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Centre for Law Economic and Policy of East African Integration (CLEP East Africa) v Attorney General of the Republic of Kenya and Another (Application No.7 of 2024 (Arising from Reference No.10 of 2024))

East African Court of Justice · [2025] EACJ 10 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim injunction arising from Reference No. 10 of 2024 challenging the Kenya-EU Economic Partnership Agreement
Decision
Interim injunction granted staying implementation of the Kenya-EU Economic Partnership Agreement pending determination of the main Reference

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court granted an interim injunction staying implementation of the Kenya-EU Economic Partnership Agreement pending determination of Reference No. 10 of 2024. The Court held that the application satisfied the three-fold test for interim relief: it raised serious triable issues concerning potential Treaty violations; the applicant would suffer irreparable environmental and biodiversity harm incapable of quantification or compensation by damages; and the balance of convenience favoured preserving the status quo. The Court found that environmental harm, once inflicted, is rarely repaired and cannot be adequately compensated monetarily.

Outcome

Interim injunction granted staying implementation of the Kenya-EU Economic Partnership Agreement pending determination of the main Reference

Facts

The applicant, a Ugandan think-tank on East African integration, filed Reference No. 10 of 2024 challenging the Kenya-EU Economic Partnership Agreement (EPA) as violating the EAC Treaty and related protocols. The applicant alleged Kenya failed to notify other Partner States before concluding the EPA, as required by Article 37 of the Customs Union Protocol and Common Market Protocol. Kenya had signed the EPA on 18 December 2023 and ratified it on 24 April 2024. The applicant filed this application under certificate of urgency seeking interim orders to restrain Kenya from implementing the EPA pending determination of the main Reference. The applicant argued the EPA would cause irreparable environmental and biodiversity harm. Kenya contended it acted under the principle of variable geometry as approved by the 21st Ordinary Summit and that implementation should proceed.

Issues

  1. Whether the application raises serious triable issues warranting interim relief.
  2. Whether the applicant will suffer irreparable injury that cannot be adequately compensated by damages if the interim injunction is not granted.
  3. Whether the balance of convenience favours granting the interim injunction to stay implementation of the Kenya-EU Economic Partnership Agreement pending determination of the main Reference.

Orders

  • Application allowed.
  • Implementation of the Economic Partnership Agreement between the Republic of Kenya and the European Union stayed until determination of Reference No. 10 of 2024.
  • Registrar directed to ensure hearing of the Reference is fast tracked.
  • Costs to abide the outcome of the case.

Rules and key headnotes

Interim Relief — Test for Grant of Interlocutory Injunction
Applications for interim orders are subjected to a three-fold test: first, the court must be satisfied there is a serious question to be tried on the merits showing the applicant has a cause of action depicting substance and reality; secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and thirdly, if the court is in doubt, it will decide the application on the balance of convenience.
Interim Relief — Sequential Application of Tests
The conditions for granting an interlocutory injunction are sequential so that the second condition can only be addressed if the first one is satisfied, and when the court is in doubt the third condition can be addressed. The third condition of balance of convenience is deployable only in instances where doubt exists as to the applicant's right or irreparable harm.
Irreparable Harm — Environmental and Biodiversity Damage
Environmental harms are presumed to be irreparable and provide an appropriate occasion for injunctive relief. The environment, once damaged, is rarely ever repaired. Where an agreement touches widely on environmental and biodiversity aspects, harm to be incurred is incapable of quantification using market trends and thus incapable of compensation and redress by way of damages.
Interim Relief — Burden of Proof on Compensability of Harm
Where a respondent contends that injury claimed by an applicant is capable of being compensated by awarding damages, the onus probandi shifts to the respondent to demonstrate that assertion, applying the legal maxim 'reus in excipiendo fit actor'. The respondent must show how to assess the quantum of compensation and who to compensate, particularly where the reference is instituted in the public interest.
Treaty Obligations — Serious Triable Issues
Where a reference challenges potential abrogation of Treaty provisions, the first test for interim relief (serious triable issues) is surmounted. A challenge to whether a Partner State concluded an international agreement in violation of notification requirements under the EAC Treaty and related protocols raises serious triable issues.

Legislation cited (23)

  • Treaty for the Establishment of the East African Community Article 5(2)
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 8(3)(c)
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 70
  • Treaty for the Establishment of the East African Community Article 75
  • Treaty for the Establishment of the East African Community Article 76
  • Treaty for the Establishment of the East African Community Article 92
  • Treaty for the Establishment of the East African Community Article 116
  • Treaty for the Establishment of the East African Community Article 130
  • Treaty for the Establishment of the East African Community Article 151
  • Protocol on the Establishment of the East Africa Customs Union Article 2(4)(c)
  • Protocol on the Establishment of the East Africa Customs Union Article 12
  • Protocol on the Establishment of the East Africa Customs Union Article 37
  • Protocol on the Establishment of the East Africa Community Common Market Article 37
  • African Continental Free Trade Area Protocol on Trade in Goods Article 4(2)
  • East African Court of Justice Rules, 2019 Rule 4
  • East African Court of Justice Rules, 2019 Rule 52
  • East African Court of Justice Rules, 2019 Rule 84

Cases cited (10)

  • Giella v Cassman Brown & Co Ltd [1973] EA 360
  • Francis Ngaruko v Attorney General of Burundi (EACJ Application No. 3 of 2019)
  • Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (EACJ Reference No. 9 of 2010)
  • Kioo Ltd v Attorney General of the Republic of Kenya (EACJ Application No. 9 of 2020)
  • British American Tobacco v Attorney General of the Republic of Uganda (EACJ Application No. 13 of 2017)
  • Castro Pius Shirima v Attorney General of Burundi and 6 Others (EACJ Application No. 11 of 2016)
  • Alvin Kahoho v Secretary General of the East African Community (EACJ Application No. 5 of 2012)
  • Timothy Alvin Kahoho v Secretary General of the East African Community (EACJ Application No. 5 of 2012)
  • Mbidde Foundation Ltd and Rt Hon Margaret Zziwa v Secretary General of the East Africa Community and Attorney General of Republic of Uganda (EACJ Application No. 5 of 2014)
  • Prof Peter Anyang' Nyongo and 10 Others v Attorney General of the Republic of Kenya and 3 Others (EACJ Reference No. 1 of 2006)

Full judgment

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

Centre for Law Economic and Policy of East African Integration (CLEP East Africa) v Attorney General of the Republic of Kenya and Another (Application No.7 of 2024 (Arising from Reference No.10 of 2024)) [2025] EACJ 10 (24 November 2025)
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.