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Kenya Law / Blog / Case Summary: Effect of one party making averments in a sworn pleading and conceding them in a case for grant of interim orders

Effect of one party making averments in a sworn pleading and conceding them in a case for grant of interim orders

Elias Bizuru v Inter-University Council of East Africa (IUCEA)

Application No.10 of 2018

East African Court of Justice

First Instance Division

M K Mugenyi, PJ; F Ntezilyayo,DPJ; F A Jundu , C Nyawello & C Nyachae, JJ

July 5, 2019

Reported by Faith Wanjiku

Download the Decision

Civil Practice and Procedure-interlocutory injunctions-interim orders- principles governing the granting of interim orders- where a party had made averments in a sworn pleading and conceded them in favour of the other party-import of pleadings to a party in a suit - whether an applicant under the circumstances where a respondent had made averments in a sworn pleading and conceded them could prove a case for grant of interim orders against the respondent

International Law-Law of Treaty- Treaty for the Establishment of the East African Community- Counsel to the Community-powers-delegation of – representation of the Community and its institutions before the East African Court of Justice- persons to whom the powers could be delegated to-whether Mr. Ruharo (counsel for the respondent) had locus standi to represent the respondent before the instant court as a Counsel to the Community (CTC) pursuant to the Treaty and whether the CTC could delegate the powers vested to him under article 37(2) of the Treaty to represent the Community and its institutions before the instant court-Treaty for the Establishment of the East African Community Act, 1999,article 37(2; East African Court of Justice Rules of Procedure, 2013, rule 17(2)

International Law-Law of Treaty- Treaty for the Establishment of the East African Community- organs and institutions of the Community- establishment of-Inter-University Council for East Africa-whether the respondent was an institution of the Community and therefore a right party to be sued by the applicant under the provisions of the Treaty-Treaty for the Establishment of the East African Community Act, 1999,articles 9(2), 37 (2);East African Court of Justice Rules of Procedure, 2013, rule 17(2)

Brief Facts:

The application was based on the applicant’s complaint that the respondent had originally advertised for the position of Chief Research and Innovation Coordination Officer, which he applied for and emerged the best candidate in an interview conducted by the respondent. However, on November 11, 2017, the respondent re-advertised the aforesaid position despite the fact that the respondent had already been served with a copy of the main reference. The applicant therefore sought an interim order restraining the respondent from making any recruitment in respect of the aforesaid position until the final determination of the main reference by the instant court.

Issues:

i Whether an applicant under the circumstances where a respondent had made averments in a sworn pleading and conceded them could prove a case for grant of interim orders against the respondent.

ii Whether Mr. Ruharo (counsel for the respondent) had locus standi to represent the respondent before the instant court as a Counsel to the Community (CTC) pursuant to the Treaty and whether the CTC could delegate the powers vested to him under article 37(2) of the Treaty to represent the Community and its institutions before the instant court.

iii Whether the respondent was an institution of the Community and therefore a right party to be sued by the applicant under the provisions of the Treaty.

Relevant Provisions of the Law

Treaty for the Establishment of the East African Community Act, 1999

(Amended on 14th December, 2006 and on 20th August, 2007)

Article 37(2) -Appearance before the Court

The Counsel to the Community shall be entitled to appear before the Court in any matter in which the Community or any of its institutions is a party or in respect of any matter where the Counsel to the Community thinks that such an appearance would be desirable.

The East African Court of Justice Rules of Procedure, 2013

Rule 17(2) -Appearance and Representation

The Counsel to the Community may appear and represent the Community or any of its institutions in anywhere the Community or any of its institutions is a party or where the Counsel thinks that such appearance is desirable.

Held

1. The succinct and clear import of article 37(2) of the Treaty and rule 17(2) of the Rules was:

(a) To provide locus standi to the CTC to appear and represent the Community or any of its institutions before the Court, in the event of such institution being a party or if the CTC thought desirable to do so.

(b)The said provisions were clearly indicative that institutions of the Community, such as the respondent, could be made parties before the court.

In other words, institutions of the Community such as the respondent could be sued before the court. The respondent was the proper and right party to be sued by the applicant before the court in terms of article 37(2) of the Treaty and rule 17(2) of the court’s Rules of Procedure.

2. Article 37(2) and rule 17(2) provided locus standi to the CTC to appear before the court to represent the Community or any of its Institutions when the same had been made parties thereto. However, the said provisions did not provide power to the CTC to delegate that function of his office to anyone else that was not deployed in the office of the CTC. Therefore, the contention of counsel for the respondent and the CTC that there was such delegation giving locus standi to counsel for the respondent before the court in the application was untenable.

3. There was no difference of opinion as to the law regarding interlocutory injunctions although it could be expressed in different ways. A plaintiff had to show a prima face case with a probability of success and if the court was in doubt, it would decide the application on the balance of convenience. An interlocutory injunction would not normally be granted unless the applicant for it might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.

4. There was need for courts dealing with an application for an interlocutory injunctions to be satisfied that the claim was not frivolous or vexatious but that there was a serious question to be tried, without attempting to resolve conflicts as evidence, as had previously been required in the determination of prima facie case with probability of success.

5. Although the CTC at the hearing of the application stated that the respondent was opposing the application, he went ahead to argue that the application was now moot because the respondent had agreed to suspend and halt the recruitment process in issue pending the determination of the reference. The court did not subscribe to the CTC’s contention that the application was now moot. That was not a hypothetical or abstract application. It was based on a known reference, a dispute that was yet to be resolved by the instant Court. Counsel for the applicant emphatically maintained that, given the suspension of the recruitment process as averred, the court should proceed to grant the application since (in his view) it had been conceded by the respondent.

6. Paragraphs 11 and 12 of the affidavit in reply would appear to support the applicant’s contention. For clarity the court reproduced them below:

11. That at the sitting of the 25th Executive Committee of IUCEA, the Committee was informed byIUCEASecretariat that, following advice from Counsel to the Community (CTC), the recruitment process in respect to the position of Chief Research and Innovation Officer had been halted pending settlement of the matter at the EACJ; 12. That IUCEA Secretariat had fully complied with the directive of the Executive Committee to halt the recruitment process and that, no shortlisting or interviewing process had been carried out in regard to filling the position of the Chief Research and Innovation Coordination Officer till to date.

7. The aforesaid averments, as well as the respondent’s submissions at the hearing of the application, did concede the order sought in the application, namely, an order to provisionally restrain the respondent from undertaking any recruitment before a final ruling on reference was rendered. A party in a suit was bound by his pleadings. The respondent was bound by the averments in its affidavit in reply. Much more so, when the averments in question were contained in a sworn pleading such as an affidavit.

8. The application had been conceded by the respondent. The respondent counsel’s submissions that the application did not establish the conditions for the grant of interim orders faded in relevance against the express averments in the respondent’s affidavit in reply

Application allowed; costs would be in the cause.

Order

i An order was issued restraining the respondent from pursuing the recruitment process in respect of the position of Chief Research and Innovation Coordination Officer in the Inter-University Council of East Africa until the determination of Reference No.13 of 2017 by the instant Court.

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