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Kenya Law / Blog / Case Summary: A Reference Filed Under The Treaty For The Establishment Of The East African Community Is Not An Action In Tort But One That Challenges The Legality Of An Activity Of A Partner State Or Of Institutions Of The Community.

A Reference Filed Under The Treaty For The Establishment Of The East African Community Is Not An Action In Tort But One That Challenges The Legality Of An Activity Of A Partner State Or Of Institutions Of The Community.

A Reference Filed Under The Treaty For The Establishment Of The East African Community Is Not An Action In Tort But One That Challenges The Legality Of An Activity Of A Partner State Or Of Institutions Of The Community.

James Alfred Koroso v The Attorney General of the Republic of Kenya & The Principal Secretary, Ministry of State for Provincial Administration and Internal Security of the Republic of Kenya

I. Lenaola, DPJ; F.Ntezilyayo & F.A. Jundu

March 24, 2016

Reported by Linda Awuor & Faith Wanjiku

Brief Facts

The Applicant alleged that having been lured into Kenya by the Kenyan police in 1993, he was tortured, beaten physically and sexually assaulted in various Kenyan police stations. He had allegedly been arrested from the Kenya-Tanzania border and thereafter charged with the offence of robbery with violence in Criminal Case No.73 of 1993. The Court, however, found that the Applicant had no case to answer and acquitted him. Upon his acquittal and release from incarceration, the Applicant filed Civil Case No.2966 of 1996at the High Court of Kenya against the 1st Respondent for false imprisonment and malicious prosecution, violation of constitutional rights, general and exemplary damages. During the entire hearing of the said suit, the 1st Respondent failed to bring his witnesses to defend him despite repeated adjournments to allow him to do so and judgment was eventually entered in favour of the Applicant on February 22, 2008.

Despite the Applicant’s repeated demands for payment, the Respondents refused and failed to pay him to date. Further, various Notices to Show Cause were issued by the said Court against the Respondents. The Applicant filed the Reference claiming to be paid all the decretal sums he had been awarded by the Courts. He also contended that the acts and conduct of the Respondents were an infringement and violation of articles 6(d) and 7(2) of the Treaty of the Establishment of the East African Community (EAC) in particular the principles   of good governance, rule of law, accountability, transparency and social justice.

Issues

i. Whether the Court had  jurisdiction to entertain the Reference on violation of fundamental principles of the Treaty.

ii. Whether the Reference was filed under the two month limit in the Treaty and therefore time-barred.

iii. Whether the actions of the Respondents were in violation of articles fundamental and operational principles

of   the Treaty for the Establishment of the East African Community.

iv. Whether the issues in the Reference were similar to the issues in Nairobi HCCC No.2966 of 1996.

International Law - law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-jurisdiction of the Court- whether the Court had jurisdiction to entertain the Reference- Treaty for the Establishment of the East African Community (As amended on 14th December)-article 27

International Law - law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-Reference by Legal and Natural Persons- Whether the Reference was time-barred- Treaty for the Establishment of the East African Community (As amended on 14th December)-article 30(2)

International Law - law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-Fundamental Principles of the Community- whether the actions of the Respondents were in violation of article 6(d) of the Treaty- Treaty for the Establishment of the East African Community (As amended on 14th December)-article 6 (d)

International Law - law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community- Operational Principles of the Community- whether the actions of the Respondents were in violation of article 7(2)of the treaty-Treaty for the Establishment of the East African Community (As amended on 14th December)-article 7 (2)

Relevant Provisions of the Law

Article 6(d) – Fundamental Principles of the Community

good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

Article 7(2) – Operational Principles of the Community

The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.

Article 27(1) – Jurisdiction of the Court

The Court shall initially have jurisdiction over the interpretation and application of this Treaty:

Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.

Article 30 (1),(2) – Reference by Legal and Natural Persons

Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act , regulation, directive, decision or act ion is unlawful or is an infringement of the provisions of this Treaty.

The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.

