[2024] EACJ 11


## IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

**FIRST INSTANCE DIVISION**


(Coram: Yohane B. Masara, PJ; Charles O. Nyawello, DPJ; Richard Muhumuza, Richard Wabwire Wejuli & Leonard Gacuko, JJ)

# **APPLICATION NO. 25 OF 2022** (Arising from Reference No.34 of 2022)

MIKE SONKO GIDEON KIOKO MBUVI ....................................

**VERSUS**

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ............................... RESPONDENT

28^TH NOVEMBER 2024

## **RULING OF THE COURT**

#### **A. INTRODUCTION**

- 1. This Application arises from **Reference No. 34 of 2022** filed on 18th June 2022 by the Applicant against the Respondent. The Application was brought under Rules 52 and 84 of the East African Court of Justice Rules of the Court, 2019 ("the Rules") and Article 39 of the Treaty for the Establishment of the East African Community ("the Treaty"). - 2. The Applicant, Mike Sonko Gideon Kioko Mbuvi, is a citizen and resident of the Republic of Kenya whose address of service for purposes of the Reference and of this Application is c/o Wanyanga & Co. Advocates, P. O. BOX 3897-00200, Rose Avenue Apartments, Suite A4, Off Argwings Kodhek Road, Adjacent to 4 Points by Sheraton, Car Park, Hurlinghum, Nairobi. - 3. The Respondent is the Attorney General of the Republic of Kenya, sued in his capacity as the Principal Legal Adviser to the Republic of Kenya, a Partner State of the East African Community. His address of service is c/o Sheria House, 7th Floor, Harambee Avenue. P. O. BOX 40112-00100.

#### **B. REPRESENTATION**

4. The Applicant was represented by Advocates Mr Kennedy Wanyanga, Ochieng Obiri Oginga and Phiney Opiata all of Wanyanga & Co. Advocates, while the Respondent was represented by Thande Kuria, Principal State Counsel and Dan Weche, Senior State Counsel from the Attorney General's Chambers.

### **C. BACKGROUND**

- 5. The Applicant states that he was the Governor of Nairobi City County until 26th November 2020, when a motion for his removal and impeachment was lodged in the County Assembly of Nairobi. He was subsequently impeached from office in 2020, leading him to seek judicial protection and intervention by filing a Petition, **Nairobi High Court Petition No. E425 of 2020.** This Petition was consolidated with **Petition No. E014 of 2021** and **Nairobi High Court Petition No. E005 of 2021,** which was in turn consolidated with multiple other petitions **(E433E007 of 2020; E009 of 2020; E011 of 2021; E012 of 2021; E013 of 2021; E015E019 of 2021 and E021 of 2021)** in the High Court of Kenya. - 6. The High Court dismissed these petitions, prompting the Applicant to challenge the decision at both the Court of Appeal and the Supreme Court of Kenya (SCOK). - 7. On July 15, 2022, the Supreme Court, in **Hon. Mike Mbuvi Sonko vs The Clerk, County Assembly of Nairobi City and Others, Supreme Court Petition No. 11 (E008) of 2022,** summarily dismissed his appeal and reserved its reasons for a later date. - 8. In the instant Application, the Applicant challenges the July 15, 2022 decision of the Supreme Court of Kenya, which dismissed his appeal and effectively barred him from participating in the August 9, 2022 Kenyan General Elections. He alleges that the judicial proceedings were conducted in a manner that violated the rule of law, natural justice, and principles of transparency and accountability. In consequence of which, the Applicant seeks:

