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Ngoge and Associates Advocates v Attorney General of the Republic of Kenya (Application No.36 of 2022)

East African Court of Justice · [2024] EACJ 9 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 55 of 2022 challenging decisions of Kenyan courts
Decision
Application for interim orders dismissed; main Reference No. 55 of 2022 remains pending

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 it has jurisdiction to determine whether decisions of national courts violate the Treaty for the Establishment of the East African Community, even though it is not an appellate court over Partner State courts. However, the Court dismissed the application for interim orders because the applicant failed to demonstrate irreparable injury that could not be compensated by damages, and the prayer to stay taxation of costs not yet filed constituted an abuse of process.

Outcome

Application for interim orders dismissed; main Reference No. 55 of 2022 remains pending

Facts

The Applicant, a Kenyan advocate, filed Reference No. 55 of 2022 challenging decisions by Kenyan courts (including Supreme Court Petition of Appeal No. 33 of 2014) which led to the auctioning of his law firm. He alleged these decisions violated Articles 6(d) and 7(2) of the EAC Treaty. The Applicant then filed this application seeking interim orders to restrain Kenyan courts from taxing and enforcing bills of costs, proceeding with the underlying suit (Nairobi HCCC No. 599 of 2010), entering judgment against him, and evicting him from business premises, all pending determination of the main Reference. The Respondent opposed on grounds that the Court lacked jurisdiction and that the application was premature as local remedies had not been exhausted.

Issues

  1. Whether the East African Court of Justice has jurisdiction to entertain Reference No. 55 of 2022 from which Application No. 36 of 2022 arises.
  2. Whether the interim orders sought by the Applicant can be granted.

Orders

  • Application dismissed.
  • Costs to abide the outcome of Reference No. 55 of 2022.

Rules and key headnotes

East African Court of Justice — Jurisdiction — Interpretation and Application of Treaty
The East African Court of Justice has jurisdiction under Articles 27(1) and 30(1) of the Treaty to interpret and apply the provisions of the Treaty and to determine whether any act, regulation, directive, decision or action of a Partner State or an institution of the Community is unlawful or is an infringement of the provisions of the Treaty, once there is an allegation of an infringement of the Treaty provisions.
East African Court of Justice — Jurisdiction — Review of National Court Decisions
The East African Court of Justice is not a court of appeal vis-à-vis decisions of the municipal courts and tribunals of Partner States and has no jurisdiction to review the judicial decisions and judgments of those municipal courts, but it is squarely within the mandate of the Court to take up jurisdiction to hear and determine a matter wherein a resident of a Partner State alleges that a Partner State, or any of its organs including its courts, has violated the Treaty.
East African Court of Justice — Exhaustion of Local Remedies — Not Mandatory
There is no express provision barring the East African Court of Justice from determining any matter that is otherwise properly before it merely because the applicant has not exhausted local remedies, and Article 30(1) of the Treaty has not provided the exhaustion of domestic remedies as a condition for the admissibility of petitions brought by individuals before the Court.
Interim Orders — Trifold Test for Grant
Applications for interim orders before the East African Court of Justice are subjected to a trifold test: first, the Court needs to be satisfied that there is a serious question to be tried on the merits depicting substance and reality; secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and thirdly, if the Court is in doubt, it will decide the application on the balance of convenience.
Interim Orders — Irreparable Injury — Burden of Proof
An applicant seeking interim orders bears the onus probandi to establish that the harm incurred if the order sought is not granted cannot be compensated by damages, and failure to discharge this burden renders the court unable to grant the injunctive orders sought.
Interim Orders — Abuse of Process — Stay of Non-Existent Order
A prayer seeking to stay taxation of costs yet to be filed constitutes an abuse of the court's process, as the court cannot stay a non-existing order lest its decisions are looked at as meaningless.

Legislation cited (11)

  • 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 9
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 39
  • East African Court of Justice Rules of the Court, 2019 Rule 4
  • East African Court of Justice Rules of the Court, 2019 Rule 84
  • Constitution of Kenya Article 162(1)
  • Constitution of Kenya Article 163(7)

Cases cited (22)

  • Giella v Cassman Brown [1973] EA 258
  • Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
  • ALCON International Limited v Standard Chartered Bank of Uganda and 2 Others (EACJ Appeal No. 3 of 2013)
  • Owners of the Motor Vessels 'Lillian 5' v Caltex Oil (Kenya) Limited [1989] KLR
  • Steven Denis v The Attorney General of Burundi and Others (EACJ Reference No. 3 of 2015)
  • Eric Makala v The Attorney General of Rwanda (EACJ Reference No. 1 of 2017)
  • Mary Ariviza and Another v Attorney General of Kenya and the Secretary General of the East African Community (EACJ Appeal No. 3 of 2012)
  • Peter Odiwuor Ngoge v The Attorney General of the Republic of Kenya (EACJ Application No. 1 of 2022)
  • Samuel Mukira Muhochi v Attorney General of the Republic of Uganda (EACJ Reference No. 5 of 2011)
  • Venant Masenge v The Attorney General of the Republic of Burundi (EACJ Reference No. 9 of 2012)
  • Audace Ngendakumana v The Attorney General of the Republic of Burundi (EACJ Reference No. 11 of 2014)
  • Bonaventure Gasutwa and 3 Others v The Attorney General of the Republic of Burundi (EACJ Reference No. 13 of 2014)
  • Plaxeda Rugumba v The Secretary General of the East African Community and the Attorney General of the Republic of Rwanda (EACJ Reference No. 8 of 2010)
  • Malcom Lukwiya v Attorney General of Uganda and Another (EACJ Reference No. 6 of 2015)
  • The Democratic Party and Mukasa Fred Mbidde v The Secretary General of the East African Community and The Attorney General of Uganda (EACJ Application No. 6 of 2011)
  • Francis Ngaruko v The Attorney General of the Republic of Burundi (EACJ Application No. 3 of 2019)
  • East African Civil Society Organizations' Forum (EACSOF) v The Attorney General of Burundi and Others (EACJ Appeal No. 4 of 2016)
  • Mbidde Foundation Ltd and Margaret Zziwa v Secretary General of the East Africa Community and Attorney General of Republic of Uganda (EACJ Application No. 5 of 2014)
  • Issa Muzamil Sebit and South Sudan Bar Association v The Attorney General of the Republic of South Sudan (EACJ Application No. 2 of 2021)
  • Mary Ariviza and Another v Attorney General of the Republic of Kenya and Another (EACJ Application No. 3 of 2010)
  • E.A Industries v Trufoods [1972] EA 420
  • Castro Pius Shirima v Attorney General of Burundi and 6 Others (EACJ Application No. 11 of 2016)

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.36 of 2022) [2024] EACJ 9 (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.