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Ngoge and Associates Advocates v Attorney General of the Republic of Kenya (Application No.37 of 2022)

East African Court of Justice · [2024] EACJ 10 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend pleadings and consolidate references, arising from Reference No. 12 of 2022
Decision
Application and underlying Reference dismissed for lack of jurisdiction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice lacks jurisdiction ratione materiae to hear claims concerning the African Charter on Human and Peoples' Rights and the African Commission, as these fall outside the Treaty for the Establishment of the East African Community. The Court's jurisdiction under Articles 23 and 27 of the Treaty is limited to interpretation and application of the Treaty itself. The African Commission is an independent body, not an organ or institution of the Community. The application was also time-barred under Article 30(2) of the Treaty, having been filed five years after the applicant last heard from the African Commission.

Outcome

Application and underlying Reference dismissed for lack of jurisdiction

Facts

The applicant, a Kenyan advocate, challenged the 2012 appointment of the Speaker of Kenya's 9th Parliament through Kenyan courts unsuccessfully. He then lodged Communication No. 432 of 2012 with the African Commission on Human and Peoples' Rights. The African Commission accepted the communication but did not determine it on merits. The applicant last heard from the African Commission on 16 March 2017. Five years later, on 11 March 2022, he filed Reference No. 12 of 2022 in the East African Court of Justice seeking remedies for the African Commission's alleged inaction and violations of his rights under the Kenyan Constitution and the EAC Treaty. He then filed this application seeking leave to amend pleadings and consolidate three references.

Issues

  1. Whether the East African Court of Justice has jurisdiction to hear and determine the Application
  2. Whether the References in question should be consolidated

Orders

  • Preliminary objection by the Respondent sustained.
  • Application No. 37 of 2022 dismissed.
  • Reference No. 12 of 2022 dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Jurisdiction — Ratione Materiae — Limits of Treaty-Based Courts
The jurisdiction of the East African Court of Justice is explicitly defined by the Treaty for the Establishment of the East African Community and extends only to matters related to the interpretation and application of that Treaty. The Court has no jurisdiction over matters concerning separate international instruments such as the African Charter on Human and Peoples' Rights or independent bodies such as the African Commission, even where a Partner State has incorporated such instruments into domestic law.
Jurisdiction — Domestic Incorporation of International Law — Effect on Court Jurisdiction
The incorporation of an international treaty into a Partner State's domestic law through constitutional provision does not automatically expand the jurisdiction of the East African Court of Justice to encompass disputes arising under that treaty. An independent international body does not become an organ of a Partner State merely because the treaty establishing it has been internalized under domestic law.
Time Limitation — Article 30(2) of EAC Treaty — Continuing Breach Doctrine
Proceedings under Article 30 of the Treaty for the Establishment of the East African Community must be instituted within two months of the action complained of or of the day it came to the knowledge of the complainant. The Treaty does not recognize the doctrine of continuing breach or violation to extend this time limit. A claimant cannot avoid the time limitation by alleging a continuing breach outside the two-month period.
Jurisdiction — Fundamental Nature — Effect of Lack of Jurisdiction
Jurisdiction is the most fundamental issue a court faces in any trial and is the foundation upon which the judicial process is constructed. Without jurisdiction, a court cannot exercise any of the powers bestowed upon it by its constituting instrument and cannot proceed to determine any other issue, including ancillary applications such as consolidation of proceedings.

Cases cited (7)

  • Attorney General of Uganda v Omar Awadh and 6 Others (EACJ Appeal No. 2 of 2012)
  • Omoke v Kenyatta and 83 Others (Petition 11 of 2021) [2021] KESC 27
  • Attorney General of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
  • Modern Holdings (EA) Ltd v Kenya Ports Authority (EACJ Reference No. 1 of 2008)
  • Christopher Mtikila and Others v Attorney General of Tanzania (EACJ Reference No. 2 of 2007)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of Tanzania v African Network of Animal Welfare (EACJ Appeal No. 3 of 2011)

Full judgment

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

Ngoge and Associates Advocates v Attorney General of the Republic of Kenya (Application No.37 of 2022) [2024] EACJ 10 (26 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.