- ¹Certification of the matter as urgent and that it be heard ex parte; - II Conservatory orders staying the execution of the orders of the Supreme Court of Kenya Judgment in Supreme Court Petition No 11 Of 2022- Hon Mike Mbuvi Sonko Vs The Clerk, County Assembly of Nairobi City and Others, pending the hearing and determination of this Application and of Reference No 34 of 2022; - iii Orders to issue for the Supreme Court of Kenya to lodge in this Court, certified copies of the final judgment, rulings and record of proceedings in Supreme Court of Kenya Petition No.11 of 2022; - iv That leave be granted for the Applicant to amend his pleadings upon receipt of the certified copies of the said judgment, rulings and record of proceedings; - v That costs of and incidental to the Application be in the cause;and - vi Appropriate relief to arrest the illegality and protect his political rights to contest in the upcoming elections. - 9. The grounds of the Application are elaborately expounded in the Notice of Motion and in the Affidavit in Support of the Application deponed by the Applicant. However, briefly stated, they are that:

- **The Kenyan judiciary, including the Supreme Court, acted unlawfully, disregarding constitutional principles and allowing a miscarriage of justice;** - ii **The Chief Justice, Martha Koome, publicly expressed opinions on his case before the ruling, thereby undermining impartiality. Additionally, that the judge who ruled against him in the High Court is under investigation for corruption, which, in his opinion, tainted the case;** - iii **That the actions by the judiciary contravened Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community, as they selectively persecuted him, curtailing his political rights and freedoms; and** - **iv That in consequence, he faces irreparable harm, as the ruling prevents him from contesting in the upcoming elections and thus requires urgent judicial intervention.** - 10. Noteworthy, the elections have since been held.

#### **D. PRELIMINARY OBJECTION**

11. When the Application came up for hearing, the Respondent raised a preliminary objection posing a jurisdictional challenge that he believed had to be resolved before the merits of the Application could possibly be addressed. On the other hand, the Applicant was eager to proceed with his Application, premised, as he argued, on the pressing nature of the reliefs sought.

- 12. The issue of jurisdiction being a fundamental matter that must be resolved before proceeding to the merits of the Application, after protracted deliberations and discussions with the parties, it was determined that the Court would entertain arguments on both the jurisdiction issue and the merits of the Application. - 13. Should the Court find that it has jurisdiction, then it will proceed to consider the merits of the Application. If, however, the Court determines that it lacks jurisdiction, the proceedings would terminate. - 14. Both parties were directed to address the Court on the issue of jurisdiction as a preliminary matter before delving into the merits of the Application. - 15. Oral submissions in which the Applicant and the Respondent presented their respective positions on whether the Court possessed the requisite jurisdiction to adjudicate the matter were made by Counsel for either party. - 16. We will now consider the submissions, beginning with the arguments on jurisdiction.

#### **a. Respondent's Submissions**

- 17. In his submissions, the Respondent challenged the jurisdiction of the East African Court of Justice (the Court) to entertain the instant matter. He argued that it lacks the authority to review or overturn decisions of national Courts, specifically the Supreme Court of Kenya. - 18. Counsel emphasized that the Court's jurisdiction is confined to the interpretation and Application of the Treaty. He specifically cited Article 27(1) of the Treaty and contended that it restricts the Court's

Application No. 25 of 2022

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role to Treaty interpretation without extending to the oversight or reversal of Partner States' municipal courts' judicial decisions.

- 19. Counsel also asserted that this Court does not possess appellate jurisdiction over national Courts, and thus, it cannot review the merits of decisions made by Kenya's Supreme Court, especially where those decisions have interpreted Kenya's Constitution. - 20. He referenced Articles 163(1) and (7) of the Constitution of the Republic of Kenya, which establish the Supreme Court of Kenya as the highest judicial authority in Kenya, with its decisions binding on all subordinate Courts. This structure, the Respondent argued, creates a judicial hierarchy in Kenya that should not be interfered with by this Court, particularly where the Supreme Court has already adjudicated on similar matters. - 21. To brace his submissions, Counsel for the Respondent cited several cases where this Court has previously ruled on its jurisdictional mandate, including:

**Hon. Sitenda Sebalu vs Secretary General of the EAC and 3 Others, EACJ Reference No. 1 of 2010.** In this case, the Applicant having lost an appeal in the Supreme Court of Uganda, purported to file a further appeal to the Court as an appellate Court, claiming that he still had a right of appeal to the Court under Articles 6, 7(2), 8(1) (c), 23, 27(1) and 30 of the Treaty. The Court held that it does not have appellate jurisdiction over national Courts' decisions.

