Wakilii

Nyong'o and Others v Attorney General of Republic of Kenya and Others (Application no. 1 of 2006)

East African Court of Justice · [2006] EACJ 3 · 2006 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under Article 30 of the Treaty for the Establishment of the East African Community challenging the legality of Kenya's nomination process for representatives to the East African Legislative Assembly, with application for interim injunction
Decision
Interim injunction granted preventing nine persons from taking office as EALA members pending final determination of the reference challenging the legality of their election

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that it has jurisdiction under Article 27(1) and Article 30 of the Treaty to determine whether Kenya's election process for EALA representatives infringed Article 50. The 2nd, 5th and 6th Respondents were wrongly joined and struck off. An interim injunction was granted restraining recognition of the nine elected persons as EALA members until final determination, as applicants showed a prima facie case and risk of irreparable damage to the legitimacy of the EALA.

Outcome

Interim injunction granted preventing nine persons from taking office as EALA members pending final determination of the reference challenging the legality of their election

Facts

Applicants challenged the process by which Kenya nominated nine representatives to the East African Legislative Assembly, contending that no proper election was held under Article 50 of the Treaty for the Establishment of the East African Community. They alleged the process was flawed in substance, law and procedure. The reference was filed on 9 November 2006 along with an ex parte application for interim orders to prevent the swearing-in of the nine persons on 29 November 2006. Respondents raised preliminary objections to the Court's jurisdiction and to the joinder of the 2nd, 5th and 6th Respondents (Clerk to Kenya National Assembly, Vice President as Leader of Government Business, and Chairman of NARC-Kenya political party). The Court heard all three issues together due to urgency.

Issues

  1. Whether the East African Court of Justice has jurisdiction to determine the legality of the process by which Kenya's representatives to the EALA were nominated and elected.
  2. Whether the 2nd, 5th and 6th Respondents were properly joined as parties to the reference.
  3. Whether an interim injunction should be granted restraining the swearing-in of Kenya's elected representatives to the EALA pending determination of the reference.

Orders

  • The 2nd, 5th and 6th Respondents struck off as parties with costs.
  • Interim injunction granted restraining the 3rd and 4th Respondents from recognizing the nine named persons as duly elected Members of the EALA or permitting them to participate in any function of the EALA until final determination of the reference.
  • Costs of the application to be in the cause.

Rules and key headnotes

Treaty Interpretation — Jurisdiction of East African Court of Justice — Interpretation and Application of Treaty
The East African Court of Justice has initial jurisdiction under Article 27(1) of the Treaty for the Establishment of the East African Community over the interpretation and application of the Treaty, including jurisdiction to determine whether the process by which a Partner State elects representatives to the East African Legislative Assembly and the election rules used are unlawful or infringe Article 50 of the Treaty.
Locus Standi — Proper Parties to Treaty Reference — Article 30 Scope
A reference under Article 30 of the Treaty for the Establishment of the East African Community is not an action in tort for misfeasance but an action to challenge the legality under the Treaty of an activity of a Partner State or institution of the Community. Natural persons sued in their official capacities who are not Partner States or Community institutions are wrongly joined and should be struck off.
Interim Injunctions — Prima Facie Case and Irreparable Damage — Community Organs
An interim injunction will be granted where the applicant shows a prima facie case with probability of success and that irreparable damage would result if the order is not made. Where one third of the members of a legislative assembly may not have been legally elected, both the applicants and the institution itself stand to suffer irreparable damage if the allegedly illegally elected members take office before the legality of their election is determined.

Legislation cited (5)

  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 50
  • Treaty for the Establishment of the East African Community Article 52(1)
  • Treaty for the Establishment of the East Africa Community (Election of Members of the Assembly) Rules 2001

Full judgment

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

Nyong'o and Others v Attorney General of Republic of Kenya and Others (Application no. 1 of 2006) [2006] EACJ 3 (27 November 2006)
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.