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Attorney General of Republic of Kenya v Independent Medical Legal Unit (Appeal No. 1 of 2011)

East African Court of Justice · [2012] EACJ 4 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Ruling of the First Instance Division concerning jurisdiction and limitation in a reference alleging human rights violations
Decision
Reference struck out as time-barred

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice Appellate Division allowed the appeal, holding that the First Instance Division failed to provide adequate reasons for its decision on jurisdiction and erred in finding that the Reference was not time-barred. The Court held that Article 30(2) of the EAC Treaty imposes a strict two-month limitation period from the date the complainant became aware of the action complained of, with no power to extend that period. The Reference was struck out as time-barred, having been filed at least one-and-a-half years after the respondent became aware of the alleged violations through widely publicised reports.

Outcome

Reference struck out as time-barred

Facts

The Independent Medical Legal Unit (IMLU), a Kenyan NGO, filed a reference in the First Instance Division of the East African Court of Justice alleging that the Government of Kenya failed to investigate alleged executions, torture, and inhuman treatment of over 3,000 Kenyan residents in Mount Elgon District between 2006 and 2008. The Attorney General of Kenya raised preliminary objections including jurisdiction and limitation. The First Instance Division held it had jurisdiction and that the Reference was not time-barred. The Attorney General appealed. Multiple reports documenting the atrocities were published between 2008 and 2009, including reports by the Kenya National Commission on Human Rights, Human Rights Watch, and a UN Special Rapporteur. IMLU filed the Reference on 12 July 2010, at least one-and-a-half years after becoming aware of the alleged violations through these widely circulated reports.

Issues

  1. Whether the learned Judges erred in law and in fact in arriving at the decision that the Court has jurisdiction to hear the Reference.
  2. Whether the learned Judges erred in law and in fact in arriving at their decision that the Reference is not time barred.
  3. Whether the matters raised constituted proper preliminary objections under the Mukisa Biscuits test.

Orders

  • Appeal allowed.
  • The Reference lodged in the First Instance Division on 12th July 2010 is hereby ordered struck out for having been filed outside the time limit prescribed under Article 30(2) of the EAC Treaty.
  • Each party shall bear its own costs of the appeal.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Requirements under Mukisa Biscuits Test
A preliminary objection must raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A preliminary objection is in the nature of a demurrer and the improper raising of points by way of preliminary objection unnecessarily increases costs and confuses the issues.
Administrative Law — Judicial Reasoning — Duty to Provide Reasons for Judgment
A court must provide reasons for its judgment as expressly required by the applicable rules of procedure. A court cannot discharge its duty to provide reasons by merely citing a previous case without giving its own reasoning for its own decision, particularly where the issue involves mixed questions of fact and law.
Administrative Law — Jurisdiction of Regional Courts — Limits of Powers Conferred by Treaty
A regional court established by treaty can only act within the limits of the powers conferred upon it by the treaty or any later conventions. Its jurisdiction must be derived from specific provisions and does not extend beyond the defined area. The court has no express or implied jurisdiction to extend time limits set by the treaty.
Civil Procedure — Limitation of Actions — Strict Time Limits in Treaty-Based References
Where a treaty provision prescribes that proceedings must be instituted within two months of the action complained of or of the day it came to the knowledge of the complainant, that time limit is strict and mandatory. The treaty does not recognize any continuing breach or violation outside the two-month period, nor is there any power to extend that time limit. The reason for such short time limits is to ensure legal certainty among the diverse membership of the community.
Civil Procedure — Limitation — Knowledge of Complainant — Widely Publicised Reports
For purposes of computing the limitation period under a treaty provision requiring proceedings to be instituted within two months of the day the action came to the knowledge of the complainant, knowledge is established where multiple dated reports documenting the alleged violations have been widely circulated to the public and made available to the complainant.

Legislation cited (17)

  • Treaty Establishing the East African Community Article 4
  • Treaty Establishing the East African Community Article 5
  • Treaty Establishing the East African Community Article 5(1)
  • Treaty Establishing the East African Community Article 5(3)(f)
  • Treaty Establishing the East African Community Article 6(d)
  • Treaty Establishing the East African Community Article 7
  • Treaty Establishing the East African Community Article 9(4)
  • Treaty Establishing the East African Community Article 23(3)
  • Treaty Establishing the East African Community Article 27
  • Treaty Establishing the East African Community Article 27(1)
  • Treaty Establishing the East African Community Article 27(2)
  • Treaty Establishing the East African Community Article 30
  • Treaty Establishing the East African Community Article 30(2)
  • Treaty Establishing the East African Community Article 35A
  • EACJ Rules of Procedure Rule 24
  • EACJ Rules of Procedure Rule 68(5)
  • EACJ Rules of Procedure Rule 77

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • James Katabazi & 21 Others v EAC Secretary General & Attorney General of Uganda (Reference No. 1 of 2007)
  • Moiwana Community v Surinam (Inter-American Court of Human Rights: Judgment of June 15, 2005)
  • Case 24/69 Nebec v EC Commission [1975] ECR 145 at 151, ECJ
  • Case 209/83 Ferriera Valsabbia Spa v EC Commission OJ C2009, 9.8.84 p.6, para 14, ECJ

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Attorney General of Republic of Kenya v Independent Medical Legal Unit (Appeal No. 1 of 2011) [2012] EACJ 4 (15 March 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.