**Martha Wangari Karua vs IEBC, EACJ Reference No. 20 of 2018,** in which the Court focused on interpretation of Treaty obligations but did not re-evaluate national judicial findings.

**Dr. Mpozayo Christophe vs Attorney General of the Republic of Rwanda, EACJ Reference No. 10 of 2014,** in which the Court recognized the presumption of fair determination by national Courts.

- 22. He submitted that this demonstrated respect for the authority of the highest Court in Partner States. He further contended that wellestablished international principles require respect for decisions made by the apex Courts of Partner States. - 23. Finally, the Respondent argued that the Application before the Court effectively requests the Court to assume an appellate role that is unavailable under the Treaty. That the Court should dismiss the Application on the grounds that the Treaty does not grant it jurisdiction to question or overturn the merits of the Supreme Court of Kenya's decisions.

#### **b. Applicant's Submissions**

- 24. On his part, the Applicant contended that the Court is the appropriate forum for determining whether Kenya's judicial actions align with its obligations under the Treaty. This, he argued, is essential to uphold justice and provide the Applicant with an avenue for redress that is consistent with the objectives of the East African Community. - 25. The Applicant argued that the Court has jurisdiction to hear and determine the Application and the Reference based on the fact that the Court's jurisdiction to interpret and apply the Treaty is anchored on Articles 27(1 ), 6(d) and 7(2) as well as Article 33(2) of the Treaty. These provisions, the Applicant argued, confer upon the Court authority to interpret and determine issues arising under the Treaty,

especially where Partner States' actions may conflict with their Treaty obligations.

- 26. The Applicant invited the Court to note that the Respondent previously invoked the Court's jurisdiction by seeking an extension of time to file a Response and admitted to the Court's jurisdiction in paragraphs 3, 4, and 5 of their Statement of Response. He argued that, having submitted to the Court's jurisdiction, the Respondent is estopped from later contesting it, as it would violate the principle that a party cannot "approbate and reprobate." - 27. He referenced cases which, he submitted, support the Court's jurisdiction over Treaty compliance issues, even where they intersect with municipal Court decisions. These included: - 28. **East African Civil Society Organization Forum vs Attorney General of Burundi and Others, EACJ Reference No. 4 of 2016** in which, he submitted, that Court held that it has a duty to determine a Partner State's international responsibility under the Treaty, including assessing actions by state organs, such as national Courts. - 29. **Martha Wangari Karua vs Attorney General of Kenya and Others** (supra) in which, he submitted, the Court held that it could review decisions of Kenya's Supreme Court to assess compliance with the Treaty, affirming the Court's role in ensuring that Treaty obligations are met. - 30. He also cited the case of **Francis Ngaruko vs Attorney General of Burundi EACJ Application No. 9 of 2019,** to demonstrate that the Court has previously exercised jurisdiction in cases questioning the compliance of Partner State actions with the Treaty. 31. The Applicant was emphatic that this Reference represents his last available avenue for redress, as he has exhausted remedies within Kenya's national legal system and that justice necessitates the Court's intervention to ensure Treaty compliance.

## **c. Court's Determination**

- 32. The primary issue for determination is whether the Court has jurisdiction to hear and determine the matter presented by the Applicant. - 33. The mandate of the Court to assess a Partner State's Court decision for compliance with the Treaty must be distinguished from the question of whether the Court has jurisdiction to evaluate the merits or demerits of such a decision. - 34. Whereas Articles 27(1 ), 6(d) and 7(2) of the Treaty, as well as Article 33(2) of the Treaty, confer upon the Court authority to interpret and determine issues arising under the Treaty, especially where Partner States' actions may conflict with their Treaty obligations, the Treaty and the Court's established jurisprudence affirm that the Court does not possess jurisdiction to conduct appellate merit reviews of Partner State Court decisions. - 35. The distinction between a compliance review and an appellate or merit review is both bold and unmistakable. While the Court can inquire into whether the impugned decision or conduct violated the Treaty, it cannot engage in a substantive review of the merits or correctness of the decision.

