Wakilii

Mahok v Attorney General of the Republic of South Sudan (Application 20 of 2018)

East African Court of Justice · [2019] EACJ 30 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 19 of 2018
Decision
Application for interim orders dismissed; underlying Reference to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court dismissed the application for interim orders. It held that the Reference was not time-barred as it was filed within two months of the impugned acts (failure to release the subject following the Revitalized Agreement and Republican Order, and closure of bank accounts). While the matter raised serious triable issues concerning alleged violations of domestic law and the Treaty, the Court found that the Applicant had not established irreparable injury that could not be compensated by damages. Any loss from frozen accounts and closed businesses was quantifiable and compensable. The Court directed that the underlying Reference be fixed for hearing forthwith.

Outcome

Application for interim orders dismissed; underlying Reference to proceed to hearing

Facts

Garang Michael Mahok applied for interim orders on behalf of Kerbino Agok Wol, a South Sudanese citizen and businessman who had been detained since 27 April 2018 without charge. The Applicant alleged that despite the Revitalized Agreement on the Resolution of the Conflict in South Sudan (signed 12 September 2018) and Republican Order No. 17 of 27 September 2018 directing release of political detainees, Mr. Wol remained in detention. Additionally, on 11 October 2018, the Respondent ordered closure of Mr. Wol's bank accounts and businesses, including his security company, restaurant, and conference facility. The Applicant sought orders for Mr. Wol's release or arraignment before a competent court, and reversal of the business closures and account freezes. By the hearing date, Mr. Wol had been brought before a court in South Sudan and had limited access to family and lawyers, though the Applicant contested whether due process was being followed.

Issues

  1. Whether the Reference is time-barred under Article 30(2) of the Treaty.
  2. Whether the Court should grant interim orders directing the Respondent to release the subject or arraign him before a competent court.
  3. Whether the Court should grant interim orders directing the Respondent to reverse the closure of the subject's businesses and the freezing of his bank accounts.
  4. Whether the Applicant has established a serious triable issue.
  5. Whether the Applicant would suffer irreparable injury if interim orders are not granted.
  6. Whether the balance of convenience favours the grant of interim orders.

Orders

  • The interim orders sought by the Applicant are not granted.
  • Application No. 20 of 2018 is dismissed.
  • The costs of the Application shall abide the outcome of Reference No. 19 of 2018.
  • Reference No. 19 of 2018 is to be fixed for hearing forthwith.

Rules and key headnotes

Interim Orders — Time Bar — Computation of Limitation Period
Where a Reference challenges not the initial act of detention but subsequent failures to comply with legal obligations arising from later agreements and orders, the limitation period under Article 30(2) of the Treaty runs from those subsequent acts, not from the original detention.
Interim Orders — Serious Triable Issue — Test
Within the context of East African Community law, a serious triable issue exists where the Reference raises a legitimate legal question under the Court's legal regime as set out in Article 30(1), specifically where it contends that the matter complained of violates national law of a Partner State or infringes any provision of the Treaty. Causes of action before the Court are grounded in the Court's interpretative and enforcement function under Article 23(1) of the Treaty.
Interim Orders — Irreparable Injury — Adequacy of Damages
An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. If damages in the measure recoverable at common law would be an adequate remedy and the respondent would be in a position to pay them, no interim injunction should normally be granted.
Affidavit Evidence — Submissions from the Bar
Statements made by counsel from the bar during a hearing amount to submissions, not evidence, where they are not made under oath. The proper procedure is to file an affidavit containing all factual evidence to be adduced. Where a party fails to file an affidavit in reply, the Court will only consider facts that are not contested by the other party.
Interim Orders — Purpose — Maintenance of Status Quo
An interlocutory injunction is a court order made at an interim stage during trial and is usually issued to maintain the status quo until judgment can be made. Where the acts complained of have already occurred and been completed, granting interim orders to reverse those acts does not serve the purpose of maintaining the status quo.

Legislation cited (12)

  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 30(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)
  • East African Court of Justice Rules of Procedure 2013 Rule 1(2)
  • East African Court of Justice Rules of Procedure 2013 Rule 21
  • East African Court of Justice Rules of Procedure 2013 Rule 73
  • East African Court of Justice Rules of Procedure 2013 Rule 43(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 23
  • Transitional Constitution of the Republic of South Sudan 2011 Article 19
  • East African Community Common Market Protocol Article 15(11)
  • African Charter on Human and People's Rights Article 14

Cases cited (10)

  • Forum pour le Renforcement de la Societe Civile and 4 Others v Attorney General of Burundi (Application No. 16 of 2016)
  • Ololosokwan Village Council & 3 Others v Attorney General of the United Republic of Tanzania (Application No. 15 of 2017)
  • British American Tobacco v Attorney General of the Republic of Uganda (Application No. 13 of 2017)
  • American Cyanamid Company v Ethicon Limited [1975] AC 396
  • Hassan Basajjabalaba & Another v Attorney General of the Republic of Uganda (Application No. 9 of 2018)
  • Sitenda Sebalu v Secretary General of the East African Community & Others (Reference No. 1 of 2010)
  • Simon Peter Ochieng & Another v Attorney General of the Republic of Uganda (Reference No. 11 of 2013)
  • Prof. Peter Anyang' Nyong'o & 10 Others Vs. The Attorney General of the Republic of Kenya & 3 Others (supra)
  • Timothy Alvin Kahoho v Secretary General of the East African Community (Application No. 5 of 2012)
  • De Klerk v Minister of Police [2019] ZACC 32

Full judgment

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

Mahok v Attorney General of the Republic of South Sudan (Application 20 of 2018) [2019] EACJ 30 (5 December 2019)
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.