Coming up for delivery of Judgment: on 28th February 2022.
Appeal filed: on 10th December 2020.
Rule: 98(3) of the East African Court of Justice Rules of Procedure, 2019.
Subject matter: Right to access justice and fair trial.
The Appellant, Attorney General of the Republic of Kenya appeals against part of the decision of the First Instance Division in Reference No. 20 of 2019 Martha Wangari Karua v The Attorney General of the Republic of Kenya on grounds inter alia that; the Honourable Court erred in law in exercising a human rights jurisdiction which the Court does not have by the dint of Article 27(2) of the Treaty, by exercising appellate jurisdiction over the interpretation of the Constitution of Kenya by the Supreme Court of Kenya, by failing to appreciate that the interpretation of Kenya municipal laws by Kenya’s apex laws is binding on International Courts and tribunals, by arriving at a finding that leads to a situation where there multiple versions of the correct interpretation of Kenyan laws issued by two different sources, by infringing on the reserved domain of domestic laws, by treating the Supreme Court of Kenya as the Court of first instance thereby misapplying the principles of when time starts to run for purposes of computing time under the Treaty and by awarding compensation and general damages to the Respondent.
The Appellant therefore seeks for orders setting aside the First Instance Division holding that, it had jurisdiction to hear and determine human rights allegations and jurisdiction to determine the merits of the interpretation of the Kenyan Constitution by the Supreme Court of Kenya. By holding that Supreme Court of Kenya rather than the legislature of Kenya has the duty to remedy lacuna in the Republic of Kenya’s municipal laws, holding that the Republic of Kenya had contravened the rule of law principles enshrined in Articles 6(d) and 7(2) of the Treaty and had infringed on the Respondent’s right to access justice. Further seeks for an order setting aside the award of general damages.
The Respondent Martha Wangari Karua opposes the appeal for not being within the scope of Article 35A of the Treaty. Further, the First Instance Division did not err in how it exercises its jurisdiction, in arriving at its judgement, did not sit as an appellate Court over any of the municipal Court of the Appellant, in giving remedies to the Respondent and did not infringe domestic jurisdiction. The Respondent submits the judgment is lawful, appropriate, and in line with the principle of international laws and the Treaty.
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