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- 36. Pertinent decisions of this Court, including **Martha Wangari Karua vs Attorney General of Kenya and Others** (supra) and **Francis Ngaruko vs Attorney General of Burundi** (supra) affirming this jurisprudence have been rightly cited by the Applicant and we will not re-state them here. - 37. In the instant case, the Applicant seeks various remedies, some of which transcend into a space where the Court is devoid of jurisdiction. The Applicant seeks: - **1 Certification of the matter as urgent and that it be heard ex parte;** - **n Conservatory orders staying the execution of the orders of the supreme Court of Kenya judgment in Supreme Court Petition No 11 Of 2022- Hon Mike Mbuvi Senko vs. The Clerk, County Assembly of Nairobi City and Others, pending the hearing and determination of this Application 25 of 2022 and of Reference No 34 of 2022;** - iii **Orders to issue for the Supreme Court of Kenya to lodge in this Court, certified copies of the final Judgment, Rulings and record of Proceedings in Supreme Court of Kenya Petition No.11 of 2022;** - **iv That leave be granted for the Applicant to amend his pleadings upon receipt of the certified copies of the said judgment, rulings and record of proceedings;** - **v That costs of and incidental to the Application be in the cause;and**

## **vi Appropriate relief to arrest the illegality and protect his political rights to contest in the upcoming elections.**

38. At paragraph 20 of the Notice of Motion and in his Affidavit in support of the Application, the Applicant states:

> **"That the impugned decision ought to be stayed, vacated, varied, and quashed for being illegal, unreasonable, and contrary to express provisions of the law and my legitimate expectation."**

- 39. In paragraphs 6, 7 and 8 of the Notice of Motion, the Applicant impugns the conduct of the SCOK for its alleged contravention of the Treaty. He states that: - **"6. THAT the Applicant is gravely and fundamentally aggrieved by the decision of the Supreme Court of Kenya and in the manner in which the said Court, and the Courts below conducted the said proceedings contrary to the rule of law and the rules of natural justice with the result and miscarriage of justice will be visited upon the Applicant;** - **7. THAT the Judicial arm of the Kenyan Government abdicated its mandate and duties as independent organs of the Kenyan Republic; discharged their constitutional mandate whilst disregarding the purposes of the Kenya constitution and the principles of the Treaty for the establishment of the**

**East African Community including the Bangalore principles on judicial conduct; and**

- **8. That the actions of the judiciary are in breach of Articles 6(d) and 7(2) of the Treaty for the establishment of the East African Community in that the Applicant has been discriminated against and has been selectively persecuted and his fundamental political rights and freedoms illegally, unlawfully and unjustifiably curtailed over a flawed judicial process tainted and, marred by illegalities, lack of transparency, lack of accountability and failure to adhere to the rule of law."** - 40. While the Applicant challenges both the conduct leading to the decision and the decision itself, this Court must clearly delineate the scope of its inquiry. - 41. In the instant case, the remedies sought by the Applicant require a dual assessment: some necessitate a compliance review under the Treaty, while others require a merit review of the SCOK decision. - 42. We are cognizant of the distinction between two aspects of the Applicant's claim: On one hand, allegations of violations of the Treaty, which are within the jurisdiction of the Court, and on the other, the appeal-like challenge to the decision of the Supreme Court of Kenya, which lies outside the scope of this Court's authority. - 43. The adjudication of compliance with the Treaty is severable from an evaluation of the merits of the SCOK's decision.

