Nairobi Sub-Regional office on Friday, November 15, the PCS clarified that the privileges and immunities are meant to facilitate the seamless operation of international organizations.
He explained the Privileges and Immunities, saying that it is geared towards impactful programs in the country. Mudavadi revealed that the foundation met legal requirements and its Host Country Agreement and that the Cabinet had approved the associated privileges.
“We take the concerns of our citizens seriously. I wish to clarify with utmost respect the rationale behind our decision. Diplomatic privileges and immunities are tools, not trophies. They are meant to facilitate the seamless operation of organizations that advance public good, much like the foundational principles of the Vienna Convention,” said Mudavadi.
Further, he maintained that there were various safeguards in place to ensure that the privileges and immunities were not abused. “These privileges are not a blank cheque but a carefully calibrated mechanism to enable organizations like the Gates Foundation to deliver impactful programs without bureaucratic hindrance,” he added.
By streamlining operations for development partners, the PCS affirmed that the government ensures that aid and innovation reach those in need when they need it most, adding that Kenya is vigilant in balancing its sovereignty with the benefits of global cooperation.
He said every Host Country Agreement is negotiated with due diligence, as outlined in the legal framework, noting that each partner must demonstrate their alignment with Kenya’s development priorities and their potential to deliver measurable benefits.
PCS Musalia Mudavadi during the official opening of The Gates Foundation, Nairobi Sub-Regional office. /MUSALIA MUDAVADI