With Particular Reference To the Tononoka Steels Limited Vs The Eastern and Southern Africa Trade and Development Bank (PTA Bank) Case

This paper seeks to explain the meaning and scope of the concept of jurisdiction immunity and its application in the international community. A case study is used to give a conceptual and comparative analysis relating to this topic. A critique is also given on the extent to which this law has been applied, its relevance, the backlashes and finally, the conclusion.

Jurisdictional Immunity is a principle of International Law that concerns the question of the extent to which States, or their organs or State enterprises, can be sued in the civil courts of other States, and how far there can be execution on property of a foreign state.

Originally in International Law the theory prevailing was that of absolute immunity but this proved difficult to apply without consent from the foreign States. However, Restrictive Immunity theory is fundamentally being applied the world over as an aspect of International Law. Immunity in this case is to be granted only in the case of particular types of property, notably

To have a clear understanding of the nature of this dispute we must define the type of immunity granted to the PTA Bank. The immunity is that of exemption from suit and legal process as stated in the Privileges and Immunity Act cap. 179 of the Laws of Kenya. The United Nations Charter also states that the member countries should enjoy these privileges and immunities regardless of the member state they are in. Parliament in its wisdom or lack of it, is alleged to have granted the PTA Bank absolute immunity thereby depriving the High Court of Kenya jurisdiction to hear the case.

Granted, this point of view cannot be disputed because Tononoka indeed consented to the terms and conditions spelt out in the agreement without any due influence and going against it would be tantamount to violation of obligation of international law. Nevertheless, giving a blanket immunity without due regard to the activities of the Bank is also questionable, because in effect what we are saying is that Tononoka could have borrowed money, refuse to pay the bank and object to being arraigned in the Municipal Courts on the same grounds that this court did not have jurisdiction over the matter - this would be an absurd situation. Moreover the law should be reciprocal and fair to both parties. In a situation of contracts of pure private nature especially commercial contracts, the concept of Jurisdiction Immunity should not be used to the detriment of a citizen.

The focus here is on the Constitutional question on whether the High Court of Kenya can manifest its powers and adjudicate over a case of International Law character or whether one can oust the jurisdiction of the High Court of a sovereign state and the other question is on what kind of immunity is in reference? While on the other hand, the issue of consent by both parties to have the agreement signed under the Laws of England, and the applicable law in this case is also central.

Some topics in this essay:
PTA Bank, International Law, Laws England, Commercial Act, Law Country, Antiquity Greek, international law, Conclusion Object, Municipal Courts, Kenya Tononoka, PTA Bank’s, pta bank, absolute immunity, southern africa, eastern southern africa, tononoka steels, privileges immunities, eastern southern, laws england, immunity granted, restrictive immunity, granted pta bank, 1998 †judgments, africa trade development, southern africa trade,