- 44. The Court's approach to determine the question of jurisdiction raised in this Application rests upon a well-established legal doctrine, the doctrine of separability or severance, which allows for the separation of valid issues from those that fall outside the mandate. Accordingly, while we assert the Court's mandate to review claims of noncompliance with the Treaty, we also recognize the lack of jurisdiction over any claims requiring an appellate review of the SCOK's decision. - 45. The Court does not invalidate the entire reference merely because it partially includes matters outside its jurisdiction. Instead, the Court limits its consideration to the separable and valid elements of the case over which it has jurisdiction concerning alleged violations of the Treaty. In this way, avoidance of an omnibus decision regarding jurisdiction helps to avert the risk of occasioning a miscarriage of justice. - 46. Very importantly therefore, the Court is able to execute its mandate under the Treaty without encroaching upon areas expressly beyond its purview, thereby preserving the integrity of the Court's role under the Treaty while respecting the constitutional authority of Partner State Court decisions, which in this case is the impugned decision of the **SCOK.** - 47. At this point, it is important to address our minds to Articles 6 and 7 of the Treaty which the Applicant contends were infracted. These provisions articulate the foundational and operational principles of the Community, and any alleged breach of these principles falls within the purview of the Court. - 48. In paragraphs 7 and 8 of the Application, the Applicant states:

- "7. THAT the Judicial arm of the Kenyan Government abdicated its mandate and duties as independent organs of the Kenyan Republic; discharged their constitutional mandate whilst disregarding the purposes of the Kenya constitution and the principles of the Treaty for the establishment of the East African Community including the Bangalore principles on judicial conduct. - 8. That the actions of the judiciary are in breach of Articles 6(d) and 7(2) of the Treaty for the establishment of the east African community in that the Applicant has been discriminated against and has been selectively persecuted and his fundamental political rights and freedoms illegally, unlawfully and unjustifiably curtailed over a flawed judicial process tainted and, marred by illegalities, lack of transparency, lack of accountability and failure to adhere to the rule of law." - 49. At paragraph 11 (d) of his Affidavit in support of the Application, the Applicant states that:

"d) It is in the public domain that the Presiding Judge of the Supreme Court, the Lady Chief Justice Martha Koome, has prior to the decision, rendered and expressed herself publicly on the Applicant's case and affirmed the position that the Applicant does not stand a chance to vie and contest for public office. The Supreme

**Court thus had a predetermined mind and disposition and had already made up a decision to condemn and persecute the Applicant in the judicial proceedings before it."**

- 50. The Court being the ultimate authority on the interpretation of the Treaty, the SCOK's actions and decisions are therefore properly eligible to the Court's scrutiny for the purpose of determining compliance or non-compliance with the Treaty. - 51. We are emboldened in this position by the decision of this Court in **East African Civil Society Organization Forum vs Attorney General of Burundi and Others** (supra) where it was similarly held that the Court has a duty to determine Partner State's international responsibility under the Treaty. This position was also espoused in the case of **Martha Karua** (supra). As rightly submitted for the Applicant, this includes assessing actions by state organs, such as national courts. - 52. To further justify the contention that the Court has no jurisdiction, the Respondent also contended that the dispute is primarily domestic in nature and does not involve the interpretation or Application of the Treaty. He argued that the matter should be resolved within the national legal framework of the relevant Partner State, rather than being escalated to the Regional Court and that there was no clear jurisdictional basis for the Court's involvement in the matter. - 53. Counsel for the Respondent referenced Articles 163(1) and (7) of the Constitution of the Republic of Kenya, which establish the Supreme Court as the highest judicial authority in Kenya, with its decisions

Application No. 25 of 2022

binding on all subordinate Courts. This structure, the Respondent argued, creates a judicial hierarchy in Kenya that should not be interfered with by the Court, particularly where the Supreme Court has already adjudicated on similar matters.

