Wakilii

Kahoho v Secretary General of The East African Community (Application 5 of 2012)

East African Court of Justice · [2012] EACJ 23 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim injunction arising from Reference No. 1 of 2012
Decision
Application for interim injunction dismissed; underlying Reference to proceed to full hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for an interim injunction to restrain implementation of Summit directives pending determination of the underlying Reference. While the applicant established a prima facie case raising serious questions about whether the Summit breached Treaty provisions by issuing directives directly to the Secretariat, the applicant failed to prove irreparable injury and the balance of convenience favoured the respondent, as substantial funds had already been expended implementing the directives. Article 38(2) of the Treaty does not operate as an automatic injunction.

Outcome

Application for interim injunction dismissed; underlying Reference to proceed to full hearing

Facts

The applicant, a Tanzanian citizen, filed Reference No. 1 of 2012 challenging Summit directives issued at the 13th Ordinary Meeting in Bujumbura, Burundi, alleging they breached Treaty provisions. The directives concerned approval of a Protocol on Privileges and Immunities, production of a roadmap for strengthening institutions, formulation of an action plan to operationalise expert recommendations, and proposing a model structure for the East African Political Federation. After filing the Reference, the applicant discovered that the Respondent had convened a Council of Ministers meeting and allocated USD 109,020 for formulating a Model Work Plan towards the EAC Political Federation. The applicant sought an interim injunction to restrain implementation of the directives pending determination of the Reference. The Respondent opposed, asserting the directives were consistent with Treaty provisions and that the allocated funds had already been utilized.

Issues

  1. Whether the applicant established a prima facie case with a probability of success for the grant of an interim injunction.
  2. Whether the applicant would suffer irreparable injury if the interim injunction were refused.
  3. Whether the balance of convenience favoured the grant of an interim injunction.
  4. Whether Article 38(2) of the Treaty operates as an automatic injunction once a dispute has been referred to the Court.

Orders

  • Application dismissed.
  • Costs of the application to abide the outcome of Reference No. 1 of 2012.
  • Registrar requested to ensure that the hearing of Reference No. 1 of 2012 is fast tracked.

Rules and key headnotes

Interlocutory Injunctions — Conditions for Grant
For a temporary injunction to issue, the applicant must satisfy three sequential conditions: first, show a prima facie case with a probability of success; second, demonstrate that irreparable injury would be suffered which cannot adequately be compensated by damages; and third, if the court is in doubt, the balance of convenience must favour the applicant.
Interlocutory Injunctions — Prima Facie Case
To establish a prima facie case for an interim injunction, the applicant must show that the claim is not frivolous or vexatious and that there are serious questions to be tried. The court does not delve into the merits or determine difficult questions of law at the interlocutory stage.
Interlocutory Injunctions — Irreparable Injury
Irreparable injury cannot be presumed and must be proved by evidence. A mere assertion that the reference will be rendered nugatory if the injunction is refused, without demonstrating how implementation of the disputed acts will necessarily result in irreparable injury, is insufficient to satisfy the second condition for grant of an interim injunction.
Interlocutory Injunctions — Balance of Convenience
Balance of convenience requires weighing the prejudice to the applicant if the injunction is refused against the prejudice to the respondent if the order is granted. Where the respondent has substantially implemented the disputed decision and expended public funds, and the status quo no longer exists, the balance of convenience favours refusing the injunction.
Treaty Interpretation — Article 38(2) and Automatic Injunction
Article 38(2) of the Treaty for the Establishment of the East African Community, which provides that Partner States shall refrain from action detrimental to or aggravating a dispute referred to the Court, does not operate as an automatic injunction. The grant of an injunction remains a function of the Court's discretionary power to be exercised on the facts of each case.

Legislation cited (16)

  • 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 11(1)
  • Treaty for the Establishment of the East African Community Article 38(2)
  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 71(b)
  • Treaty for the Establishment of the East African Community Article 71(c)
  • Treaty for the Establishment of the East African Community Article 71(d)
  • Treaty for the Establishment of the East African Community Article 71(l)
  • Treaty for the Establishment of the East African Community Article 73
  • Treaty for the Establishment of the East African Community Article 123(6)
  • Treaty for the Establishment of the East African Community Article 138
  • Treaty for the Establishment of the East African Community Article 151
  • East African Court of Justice Rules of Procedure 2010 Rule 21
  • East African Court of Justice Rules of Procedure 2010 Rule 41
  • East African Court of Justice Rules of Procedure 2010 Rule 73

Cases cited (7)

  • Giella v Cassman Brown & Co. Ltd (1973) E.A 358
  • East African Law Society and 3 Others v Attorney General of Kenya and 3 Others (Reference No. 3 of 2007)
  • Professor Peter Anyang' Nyongo and 10 Others v Attorney General of Kenya and 5 Others (Reference No. 1 of 2006)
  • East African Law Society and 4 Others v Attorney General of Kenya and 3 Others (Application No. 9 of 2007)
  • Mary Arividza and Okotch Mondoh v Attorney General of Kenya and Secretary General of the EAC (Application No. 3 of 2010)
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] E.A 86
  • American Cyanamid v Ethicon [1975] ALL ER 504

Full judgment

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

Kahoho v Secretary General of The East African Community (Application 5 of 2012) [2012] EACJ 23 (19 July 2012)
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.