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Mjawasi and Others v A.G. of Republic of Kenya (Reference 2 of 2010)

East African Court of Justice · [2011] EACJ 10 · 2011 Reference Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice alleging breach of Treaty provisions; Respondent raised preliminary objections to jurisdiction and admissibility
Decision
Reference struck out on the ground that the Treaty cannot be applied retrospectively to events occurring before its entry into force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice has jurisdiction to interpret and apply Treaty provisions and is not barred by res judicata or the exhaustion of local remedies rule. However, the Treaty cannot be applied retrospectively to acts or facts that occurred before its entry into force in 2000. The Reference was struck out because the Claimants' claims arose from events predating the Treaty, and no contrary intention for retrospective application was established.

Outcome

Reference struck out on the ground that the Treaty cannot be applied retrospectively to events occurring before its entry into force

Facts

The Claimants, 749 former employees of the defunct East African Community, alleged that the Kenya Government failed to pay them pension and terminal benefits for services rendered. They filed suit in the Kenya High Court in 1997, which was dismissed. In 2010, they filed a Reference in the East African Court of Justice alleging that Kenya's continued refusal to pay violated Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community. The Respondent raised preliminary objections including lack of jurisdiction, res judicata, failure to exhaust local remedies, and non-retrospective application of the Treaty. The Claimants' employment and the alleged breaches occurred before the Treaty entered into force in 2000.

Issues

  1. Whether the Court has jurisdiction to hear and determine the Reference.
  2. Whether the matter is res judicata.
  3. Whether the Reference is inadmissible for failure to exhaust local remedies.
  4. Whether the East African Community Treaty of 2000 can be applied retrospectively to acts occurring before its entry into force.
  5. Whether the Claimants' statements are mere allegations without proof.
  6. Whether the Objectives of the Treaty under Article 5 provide for redress of previous injustices.

Orders

  • Reference struck out.
  • Costs awarded to the Respondent.

Rules and key headnotes

Treaty Interpretation — Jurisdiction of the East African Court of Justice — Human Rights Allegations
The East African Court of Justice has jurisdiction under Article 27(1) of the Treaty to determine whether a Partner State's conduct constitutes a breach of Treaty provisions, even where the Reference contains allegations of human rights violations, provided the Court is not being asked to adjudicate on human rights violations per se or to exercise appellate jurisdiction.
Res Judicata — Application to Treaty Interpretation References
The doctrine of res judicata does not bar a Reference in the East African Court of Justice where the issues before the Court concern interpretation and application of Treaty provisions, even if the same parties previously litigated related factual matters in a national court applying domestic law, because the legal issues are not directly and substantially the same.
Exhaustion of Local Remedies — Treaty Interpretation References
There is no requirement to exhaust local remedies before filing a Reference under Article 30 of the Treaty for the Establishment of the East African Community. The Treaty confers direct access to the East African Court of Justice for interpretation and application of Treaty provisions, and there is no local remedy to exhaust for such matters.
Treaty Interpretation — Retrospective Application — Vienna Convention
Under Article 28 of the Vienna Convention on the Law of Treaties, a treaty does not bind a party in relation to any act or fact which took place before the date of entry into force of the treaty, unless a different intention appears from the treaty or is otherwise established. The Treaty for the Establishment of the East African Community, which entered into force in 2000, cannot be applied retrospectively to acts or omissions occurring before that date in the absence of express contrary intention.

Legislation cited (10)

  • 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 27
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 33(2)
  • Treaty for the Establishment of the East African Community Article 34
  • Vienna Convention on the Law of Treaties Article 28
  • African Charter on Human and Peoples Rights Article 50

Cases cited (3)

  • James Katabazi & 21 Others v The Attorney General of the Republic of Uganda (Reference No. 1 of 2007)
  • HCCS No. 1879 of 1997
  • Professor Peter Anyang Nyongo & Others v The Attorney General of Kenya and Others (Reference No. 1 of 2006)

Full judgment

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

Mjawasi and Others v A.G. of Republic of Kenya (Reference 2 of 2010) [2011] EACJ 10 (29 September 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.