- 54. It is important that we specifically address this argument. - 55. Although the apex Courts of Partner States, in this case the SCOK, are the ultimate judicial authorities within their respective jurisdictions, these Courts remain subject to obligations arising under international treaty law. - 56. The international commitments undertaken by the Partner States under the Treaty, do not conflict with nor are they subordinate to domestic constitutional principles. - 57. The Treaty does not undermine the constitutional supremacy of the Supreme Court of Kenya but rather complements it by providing a framework for addressing matters of Treaty interpretation as agreed upon by the Partner States. - 58. In that regard, Articles 23, 27 and 33(2) of the Treaty grant and delineate the Court's mandate to interpret the Treaty and to ensure compliance with its provisions, with Article 33(2) unequivocally asserting the Court's supremacy over municipal courts in that regard. - 59. Article 9(4) of the Treaty delineates the operational scope of the organs and institutions of the Community, confining their actions to the powers explicitly conferred by the Treaty. Articles 23 and 27(1) establish the Court as the judicial body charged with interpreting, applying, and ensuring compliance with the Treaty while carefully

Application No. 25 of 2022

circumscribing its jurisdiction to avoid overlapping with national functions. Finally, Articles 8(4) and 33(2) assert the Court's supremacy in Treaty interpretation and implementation, emphasizing its precedence over national Courts in related matters.

- 60. The import of these provisions is that the supremacy of the Treaty in regulating the Treaty obligations of Partner States is unequivocal. - 61. These provisions collectively underscore the foundational principle that the Treaty and the jurisdiction of the Court operate within a framework of harmonized international/regional and domestic law, ensuring its provisions are applied without conflict with the Partner State's Constitution. - 62. The jurisdiction of this Court and application of the Treaty are therefore clearly defined and operate within the bounds of the Constitution of Kenya, without any contradiction or conflict. - 63. The provisions also articulate the Court's role as a custodian of the Treaty's uniform interpretation and Application and a safeguard against legal conflicts. - 64. Moreover, under Article 27 of the Vienna Convention on the Law of Treaties, The SCOK, as an organ of a Partner State, remains subject to the Treaty's provisions. The Article states that:

**"A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."**

65. Further, Article 26 of the Vienna Convention enshrines the principle of pacta sunt servanda, providing that:

Application No. 25 of 2022 **"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."**

- 66. These principles affirm that the SCOK as an organ of the State which is represented by the Respondent in the instant case, is bound by the Partner State's obligations under the Treaty and must act in good faith to uphold them. Ultimately, the Court has jurisdiction to assess a Partner State's actions to determine compliance, including state organs such as the SCOK. (See: **East African Civil Society Organization Forum Case** (supra). - 67. Ultimately, the question that has to be determined is whether the SCOK, in the conduct of its proceedings, violated Articles 6 and 7 of the Treaty. In line with the Court's jurisdiction to test decisions and actions for compliance or non-compliance with the Treaty, the forgoing allegations therefore bring the particular aspects of the Application. within the purview of this Court. - 68. Resultantly, to the extent that the Court has no jurisdiction to undertake an appellate merit review of the decision of the SCOK, the preliminary objection partly succeeds. However, the Court has jurisdiction to hear and determine aspects of the Application that allege contravention of the Treaty. - 69. Mindful of the context and limits of the Court's findings regarding its jurisdiction as stated above, we shall now proceed to consider the merits of the Application.

## **E. MERITS OF THE APPLICATION**

70. At the hearing of this Application, held on 27th March 2022, Counsel for the Applicant vacated Prayers No. 1 and 2. He drew Court's attention to the fact that the Applicant would be pursuing prayers 3, 4, 5 and 6 only.

# **PRAYER NO. 3: Interim Conservatory Orders Staying the Execution and Enforcement of the SCOK Judgment**

- 71. At the inception of the hearing on 7th March 2023, Counsel for the Respondent informed the Court that, premised on the assumption that the Court lacked jurisdiction, the Respondent had not filed a Reply. This position was misconceived and despite the realization, there was no subsequent effort to remedy it. Rule 54 expressly requires a party served with a motion to file a reply not less than seven days before the hearing date. - 72. In paragraph 4 of the Application, the Applicant seeks interim conservatory orders staying the execution and enforcement of the judgment entered by the Supreme Court of Kenya, pending the hearing and determination of **Reference No. 34 of 2022** before this Court. - 73. Consequently, there is no substantive contest to the Notice of Motion. Nonetheless, the Court must consider whether the Application meets the requisite criteria for the grant of the orders sought.

