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East African Law Society and Others v AG of Kenya and Others (Application 9 of 2007)

East African Court of Justice · [2007] EACJ 2 · 2007 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim injunction arising from Reference challenging Treaty amendments
Decision
Application for interim injunction dismissed; main Reference to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Bar Associations have locus standi to bring public interest litigation challenging Treaty amendments as they have a duty to promote adherence to the rule of law. The Court found that the applicants established a serious question to be tried regarding interpretation of Article 150 of the Treaty. However, the application for interim injunction was dismissed because the impugned amendments had already been implemented and whatever had been done could not be undone in interlocutory proceedings. Any remaining operationalization could be rectified if amendments were declared illegal in the main Reference.

Outcome

Application for interim injunction dismissed; main Reference to proceed to hearing

Facts

Five Bar Associations from East African Partner States filed Reference No. 3 of 2007 challenging amendments to the Treaty for the Establishment of the East African Community. They alleged that the amendments and ratification by Kenya, Tanzania and Uganda were illegal and unconstitutional as they contravened Articles 150 and 38 of the Treaty. The applicants sought declarations that the amendment process was unlawful and that ratification processes were illegal. Together with the Reference, they filed an ex parte application for interim orders restraining the respondents from implementing the proposed Treaty amendments that were commenced pursuant to a Summit Communiqué issued on 30 November 2006. The Court directed that the application be heard inter partes. By the time of the hearing, the impugned amendments had already been implemented save for appointment of judges to the reconstituted Court.

Issues

  1. Whether the applicants have locus standi to bring the Reference challenging Treaty amendments.
  2. Whether the applicants have established a prima facie case with probability of success.
  3. Whether the applicants would suffer irreparable injury if the interim injunction is not granted.
  4. Whether the balance of convenience favours granting the interim injunction.

Orders

  • Application for interim injunction dismissed.
  • Costs to be in the cause.

Rules and key headnotes

Locus Standi — Public Interest Litigation — Bar Associations
Bar Associations have locus standi to bring public interest litigation to ensure observance of Treaty provisions where they are genuinely interested in the matter complained of and have a duty to promote adherence to the rule of law, even where they cannot show personal loss or injury.
Locus Standi — Relaxation of Traditional Rule — Public Wrong
The strict rule of locus standi applicable to private litigation is relaxed in public interest litigation to give the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong, provided they are not a mere busybody or meddlesome interloper.
Interlocutory Injunctions — Conditions for Grant
For an interlocutory injunction to be granted, an applicant must show: (i) a prima facie case with probability of success; (ii) that they might otherwise suffer irreparable injury which would not adequately be compensated by damages; and (iii) if the Court is in doubt, the balance of convenience must favour the applicant.
Interlocutory Injunctions — Irreparable Injury — Events Already Occurred
An interim injunction will be refused where the impugned acts have already been implemented and cannot be undone in interlocutory proceedings, even if those acts were unlawful, provided that any remaining operationalization can be rectified if the acts are declared illegal in the main proceedings.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Article 1
  • Treaty for the Establishment of the East African Community Article 4
  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 7
  • Treaty for the Establishment of the East African Community Article 8
  • Treaty for the Establishment of the East African Community Article 9
  • Treaty for the Establishment of the East African Community Article 11
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 38
  • Treaty for the Establishment of the East African Community Article 150
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 20

Cases cited (9)

  • S.P. Gupta v Union of India (AIR 1982 SC 149)
  • Ex-parte Sidebotham (1880) 14 Ch D 458
  • Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd (1982) AC 617
  • Janata Dal v H.S. Chowdhary (AIR 1993 SC 892)
  • Rev. Christopher Mtikila v The Attorney General [1995] TLR 31
  • Prof. Peter Anyang' Nyongo and 10 Others v The Attorney General of Kenya and 5 Others (Reference No. 1 of 2006)
  • Auto Garage v Motokov (No.3) (1971) EA 514
  • Giella v Cassman Brown & Co. Ltd (1973) EA 358
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society (2001) IEA 86

Full judgment

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

East African Law Society and Others v AG of Kenya and Others (Application 9 of 2007) [2007] EACJ 2 (11 July 2007)
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.