MARY ARIVIZA & ANOTHER v. THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA & ANOTHER

Case Number APPEAL NO. 3 OF 2012
Summary

The Appellants/ Applicants were registered voters in the Republic of Kenya who filed Reference No 7 of 2010, alleging that the 1st Respondent had contravened the Referendum law in Kenya thus violating the rule of law and the EAC Treaty. The Appellants sought orders inter alia that: the promulgation of Kenya’s New Constitution on 27th August, 2010 contravened the Treaty, and was therefore illegal, null and void; and that the Parliament of the Republic of Kenya should be restrained from passing legislation to implement the replacing Constitution until the hearing and determination of the Reference.

The First Instance Division dismissed the matter stating that the acts complained of did not fall within the ambit of Article 30(1) and that the Court was not competent to review those decisions.

Being dissatisfied with the Court’s decision, the Appellants filed this appeal.
RespondentATTORNEY GENERAL OF KENYA and SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY
ComplainantMARY ARIVIZA AND ANOTHER
Date filed
CountriesEast African Community , Kenya
KeywordAppeal on points of fact , Concurrent jurisdiction , Discretion
Treaty ArticleArticle 35 A , Rule 77 , Rule 94 , Rules of Procedure 2010

First Instance Judgment

Verdict
PDF document
Date delivered
Quorum

Appeal Judgment

Verdict
  1. Pursuant to Article 23 (3), facts are the exclusive preserve of that First Instance Division in its original jurisdiction. The Appellate Division has no concurrent jurisdiction in the area of facts. Only issues of law are justiciable before the Appellate Division.
  2. In reaching its findings and conclusions, the First Instance Division exercised its discretion judiciously, not capriciously; and fairly, not unreasonably. Even if, those conclusions were wrong, they would not be reviewable by, nor appealable to, the Appellate Division. The First Instance Division was right in holding, that it had no jurisdiction to review the decisions of the Kenyan courts.
  3. The matter before this Court cannot be treated as an appeal of the electoral petition which formed the judicial process that took place in the Kenyan courts. The appeal was therefore dismissed.
PDF documentDownload the decision as PDF
Date deliveredNovember 8, 2013
Quorum