NAIROBI, Kenya, Apr 9 — The High Court has given the government until April 29 to provide conclusive evidence of the withdrawal of diplomatic privileges granted to the Bill and Melinda Gates Foundation, before a constitutional petition challenging the privileges can be terminated.
Justice Bahati Mwamuye, in a ruling delivered on Tuesday, stated that the court must be satisfied that the privileges and immunities granted to the Foundation under Legal Notice No. 157 of 2024 have either been formally revoked through a gazette notice or rendered legally irrelevant.
“The parties are in agreement that there has been a withdrawal of the Host Party Agreement by the 1st and 2nd Respondents,” Justice Mwamuye observed.
“However, for the court to allow the withdrawal of the Petition, it must be shown that the legal foundation for those privileges has been fully nullified or rendered moot.”
The privileges, which had been accorded to the Gates Foundation through a special Kenya Gazette Supplement dated October 4, 2024, became the subject of legal scrutiny in a case filed by the Law Society of Kenya (LSK) challenging the constitutional and legal basis of their issuance.
In his ruling, Justice Mwamuye outlined four critical conditions that must be met before the court can allow the petition’s withdrawal.
He said the Ministry of Foreign Affairs and the Attorney General must present proof of mutual withdrawal of the Host Party Agreement and a confirmation that the Legal Notice conferring diplomatic status has been either withdrawn, cancelled, or rendered without legal consequence.
The court aslo demanded an assurance that the said actions are sufficient to dispose of the entire petition, and justification that withdrawing the case serves the public interest.
Threshold
Justice Mwamuye gave the government 21 days to submit the relevant documents and proofs, including, if necessary, a sworn affidavit from the Ministry of Foreign Affairs explaining why the Legal Notice remains without legal effect even if not formally de-gazetted.
“If the gazettement has not been formally withdrawn, a statement under oath from the 2nd Respondent must be filed to affirm that the Legal Notice is now moot and no longer legally applies,” the judge ordered.
The judge also encouraged the parties to consider reaching a consent agreement by May 16, particularly on matters relating to costs and settlement terms, noting that this could expedite the resolution.
The court slotted a mention date on May 26 to confirm the status of the petition.