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Chepkwony v Attorney General of the Republic of Kenya (Reference No.17 of 2018)

East African Court of Justice · [2022] EACJ 22 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice alleging violation of Treaty provisions relating to good governance, rule of law, and children's right to education following evictions from Mau Forest Complex
Decision
Reference dismissed — Court found that the Applicant failed to prove that the Respondent violated Treaty obligations or discriminated against minors in providing education

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that it has jurisdiction to interpret and apply the Treaty and that exhaustion of local remedies is not a prerequisite for filing a Reference. The Court found that the Applicant disclosed a cause of action by citing Treaty provisions allegedly violated. However, the Court held that the Applicant failed to prove on the balance of probabilities that the Government of Kenya violated its duty to provide free basic education to minors affected by the 2018 Mau Forest evictions or that it discriminated against those children. The Reference was dismissed.

Outcome

Reference dismissed — Court found that the Applicant failed to prove that the Respondent violated Treaty obligations or discriminated against minors in providing education

Facts

The Applicant, Governor of Kericho County, filed a Reference on behalf of over 5000 primary school pupils whose parents were evicted from areas adjacent to the Mau Forest Complex in Kenya between June and August 2018. The Applicant alleged that the evictions were conducted in an inhumane manner, that schools were destroyed or closed, and that the Government failed to provide alternative education facilities or ensure the minors' continued access to education. The Respondent contended that the evictions were lawful removals of illegal encroachments into the Maasai Mau Forest Reserve, that adequate notice was given, that no registered schools were demolished, and that affected pupils had access to alternative schools. The Respondent denied any violation of children's rights to education.

Issues

  1. Whether the Court has jurisdiction to entertain and determine the Reference under Articles 6(d), 7(2), 27(1), and 30(1) & (2) of the Treaty for the Establishment of the East African Community.
  2. Whether the Reference is sub-judice and raises similar issues of law and fact as the Nakuru ELC Petition 12 of 2018 such that it proscribes or prohibits this Reference.
  3. Whether the Applicant has disclosed a cause of action.
  4. Whether the alleged evictions are lawful.
  5. Whether the Respondent has fulfilled its duty, without discrimination, to provide free basic education and uphold the minors' rights thereto as required by the Treaty, the African Charter on Human and Peoples' Rights, the Constitution of Kenya, and the laws of Kenya.
  6. Whether the Parties are entitled to the remedies sought.

Orders

  • The Reference is dismissed in its entirety.
  • Each party to bear their own costs.

Rules and key headnotes

Jurisdiction of the East African Court of Justice — Exhaustion of Local Remedies
The jurisdiction of the East African Court of Justice to interpret and apply the Treaty is not contingent upon the exhaustion of local remedies by an applicant. The Treaty provides no requirement for exhaustion of local remedies as a precondition for accessing the Court.
Cause of Action before the East African Court of Justice
A cause of action for the purposes of filing a Reference before the East African Court of Justice is established when a party cites a Treaty provision that is alleged to have been violated. Causes of action before the Court are grounded in the Court's interpretative and enforcement function under Article 23(1) of the Treaty, rather than the enforcement of typical common law rights.
Sub-Judice Rule — Parallel Proceedings in National Courts
The doctrine of res sub-judice does not oust the jurisdiction of the East African Court of Justice merely because similar matters are pending before national courts, unless it is proved to the satisfaction of the Court that the same subject matter involving the same parties is pending before the national court and that the causes of action are identical.
Burden of Proof — Civil Standard
In the East African Court of Justice, as in national courts, the burden of proof is on whoever asserts a fact or proposition of law essential to the success of his or her case. The standard of proof in civil causes is on the balance of probabilities, also referred to as the preponderance of evidence. The burden of proof lies on the one who would fail if no proof was offered.
Right to Education — Proof of Discrimination
An applicant alleging that a government has violated the right to education and discriminated against children must prove on the balance of probabilities that the government overtly or covertly discriminated against the affected children or reneged on its duty to provide free basic education. Mere assertion that evictions occurred and that children were affected is insufficient without cogent evidence that the government failed to provide alternative educational facilities or access.
Admission of Evidence After Closure of Hearing
After closure of hearing and conclusion of oral proceedings, the Court will not ordinarily permit the reopening of evidence to admit new documents or expert reports, except in very exceptional circumstances. An application to reopen evidence filed after hearing has been finalised and submissions concluded falls outside the ambit of the Rules and will be declined where it appears to be an afterthought aimed at delaying the course of justice.

Legislation cited (13)

  • Treaty for the Establishment of the East African Community Articles 6(c), 6(d), 7(2), 8(1), 23, 27(1), 29(1), 30(1), 30(2), 73, 138(3)
  • East African Court of Justice Rules of Procedure 2013 Rules 8, 17(1), 50(5), 67, 69, 74(2), 111, 112
  • East African Court of Justice Rules of the Court 2019 Rule 136
  • Constitution of Kenya 2010 Article 47(2), Article 53
  • Basic Education Act (Kenya) No. 14 of 2013 Parts IV, IX, X, XII, Section 28
  • Children's Act (Kenya) No. 8 of 2001
  • Fair Administrative Action Act (Kenya) Section 5
  • Forest Conservation and Management Act (Kenya) 2016 Section 30(3)
  • African Charter on Human and Peoples' Rights Article 2, Article 5, Article 17(1)
  • UN Convention on the Rights of the Child
  • International Covenant on Civil and Political Rights
  • American Convention on Human Rights
  • Kenya Civil Procedure Act Cap. 21 Section 6

Cases cited (10)

  • Attorney General of the Republic of Rwanda v Rugumba (EACJ Appeal No. 1 of 2012)
  • Komu v Attorney General of the United Republic of Tanzania (EACJ Reference No. 7 of 2012)
  • British American Tobacco (U) Ltd v Attorney General of Uganda (EACJ Application No. 13 of 2017)
  • Union Trade Centre Limited v Attorney General of Rwanda (EACJ Appeal No. 1 of 2015)
  • Kyarimpa v Attorney General of Uganda (EACJ Appeal No. 6 of 2014)
  • Mpozayo Christophe v Attorney General of the Republic of Rwanda (EACJ Reference No. 10 of 2014)
  • Manariyo Desire v Attorney General of the Republic of Burundi (EACJ Appeal No. 1 of 2017)
  • Garang Michael Mahok v Attorney General of the Republic of South Sudan (EACJ Reference No. 19 of 2018)
  • Amudo v Secretary General of the East African Community (EACJ Application No. 4 of 2015)
  • Narok ELC Petitions Nos 12 and 13 of 2018

Full judgment

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

Chepkwony v Attorney General of the Republic of Kenya (Reference No.17 of 2018) [2022] EACJ 22 (28 September 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.