Application No. 25 of 2022

- 74. The Applicant argued that the SCOK's decision imposes irreversible consequences on his political rights, raising significant questions of fairness, adherence to the rule of law, and procedural propriety. - 75. Counsel submitted that since no Reply was filed by the Respondent the factual allegations in the Application remain unrebutted by the Respondent. He invoked Rule 41 of the Rules, which provides that any uncontroverted factual assertions are deemed admitted. - 76. The Applicant asserts that the SCOK violated his fundamental rights under both domestic and East African Community law. Specifically, he alleged that he was selectively prosecuted and denied a fair trial, contrary to the principles enshrined in Articles 6 and 7 of the Treaty, and Article 25 of the Constitution of Kenya. - 77. The Applicant further submits that the process before the SCOK was procedurally flawed. He cites evidence, including a letter dated 12th July 2022 from the Supreme Court itself, embedded at page 546 of his attachments in the Reference, admitting procedural errors during the handling of his case, which allegedly resulted in him being compelled to proceed with insufficient time to prepare his defense. He contends that these procedural lapses contravened both the Supreme Court Rules and universally accepted standards of justice. - 78. In support of his Application, the Applicant relies on the jurisprudence of this Court, particularly the case of **Francis Ngaruko vs The Attorney General of the Republic of Burundi** (supra) and **Prof. Anyang' Nyong'o & Others vs Attorney General of the Republic of Kenya and 5 Others, EACJ Application No. 1 of 2006** which set out the principles for granting interim orders.

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79. He submitted that his Reference raises a prima facie case with serious issues to be tried, that he will suffer irreparable harm if the orders are not granted, and that the balance of convenience tilts in his favor.

#### **Court's Determination**

- 80. The principles governing the grant of interim conservatory orders by this Court are well settled; An Applicant must satisfy three key requirements: - **i. Establish a serious triable issue on the merits of the Applicants Reference, that there is a cause of action that depicts substance and reality, as articulated in the Francis Ngaruko case** (supra); - **ii. Demonstrate that irreparable harm will result if the orders sought are not granted; and** - **iii. Show that the balance of convenience favors the issuance of the orders.** - 81. Additionally, Article 7(2) of the Treaty requires Partner States, including their judicial organs, to adhere to principles of good governance, democracy, the rule of law, and social justice. These principles must guide this Court's analysis in determining whether interim relief is warranted. - 82. The Applicant has established that there is a cause of action that depicts substance and reality. His allegations of procedural irregularities and denial of a fair trial are substantiated by evidence, including admissions by the Supreme Court of Kenya of its procedural

Application No. 25 of 2022

errors. The Applicant has demonstrated that the Supreme Court could have failed to adhere to its own procedural rules, which if proved, would be in violation of Article 25 of the Constitution of Kenya and Articles 6 and 7 of the Treaty. This Court recognizes that the questions raised in the Reference are serious and merit a full hearing on their substance.

- 83. The Applicant has also demonstrated that he would suffer irreparable harm if the orders sought are not granted. The Supreme Court's decision to bar him for life from participating in political activities has profound and far-reaching consequences. Such harm cannot be adequately remedied by damages or any other form of post-facto relief. The impact on his political rights, reputation, and capacity to engage in public service underscores the irreparable nature of the harm he faces. - 84. On the balance of convenience, this Court is persuaded that the scales tilt in favor of the Applicant. While the Respondent has not demonstrated any specific prejudice it would suffer if the orders are granted, the Applicant faces irreversible consequences if the Supreme Court's Judgment is executed before the Reference is determined. In weighing the competing interests, the Court would find that preserving the status quo is the more prudent course of action. - 85. Be that as it may, whereas premised on the case argued by the Applicant, there would be sufficient ground to stay the execution and enforcement of the SCOK's judgment, to do so by this Court would be an affront on the constitutional mandate of the SCOK and in excess of this Court's own Treaty mandate.