Held

  1. The Court had jurisdiction under articles 23, 27 and 30 of the Treaty to entertain and determine the Reference in particular the interpretation and application of articles 6(d) and 7(2). The Applicant’s accessibility to the Court was mandated under article 30(1) of the Treaty. The Applicant had alleged that articles 6(d) and 7(2) had been violated or infringed by the Respondents. In numerous decisions of the Court, the Court held that once there was an allegation of infringement of the provisions of the Treaty, the Court had jurisdiction to interpret and apply the provisions alleged to be infringed under the powers conferred on it by articles 23(1) and 27(1) of the Treaty.
  2. Close reading of the Reference showed that the complaints of the Applicants were based on non-compliance by the Respondent of a judgment, decree and certificate of order by the High Court of Kenya issued on February 22, 2008, April 11, 2008 and December 8, 2011 respectively by which time or dates the Treaty had long been brought into force i.e. since July 7, 2000.They were further based on the judgment issued on March 19, 2013, decree and certificate of order issued on March 25, 2013 in Judicial Review Application No.44 of 2012 issued on March 19, 2013 and decree and certificate of order on March 25, 2013 as well as the various court orders by way of Notices to Show Cause and Warrants of Arrest to the 2nd Respondent from 2013 to 2014. The Court therefore, disagreed with the arguments of the Respondents as regards application of the principle of non-retroactivity.
  3. The issue of exhaustion of local remedies could not detain the Court because it had in its previous decisions stated that exhaustion of local remedies was not a pre-condition for accessing the Court. That the matter was before the Court of Appeal of Kenya did not bar the Applicant from accessing the Court under article 30(1) of the Treaty. The Court as per the provisions of articles 23(1), 27(1) read together with article 30(1) of the Treaty and as per numerous of its previous decisions, had jurisdiction to entertain and determine the Reference given the Applicant’s allegation that there was violation or infringement of articles 6(d) and 7(2) of the Treaty.
  4. Article 30(2) limited the time within which a party could approach the Court to two months from the date of the action complained of (or from the date the Applicant came to know of an alleged violation. The filing of the Reference by the Applicant on July 21, 2014, in that context, was well within the time limit of two months stipulated under article 30(2) of the Treaty counted from the date the Respondents defied the Warrant of Arrest. While therefore the initial claim by the Applicant before the High Court of Kenya may have related to events between 1993 and 1996, the issues in context were the aforesaid orders issued between 2008 and 2014.   It was the Court’s view that whereas any orders issued prior to 21st May, 2014 were out of time, some orders were issued as late as July 9, 2014 and certainly defiance of such orders fell within the time limit in challenging them before the Court. The Reference was filed by the Applicant partly within the time limit as required under article 30(2) of the Treaty.
  5. The Court could inquire into non-compliance with the Warrant of Arrest dated July 9, 2014. The latter arose from the defiance of the 2nd Respondent to a Notice to Show Cause dated July 3, 2014. Such actions and conduct of the Respondents, undoubtedly, were not in pursuance of the principles of good governance and rule of law stated in articles 6(d) and 7(2) of the Treaty.
  6. Comparison of the issues in the two cases clearly showed that issues in those two cases were different. The cause of action in Civil Case No.2966 of 1996 was on false imprisonment, malicious prosecution, battery and assault, loss of business and damages inter alia, while in the Reference, the Applicant’s cause of action was centered on violation of articles 6(d) and 7(2) of the Treaty. It was obvious from the foregoing that the issues for determination in the two cases were completely different although based on the same set of facts.
  7. As far as prayer (a) was concerned, that is, a declaration that the Respondents had violated articles 6(d) and 7(2) of the Treaty, the non-compliance with the Warrant of Arrest issued by the High Court of Kenya on July 9, 2014, amounted to a violation of the principles of good governance and rule of law. The conduct of the Respondents since the Applicant obtained his Judgment on February 22, 2008 was most unfortunate. The Judgment was rendered by a competent Court in Kenya and there was an expectation that in a country governed under the rule of law, all court orders, however painful and whatever the views of the Respondents, ought to be respected and complied with unless overturned by an appeal or otherwise reviewed. The Respondents in that regard filed a Notice of Appeal on March 4, 2008 and finally an appeal was filed on July 1, 2014, six years later. No justifiable reason had been given for that delay and yet the Applicant had constantly and persistently pursued the fruits of his Judgment. Had the Court’s hands not been tied by the limitation provision in article 30(2) of the Treaty, it would have certainly held the Respondents to account for their actions within their obligations under the Treaty.
  8. As regards prayers (b), (c), (d) and (e), the Court agreed fully with the Respondents that the Court, under articles 23, 27 and 30 was not conferred with powers to grant such orders. It only dealt with interpretation and application of the provisions of the Treaty and ensuring its compliance thereon. A reference under article 30 of the Treaty could not be construed as an action in tort brought by a person injured by or through the misfeasance of another. It was an action brought to challenge the legality, under the Treaty, of an activity of a Partner State or of institutions of the Community. The alleged collusion and   connivance of   the   Treaty, if any, was not actionable under article 30 as held in Attorney General of the Republic of Kenya vs. Independent Medical Legal Unit.
  9. The Applicant referred to article 44 of the Treaty and alleged that the Court was empowered to impose pecuniary obligation in execution of a judgment of the Court and argued that the said article was an authority that the Court could grant a money award to an applicant hence, the Court had jurisdiction to grant prayers (b), (c), (d) and (e). Judgment of the Court mentioned in article 44 took the import of the provisions of articles 23, 27 and 30 of the Treaty, that is, that it was limited to interpretation and application of the provisions of the Treaty and their compliance thereof. The imposition of pecuniary obligation in article 44 referred to matters in pursuance of an interpretation and application of the provisions of the Treaty and nothing else. Pecuniary obligations included costs and had nothing to do with the awards and orders mentioned by the Applicant in prayers (b), (c), (d) and (e).
  10. In prayer (d), the Applicant prayed to the Court to order the Respondent   to pay the decretal amount granted in Civil Case No.2966 of 1996by the High Court of Kenya. Likewise, in prayer (e), the Applicant prayed to the Court to order the Respondents to pay interest at commercial rate on the decretal sum from the date of Judgment to the date of satisfaction. The two sought reliefs fell under the jurisdiction of the National Courts in Kenya. Indeed, the record showed that the Respondents had obtained an order of stay of execution at the Court of Appeal of Kenya, and that they were pursuing an Appeal before the said Court against the decision of the High Court in Civil Case No. 2966 of 1996.The Court could not grant prayers (d) and (e) sought by the Applicant. 2,4,9,2, 3, 4
  11. In prayer (f), the Applicant prayed for costs. He referred to Rule 111(1) of the East African Court of Justice Rules of Procedure 2013 which provided that costs should follow the event and that there was an occasion the Court had ordered certain Respondents to pay costs. It was also well known that the grant of costs was a discretionary exercise by a court. After due consideration of the matter, the Applicant was only entitled to 1/4 of the costs.

 

Reference partly allowed:

i) Prayer (a) of the Reference is granted in the following terms only:

A declaration be and is hereby issued that by failing to effect the Warrant of Arrest issued by the High Court of Kenya on July 9, 2014, and before orders of stay of execution were issued by the Kenyan Court of Appeal On July 22, 2014, the Respondents violated articles 6(d) and 7(2) of the Treaty   for the Establishment of the East African Community.

ii) Prayers (b), (c), (d) and (e) of the Reference are denied and are therefore dismissed.

iii) The Applicant shall have 1/4 of the costs of the Reference.

 

 

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