Wakilii

Echaria v Kenya (Communication 375 of 2009)

African Commission on Human and Peoples' Rights · [2011] ACHPR 89 · 2011 Communication Inadmissible AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violation of the African Charter following a Kenyan Court of Appeal decision reducing the complainant's share of matrimonial property
Decision
Communication declared inadmissible on procedural grounds

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that it has jurisdiction to determine communications alleging violations of the African Charter by State Parties, and that its role is not to act as an appellate body but to assess whether national court decisions comply with Charter obligations. The Commission found that local remedies had been exhausted where the Kenyan Court of Appeal, the highest court at the time, had rendered a final decision. However, the communication was declared inadmissible for failure to comply with Article 56(6), as it was submitted thirty-one months after local remedies were exhausted without any explanation for the delay.

Outcome

Communication declared inadmissible on procedural grounds

Facts

Priscilla Njeri Echaria was married to a Kenyan diplomat in 1964. The marriage ended in divorce in 1990. In 1987, she petitioned the High Court of Kenya for equal division of matrimonial property, specifically a 118-acre farm called Tigoni Farm. In 1993, the High Court granted her an equal share, recognising her indirect contribution to the property's acquisition. In 2001, her former husband appealed to the Court of Appeal, which in February 2007 set aside the High Court's ruling and reduced her share to one quarter of the assets. The complainants, representing the victim, submitted a communication to the African Commission in September 2009, alleging violations of the African Charter arising from the Court of Appeal's decision.

Issues

  1. Whether the African Commission has jurisdiction to entertain a communication challenging a decision of the Kenyan Court of Appeal.
  2. Whether the complainants exhausted local remedies as required by Article 56(5) of the African Charter.
  3. Whether the communication was submitted within a reasonable period as required by Article 56(6) of the African Charter.

Orders

  • Communication declared inadmissible for failing to comply with Article 56(6) of the African Charter.
  • Decision to be notified to the parties.
  • Communication to be attached to the Annual Activity Report in accordance with Rule 107(3) of the Rules of Procedure.

Rules and key headnotes

Human Rights — Jurisdiction of African Commission — Competence to Review National Court Decisions
The African Commission has jurisdiction to determine communications alleging violations of the African Charter by State Parties where a prima facie case is established, without requiring evidence of systematic violations. The Commission does not act as an appellate body but assesses whether national court decisions comply with the State's obligations under the African Charter.
Administrative Law — Exhaustion of Local Remedies — Discretionary Remedies
An application for review to a court of appeal that exercises purely discretionary power to review its own decisions is not a mandatory local remedy that must be exhausted before submitting a communication to the African Commission. Only mandatory remedies sought from courts of a judicial nature must be exhausted.
Administrative Law — Exhaustion of Local Remedies — Exceptional Remedies
Where a remedy has been attempted before the highest court, use of another remedy with essentially the same objective, such as a fundamental rights application to a lower court, is not required. Such exceptional remedies do not constitute local remedies that must be exhausted.
Administrative Law — Exhaustion of Local Remedies — Quasi-Judicial Bodies
Quasi-judicial bodies such as human rights commissions and public complaints committees do not constitute judicial remedies within the meaning of Article 56(5) of the African Charter. Complainants are not required to approach such bodies before submitting a communication to the African Commission.
Administrative Law — Reasonable Period for Submission — Article 56(6) of African Charter
A communication submitted thirty-one months after the exhaustion of local remedies, without any explanation for the delay, does not meet the requirement of submission within a reasonable period under Article 56(6) of the African Charter. While the Charter does not specify a fixed period, the African Commission interprets reasonableness on a case-by-case basis, drawing inspiration from the six-month standard in other regional human rights instruments.

Legislation cited (21)

  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 18(3)
  • African Charter on Human and Peoples' Rights Article 19
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56(1)
  • African Charter on Human and Peoples' Rights Article 56(2)
  • African Charter on Human and Peoples' Rights Article 56(3)
  • African Charter on Human and Peoples' Rights Article 56(4)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • African Charter on Human and Peoples' Rights Article 56(7)
  • African Charter on Human and Peoples' Rights Article 45
  • African Charter on Human and Peoples' Rights Article 60
  • African Charter on Human and Peoples' Rights Article 61
  • Kenyan Constitution Section 84
  • Kenyan Constitution Section 84(1)
  • American Convention on Human Rights Article 56(1)(b)
  • European Convention for the Protection of Human Rights and Fundamental Freedoms Article 36(1)

Cases cited (12)

  • Mahinda v Kenya Power and Lighting Company Ltd (2005) 2 EA 102 (CAK)
  • Musiara v Ntimama (2005) 1 EA 317 (CAK)
  • Serbians Loans, PCIJ, Ser. A. nos 20-1
  • Fisheries Case, ICJ Reports (1951)
  • Interights v Islamic Republic of Mauritania (Communication 242 of 2001)
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2007) Eklr
  • Cudjoe v Ghana (Communication 221 of 1998)
  • Alfred Cudjoe v Ghana (Communication 221 of 1998)
  • Good v Botswana (Communication 313 of 2005)
  • Amnesty International v Sudan (Communication 48 of 1990)
  • Wójcik v. Poland, App. no. 26757/95
  • Michael Mujuru v Zimbabwe (Communication 308 of 2005)

Full judgment

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

Echaria v Kenya (Communication 375 of 2009) [2011] ACHPR 89 (5 November 2011)
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.