Application No. 25 of 2022

- 86. Article 30(3) of the Treaty provides that the Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State. - 87. By virtue of Article 163 of the constitution of Kenya, decisions of the SCOK are not subject to further appeal owing to its mandate and stature under the constitution as the final Court of appeal. - 88. It is not lost to us that this Court has no appellate merit review mandate of Partner States' Court decisions, more so the apex Courts. Very importantly as well, this Court's orders should not be and are not issued in vain. Court orders are intended to serve the purpose of delivering justice for and to the parties who come to it. - 89. Whereas therefore this Court has the mandate to pronounce itself on the legality of the SCOK's conduct and decision, its capacity to issue interim conservatory orders staying the execution and or enforcement of a final decision of the SCOK is stemmed by the lack of jurisdiction to subject SCOK's decisions to a merit review. The Court cannot pause the execution of those decisions by revisiting their substance or merits.

#### **PRAYERS 4, 5 AND 6:**

90. In his fourth prayer, the Applicant sought an order compelling the Supreme Court of Kenya to lodge with this Court a certified copy of the final judgment, rulings, and proceedings in **Supreme Court Petition No. 11 (EOOS) of 2022,** and to serve the same on the Applicant's Counsel.

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- 91. However, during the hearing on 7th March 2023, it emerged that the reasoned judgment of the SCOK was already available, thus rendering Prayer No. 4 of the Application untenable. Counsel for the Applicant acknowledged this development and Prayer No. 4 was accordingly vacated, having been overtaken by events. - 92. As for Prayer No. 5, seeking to amend the pleadings rn the Reference upon receipt of the certified judgment and related documents from the SCOK, Counsel for the Applicant clarified that the purpose of the amendment was to include the certified judgment, proceedings, and any additional documentation arising from the SCOK proceedings as soon as they were made available to the Applicant. - 93. In light of the developments in respect of Prayer No. 4, the Court finds it appropriate to grant the Applicant leave to amend, file, and serve his amended Reference in accordance with the applicable procedural provisions of the Rules. - 94. The Applicant's Prayer No. 6 for the costs of and incidental to the Application to be in the cause is also granted as prayed. - 95. Lastly, Prayer No.7 was not canvassed during the hearing. Nonetheless, it is pertinent to note that this prayer has been overtaken by events, as the elections referenced by the Applicant had already taken place by the time this Application was heard and determined. Consequently, addressing the merits of this prayer would serve no practical purpose as it no longer has any object.

Application No. 25 of 2022

### I. **CONCLUSION**

- 96. In conclusion, this Court affirms that while it lacks jurisdiction to conduct an appellate merit review of the Supreme Court of Kenya's decisions, it retains jurisdiction to address allegations of contravention of Articles 6 and 7 of the Treaty. The preliminary objection is therefore upheld in part and dismissed in part. - 97. The Court further resolves the prayers sought in the Application as follows: - **a) Prayer No. 4 is vacated, as it has been rendered moot by the availability of the Supreme Court of Kenya's reasoned judgment;** - **b) Prayer No. 5 is granted, allowing the Applicant to amend, file, and serve an amended Reference, in accordance with the Rules, to incorporate materials from the Supreme Court of Kenya proceedings;** - **c) Prayer No. 6 is allowed, with costs to be determined in the cause; and** - **d) Prayer No. 7 is dismissed, as the referenced elections have already taken place.**

Dated, signed and delivered at Arusha this 28^th day of November, 2024.

Hon. Justice Yohane B. Masara PRINCIPAL JUDGE $\overline{12}$ \*Hon. Justice Dr Charles O. Nyawello DEPUTY PRINCIPAL JUDGE Hon. Justice Richard Muhumuza **JUDGE>** ........... Hon. Justice Richard Wabwire Wejuli **JUDGE** Hon. Justice Dr Léonard Gacuko **JUDGE**

\*[Hon. Justice Dr. Charles O. Nyawello's term of office at the EACJ came to an end with effect from 20^th May 2024 but he signed this Judgment in terms of Article $25(3)$ of the Treaty].

Application No. 25 of 2022