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Attorney General of the Republic of Kenya v Karua and Others (Appeal No.4 of 2021)

East African Court of Justice · [2022] EACJ 18 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice arising from Reference No. 20 of 2019
Decision
Appeal dismissed with costs; First Instance Division judgment declaring Kenya's violation of the EAC Treaty and awarding USD 25,000 in general damages to the Respondent upheld

Observed later treatment

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Holding

The East African Court of Justice Appellate Division dismissed the appeal by the Attorney General of Kenya, upholding the First Instance Division's finding that Kenya violated Articles 6(d) and 7(2) of the EAC Treaty through its Supreme Court's denial of access to justice to Martha Karua in an electoral dispute. The Court held that it has jurisdiction to interrogate decisions of Partner States' apex courts for Treaty compliance without exercising appellate jurisdiction, that it may interpret human rights provisions within the Treaty framework, that the two-month limitation period ran from the Supreme Court's decision not earlier court rulings, and that the award of USD 25,000 in general damages was appropriate.

Outcome

Appeal dismissed with costs; First Instance Division judgment declaring Kenya's violation of the EAC Treaty and awarding USD 25,000 in general damages to the Respondent upheld

Facts

Martha Karua contested the 2017 Kirinyaga County gubernatorial elections in Kenya. After the results were announced, she filed an election petition in the High Court, which was struck out on a technicality. The Court of Appeal reversed this decision and remitted the matter to the High Court for hearing on merits. The High Court dismissed the petition, finding that video evidence Karua had filed had never been submitted. Karua appealed to the Court of Appeal, which dismissed her appeal on grounds that the High Court hearing commenced after the six-month statutory period. Karua then appealed to the Supreme Court of Kenya, which dismissed her appeal on 6 August 2019, holding it lacked jurisdiction because the hearing commenced after the six-month period, while acknowledging this was not Karua's fault. Karua then filed a reference at the East African Court of Justice on 5 October 2019, alleging Kenya violated the EAC Treaty by denying her access to justice. The First Instance Division found in her favour, declaring Kenya had violated Articles 6(d) and 7(2) of the Treaty and awarding her USD 25,000 in general damages. Kenya appealed.

Issues

  1. Whether the First Instance Division erred in law by exercising an appellate jurisdiction over the interpretation of the Constitution of Kenya by the Supreme Court of Kenya
  2. Whether the First Instance Division erred in law by exercising a Human Rights jurisdiction which jurisdiction the Court does not have
  3. Whether the First Instance Division erred in law by treating the Supreme Court of Kenya as a court of First instance thereby misapplying the principles on which time starts to run for purposes of computing the limitation of time
  4. Whether the Respondent was entitled to the remedies granted by the First Instance Division of the Court

Orders

  • Appeal dismissed.
  • Judgment of the First Instance Division upheld.
  • Appellant to bear the Respondent's costs of the Appeal and of the Reference in the First Instance Division.

Rules and key headnotes

International Court Jurisdiction — State Responsibility for Judicial Acts
Under international law, a State assumes international responsibility for internationally wrongful acts committed by any of its organs, including the judicial organ, whether exercising legislative, executive, judicial or any other functions.
EACJ Jurisdiction — Interrogation of Domestic Court Decisions
The East African Court of Justice has jurisdiction to interrogate decisions of Partner States' apex courts to determine compliance with the EAC Treaty without exercising appellate jurisdiction over those courts. The EACJ does not review domestic decisions as an appellate court but evaluates them to test Treaty compliance and makes declarations as to whether the Partner State has complied with Treaty obligations.
EACJ Jurisdiction — Human Rights Within Treaty Framework
While the EACJ does not have extended human rights jurisdiction pending conclusion of a protocol under Article 27(2) of the EAC Treaty, the Court will not abdicate its jurisdiction of interpretation under Article 27(1) merely because a reference includes allegations of human rights violations. The Court has jurisdiction to ensure adherence to Articles 6(d) and 7(2) of the Treaty, which obligate Partner States to uphold good governance, democracy, rule of law, and human and peoples' rights in accordance with the African Charter.
Limitation Period — Computation of Time for Filing References
Under Article 30(2) of the EAC Treaty, the two-month limitation period for filing a reference runs from the date of the decision complained of. Where an applicant exercises the right to appeal through the domestic judicial hierarchy, the limitation period runs from the final decision of the apex court, not from earlier decisions in lower courts.
Access to Justice — Judicial Duty to Address Constitutional Lacunae
Where a constitution guarantees access to justice and provides that acts shall be done without unreasonable delay when no particular time is prescribed, a court has a duty to construe and remedy lacunae in the law to ensure equity and social justice. A supreme court's failure to address a statutory gap that results in denial of access to justice, particularly where the applicant is not at fault, violates the rule of law principle.
General Damages for Treaty Violations — State Responsibility
A State responsible for an internationally wrongful act is under an obligation to compensate for damage caused thereby. An international court may award general damages (moral, non-material or non-pecuniary damages) for Treaty violations, including violations of the rule of law and denial of access to justice by a State's judicial organ.

