Peter Odhiambo v. Republic of Kenya
412 U.S. App. D.C. 201
| D.C. Cir. | 2014Background
- Odhiambo, a Kenyan bank auditor, provided information under Kenya’s Information Reward Scheme that identified undisclosed taxes and tax evasion.
- Kenya rewarded Odhiambo with initial and subsequent payments totaling a token sum, while Odhiambo claimed he was owed millions more.
- Kenyan officials allegedly exposed Odhiambo’s safety, leading to threats and his relocation to the United States as a refugee.
- Odhiambo sued Kenya in U.S. District Court (D.C.) for breach of contract seeking about $24.5 million.
- The District Court and the circuit analyzed FSIA immunity: waiver and commercial activity exceptions are exhaustive and may bar suit.
- The opinion centers on whether Kenya’s rewards program falls within FSIA’s commercial activity exceptions and whether a direct effect in the United States existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kenya waived immunity under FSIA 1605(a)(1). | Odhiambo argues implicit or refugee-related waiver. | Kenya did not explicitly or implicitly waive immunity. | Waiver not established; FSIA immunity bars suit. |
| Whether the commercial activity exception clause one applies. | Odhiambo’s claim is based on Kenya’s US-connected commercial activity. | Breaches in Kenya do not constitute US-based commercial activity with substantial US contact. | Clause one does not apply; activity not based on US-connected elements. |
| Whether clause three direct effect supports jurisdiction despite no US place of performance. | Odhiambo argues the breach caused a direct effect in the US. | The contract did not establish the US as the place of performance; effects were indirect. | No direct effect under clause three; FSIA immunity applies. |
Key Cases Cited
- Republic of Argentina v. Weltover, 504 U.S. 607 (U.S. 1992) (direct effect requires immediate consequence, not necessarily place of performance)
- Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83 (D.C. Cir. 2005) (no direct effect where entire transaction occurred outside the United States)
- Kirkham v. Société Air France, 429 F.3d 288 (D.C. Cir. 2005) (whether activity establishes essential claim elements; 'based upon' concept)
- Goodman Holdings v. Rafidain Bank, 26 F.3d 1143 (D.C. Cir. 1994) (whether activity is legally relevant to the claim’s elements)
- Cruise Connections Charter Mgmt. 1, LP v. Att’y Gen. of Can., 600 F.3d 661 (D.C. Cir. 2010) (direct effect can exist without a US place-of-performance clause)
- de Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013) (direct effect when contract contemplates US obligations or owners reside in US)
- Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511 (D.C. Cir. 1988) (mere meetings in the US do not establish substantial US contact for direct effect)