The High Court on Monday issued conservatory orders suspending immunity and privileges granted to Bill and Melinda Gates Foundation under the Privileges and Immunities Act in a Petition filed by the Law Society of Kenya (LSK).
The government, through Legal Notice No. 157, Kenya Gazette Supplement No. 181, had granted Gates’ foundation special privileges recognised as a charitable trust with special rights in Kenya.
The privileges allowed the Foundation to engage in contracts, legal actions, and property transactions within the country as well as legal immunity.
“Pending the inter parties 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,” read the High Court's verdict in part.
Justice Bahati Mwamuye, in his ruling, prohibited the Foundation 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.
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.
The ruling by the High Court 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 a gazette notice on October 23, Prime CS Musalia Mudavadi stated that the Foundation had been granted immunity in all its operations within the country leaving Kenyans with raised eyebrows on the implications of the move.
The Foundation was granted privileges similar to those of diplomatic officials, including tax exemptions and immunity from legal actions related to their official duties. Mudavadi argued that the Gates Foundation is a charitable trust fighting poverty, disease, and inequality in over 140 countries globally, it qualified it to be a beneficiary of Section 11 of the Privileges and Immunities Act.
The Gates Foundation on October 27 clarified the details regarding the Government of Kenya granting all its officials immunity and protection.
In a statement through its Global Communication’s Deputy Director in Africa Buhle Makamanzi, the Foundation stated that the immunity agreement was within the confines of Kenya’s Privileges and Immunities Act and is like similar ones granted to other foundations.
