The government has been asked to provide evidence that it has withdrawn the diplomatic privileges granted to The Bill and Melinda Gates Foundation before a constitutional petition challenging the privileges can be terminated.

High Court Judge Bahati Mwamuye has given the government up to April 29 to avail the evidence, stating 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,” Mr Jusutice Mwamuye stated on Tuesday.

This move follows an announcement by The Gates Foundation that it has withdrawn from its Host Country Agreement with Kenya, saying that the legal cases have drawn attention away from its philanthropic mission.

Through a special Kenya Gazette Supplement dated October 4, 2024, the privileges to the Gates Foundation 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.

The Judge 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of the Host Party Agreement and a confirmation that the Legal Notice conferring diplomatic status has been either withdrawn, cancelled, or rendered without legal consequence.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 further 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.

Mr Justice Mwamuye asked the government 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“If the gazettement has not been formally withdrawn, a statement under oath from the 2nd Respondent must be filed to affirm that the Legal Notice is now moot and no longer legally applies,” the judge ordered.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 case will be mentioned on May 26.

In November 2022, The Bill & Melinda Gates Foundation announced plans to set up a regional office in Nairobi, aiming to expand and enhance ts work in healthcare, agriculture and ICT in Kenya.

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