Legislation cited (21)

  • EAC Treaty Article 6(d)
  • EAC Treaty Article 7(2)
  • EAC Treaty Article 23(1)
  • EAC Treaty Article 27(1)
  • EAC Treaty Article 27(2)
  • EAC Treaty Article 30(1)
  • EAC Treaty Article 30(2)
  • EAC Treaty Article 35A
  • Constitution of Kenya 2010 Article 48
  • Constitution of Kenya 2010 Article 50
  • Constitution of Kenya 2010 Article 159(2)
  • Constitution of Kenya 2010 Article 259(1)
  • Constitution of Kenya 2010 Article 259(8)
  • Elections Act No. 24 of 2011
  • ILC Articles on State Responsibility Article 1
  • ILC Articles on State Responsibility Article 4
  • ILC Articles on State Responsibility Article 36(1)
  • ILC Articles on State Responsibility Article 38(1)
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 7
  • Vienna Convention on the Law of Treaties Articles 31-33

Cases cited (23)

  • East African Civil Society Organisations' Forum v Attorney General of Burundi and Others (EACJ Appeal No. 4 of 2016)
  • Sitenda Sebalu v Secretary General of the EAC and Others (Reference No. 1 of 2010)
  • Mary Ariviza v Attorney General of Kenya and Secretary General of the EAC (Appeal No. 3 of 2012)
  • Henry Kyarimpa v Attorney General of Uganda
  • Burundi Journalists Union v Attorney General of Burundi (Reference No. 7 of 2013)
  • Baranzira Raphael and Ntakiyica Joseph v Attorney General of Burundi (Reference No. 15 of 2014)
  • Manariyo Desire v Attorney General of Burundi (Reference No. 8 of 2015)
  • Alcon International v Standard Chartered Bank of Uganda and Others (Appeal No. 3 of 2013)
  • Katabazi and Others v Secretary General of the EAC and Attorney General of Uganda (Reference No. 1 of 2007)
  • Attorney General of Kenya v Independent Medical Legal Unit (Appeal No. 1 of 2011)
  • Attorney General of Rwanda v Plaxeda Rugumba (Appeal No. 1 of 2012)
  • Attorney General of Uganda v Omar Awadh and Others (Appeal No. 2 of 2012)
  • Simon Peter Ochieng & Another Vs The Attorney General of the Republic of Uganda
  • Angela Amudo v Secretary General of the EAC (Appeal No. 4 of 2014)
  • Media Council of Tanzania and Others v Attorney General of Tanzania (Reference No. 2 of 2017)
  • British American Tobacco Ltd v Attorney General of Uganda (Reference No. 7 of 2017)
  • Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina vs. Serbia & Montenegro), Judgment, ICJ Reports 2007, p.43
  • Military and para-military Activities in and against Nicaragua (Nicaragua vs. United States of America) Judgment, ICJ Reports 1984, p. 437 para 101
  • Honorable Dr. Margaret Zziwa
  • Grand Lacs Supplier SARL v Attorney General of Burundi (Reference No. 6 of 2016)
  • Attorney General of Burundi v Secretary General of the EAC and Another (Appeal No. 2 of 2019)
  • Gerhard Kobler vs Replik Osterreich [2003] ECR 1-10239
  • Attorney General v Ryan (1980) A.C. 718 at 729, HL

Full judgment

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

Attorney General of the Republic of Kenya v Karua and Others (Appeal No.4 of 2021) [2022] EACJ 18 (28 February 2022)
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.