Case Number Appeal No. 3 of 2016

It is axiomatic that in administering justice, procedural formalities and rules are not empty ones, that is, not without any intended salutary purpose. Procedure, as was aptly observed, is a legal requirement designed to facilitate the attainment of justice and further its ends: Sangram Singh v. Election Tribunal, AIR 1955 sc 425. The overriding objective of all procedural rules, is to enable justice to be fairly done between the parties in a dispute, consistent with public interest: Dy.CIT v. Central Concrete and Allied Products Ltd. [1999] 236 ITR 595
(Cal). The pertinent holding of Frankfurter, J. in McNobb v. U.S. (318) US 332 at page 347 is a further illumination of this. He said: “The history of liberty has largely been the history of observance of
procedural safeguards.”

Alive to these truths, the framers of the Treaty for the Establishment of the East African Community (“the Treaty”), through Article 42 (1), found it wise to vest the East African Court of Justice (“the Court”) with powers to make rules of the Court which, subject to the provisions of the Treaty, shall “regulate the detailed conduct of the business of the Court’. The promulgated rules are the East African Court of Justice Rules of Procedure 2013 (“the Rules”)

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Treaty Article

First Instance Judgment

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Appeal Judgment

VerdictThe crucial issue in the Appeal was whether or not the Trial Court erred in law and procedurally by failing to determine the point of preliminary objection challenging the competence of the Application. From our discussion on this Issue we have arrived at one conclusive finding. This is that the Trial Court actually so erred in law and procedurally. The error was incurable and vitiated the impugned Ruling which we have quashed and set aside. As a way forward, since the Parties were heard in full on the undetermined point of preliminary objection, we direct the Trial Court to re-constitute itself in order to compose a fresh ruling which should contain a clear determination of the pleaded point of preliminary objection, before considering the merits or otherwise of the Application, if that need will arise. It is also our considered finding and holding that since the Parties are not to blame for this incurable procedural irregularity, they should bear their own costs here and below. It is so ordered.
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Date deliveredMay 26, 2017