Wakilii

Mbuvi v Attorney General of Republic of Kenya (Application No.25 of 2022)

East African Court of Justice · [2024] EACJ 11 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim conservatory orders arising from Reference No. 34 of 2022 challenging the Supreme Court of Kenya's decision dismissing the Applicant's appeal against his impeachment as Governor of Nairobi City County
Decision
Application partly allowed. Court affirmed jurisdiction to assess Treaty compliance but declined to stay execution of Supreme Court of Kenya judgment. Applicant granted leave to amend Reference.

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 while it lacks jurisdiction to conduct an appellate merit review of decisions of the Supreme Court of Kenya, it retains jurisdiction to assess whether the conduct and decisions of Partner State courts, including apex courts, comply with the Treaty for the Establishment of the East African Community. The Court applied the doctrine of separability to distinguish between claims requiring merit review (outside its jurisdiction) and claims alleging Treaty violations (within its jurisdiction). The Court declined to grant interim orders staying execution of the Supreme Court judgment, as doing so would exceed its Treaty mandate and affront the constitutional authority of Kenya's apex court.

Outcome

Application partly allowed. Court affirmed jurisdiction to assess Treaty compliance but declined to stay execution of Supreme Court of Kenya judgment. Applicant granted leave to amend Reference.

Facts

The Applicant, Mike Sonko Mbuvi, was Governor of Nairobi City County until his impeachment in November 2020. He challenged his impeachment through multiple consolidated petitions in the High Court of Kenya, which were dismissed. He appealed to the Court of Appeal and the Supreme Court of Kenya. On 15 July 2022, the Supreme Court summarily dismissed his appeal, effectively barring him from participating in the August 2022 general elections. The Applicant then filed Reference No. 34 of 2022 before the East African Court of Justice, alleging that the Kenyan judiciary, including the Supreme Court, violated the Treaty for the Establishment of the East African Community by conducting proceedings that breached the rule of law, natural justice, and principles of transparency and accountability. He sought interim conservatory orders staying execution of the Supreme Court judgment pending determination of his Reference. The Respondent raised a preliminary objection challenging the Court's jurisdiction.

Issues

  1. Whether the East African Court of Justice has jurisdiction to hear and determine an application challenging a decision of the Supreme Court of Kenya.
  2. Whether the Court has jurisdiction to conduct an appellate merit review of decisions of Partner State apex courts.
  3. Whether the Court has jurisdiction to assess Partner State court decisions for compliance with the Treaty for the Establishment of the East African Community.
  4. Whether the Applicant is entitled to interim conservatory orders staying the execution and enforcement of the Supreme Court of Kenya's judgment.
  5. Whether the Supreme Court of Kenya's conduct and decision violated Articles 6(d) and 7(2) of the Treaty.

Orders

  • Preliminary objection upheld in part and dismissed in part.
  • Prayer No. 3 for interim conservatory orders staying execution of the Supreme Court of Kenya judgment dismissed.
  • Prayer No. 4 vacated as rendered moot by availability of the Supreme Court judgment.
  • Prayer No. 5 granted — Applicant granted leave to amend, file, and serve an amended Reference in accordance with the Rules.
  • Prayer No. 6 granted — costs of and incidental to the Application to be in the cause.
  • Prayer No. 7 dismissed as overtaken by events (elections already held).

Rules and key headnotes

Jurisdiction of Regional Courts — Distinction Between Treaty Compliance Review and Appellate Merit Review
The East African Court of Justice has jurisdiction under Articles 27(1), 6(d), 7(2), and 33(2) of the Treaty for the Establishment of the East African Community to interpret the Treaty and assess whether Partner State actions, including decisions of national courts, comply with Treaty obligations. However, the Court does not possess jurisdiction to conduct appellate merit reviews of Partner State court decisions or to evaluate the correctness of such decisions on their merits.
Doctrine of Separability — Partial Jurisdiction Over Mixed Claims
Where an application before the East African Court of Justice contains both matters within its jurisdiction (Treaty compliance) and matters outside its jurisdiction (appellate merit review), the Court applies the doctrine of separability to limit its consideration to the valid elements over which it has jurisdiction, rather than invalidating the entire reference.
Supremacy of Treaty Law — Relationship Between Regional and National Courts
The supremacy of Partner State apex courts within their domestic jurisdictions does not preclude the East African Court of Justice from assessing whether those courts' actions comply with the Treaty for the Establishment of the East African Community. Under Articles 23, 27, and 33(2) of the Treaty, and Articles 26 and 27 of the Vienna Convention on the Law of Treaties, Partner State organs, including national courts, remain subject to Treaty obligations and may not invoke domestic law to justify failure to perform Treaty obligations.
Interim Relief — Limits on Regional Court Powers to Stay National Court Judgments
While the East African Court of Justice may have grounds to grant interim conservatory orders based on established principles (prima facie case, irreparable harm, balance of convenience), it cannot issue orders staying the execution or enforcement of final decisions of Partner State apex courts, as doing so would exceed its Treaty mandate under Article 30(3) and affront the constitutional authority of those courts. The Court's jurisdiction to pronounce on Treaty compliance does not extend to pausing execution of decisions by revisiting their substance or merits.
Uncontroverted Allegations — Effect of Failure to File Reply
Under Rule 54 of the East African Court of Justice Rules of the Court, 2019, a party served with a motion must file a reply not less than seven days before the hearing date. Where a respondent fails to file a reply, factual allegations in the application remain unrebutted and, pursuant to Rule 41, uncontroverted factual assertions are deemed admitted. However, the Court must still consider whether the application meets the requisite criteria for the grant of the orders sought.

Legislation cited (19)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(4)
  • Treaty for the Establishment of the East African Community Article 9(4)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 25(3)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(3)
  • Treaty for the Establishment of the East African Community Article 33(2)
  • Treaty for the Establishment of the East African Community Article 39
  • East African Court of Justice Rules of the Court, 2019 Rule 41
  • East African Court of Justice Rules of the Court, 2019 Rule 52
  • East African Court of Justice Rules of the Court, 2019 Rule 54
  • East African Court of Justice Rules of the Court, 2019 Rule 84
  • Constitution of the Republic of Kenya Article 25
  • Constitution of the Republic of Kenya Article 163(1)
  • Constitution of the Republic of Kenya Article 163(7)
  • Vienna Convention on the Law of Treaties Article 26
  • Vienna Convention on the Law of Treaties Article 27

Cases cited (8)

  • Sitenda Sebalu v Secretary General of the EAC and 3 Others (EACJ Reference No. 1 of 2010)
  • Martha Wangari Karua v IEBC (EACJ Reference No. 20 of 2018)
  • Mpozayo Christophe v Attorney General of the Republic of Rwanda (EACJ Reference No. 10 of 2014)
  • East African Civil Society Organization Forum v Attorney General of Burundi and Others (EACJ Reference No. 4 of 2016)
  • Martha Wangari Karua vs Attorney General of Kenya and Others
  • Francis Ngaruko v Attorney General of Burundi (EACJ Application No. 9 of 2019)
  • Mike Mbuvi Sonko v Clerk, County Assembly of Nairobi City and Others (Supreme Court Petition No. 11 of 2022)
  • Anyang' Nyong'o and Others v Attorney General of the Republic of Kenya and 5 Others (EACJ Application No. 1 of 2006)

Full judgment

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

Mbuvi v Attorney General of Republic of Kenya (Application No.25 of 2022) [2024] EACJ 11 (28 November 2024)
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.