Coming up for hearing: on 6th June 2022
Application filed: on 5th of February 2021
Articles: 1,3,30, 33(2), 3(3) (b) 6(d) 7 (a) 39 of the Treaty for the Establishment of the East African Community.
Rule: 62 52 (2) of the East African Court of Justice Rules of Procedure, 2019
Subject matter: Conservative Order
The Applicant, in the application, the Attorney General of the Republic of South Sudan seeks for among other things, court orders certifying this application as urgent, hear it ex-parte in the first instance.
The Applicant seeks further orders that pending the hearing and determination of the application, leave be granted to them to change advocates from Mr Biong Pieng Kuol Arop to the Law firm of Macharia- Mwangi & Njeru Advocates.
The Applicant further seeks orders that pending the hearing and determination of the application inter parties, there be a stay of execution of a consent judgment entered on the 26th November 2020, the resultant decree and further enforcement proceedings other that the hearing of this application.
The Applicant also seeks to have the court review and/or set aside the consent judgment and Decree issued herein on the 26th November 2020 and all subsequent enforcement proceedings pursuant to the judgment and decree.
The Applicant further seeks leave for extension of time to file a Response to the Reference that the draft response to the reference attached annexed to the Notice of Motion be marked ‘GMB 14’ be filed out of time.
Finally the applicants also pray for costs of the application.
The application which is supported by various affidavits of Garang Majak Bol, First Undersecretary in the Ministry of Finance and Planning Brigadier General Dau D. Duur and the Deputy Commander of the Dr . John Garang Memorial Military Academy is founded on several grounds including:
That on 26th November 2020, Mr Biong Pieng Kuol Arop, signed a consent on behalf of the Applicant, the Republic of South Sudan, thereby committing the people of the Republic of South Sudan to pay the applicant a sum of USD 49,398,473.91 with the contention that the said Mr Biong Pieng Kuol Arop was not authorized to enter into the consent.
That the Respondents in the application had moved to execute the judgment and on 28th December 2020 and 6th January 2021, the Respondent in the application was granted orders by the high court of Kenya at Nairobi freezing the Applicant’s Bank Accounts held in NCBA Bank Kenya Limited and Stanbic Bank Kenya Ltd Nairobi, which has caused the applicant to default in its financial obligations with International Organizations such as the International Labor Organization, World Health Organization and the National Examination Printing Services and meeting rental Payments and other costs of Diplomatic Missions Abroad which has severely paralyzed/ affected the operations and service delivery of the Applicant.
The Applicant also contends that the Respondent ought to have lodged the claim that resulted in the consent judgment before Courts in the Republic of South Sudan first.
The Applicant prays for the aforementioned orders on further grounds that the Respondent in the application who is also the Applicant in the main reference instituted a reference which is fraudulent.
That, the Respondent in the application had been paid a sum of USD 24,000,000 for works which was not undertaken and as a result of the consent judgment the respondent would be entitled for a further award of USD 49,398,473.91 for works which were not undertaken which would be unlawful.
That the Applicant was not granted fair and proper hearing in the case deciding the consent judgment and even though judgment was entered by consent, the Honorable Court did not Satisfy itself that the agreement was reached lawfully and that the judgment was for a sum properly due and owing from the republic of South Sudan to the respondents in the application.
That unless execution of the judgment is stayed and ultimately set aside, the Respondent shall have succeeded in stealing a huge amount from the people of South Sudan.
That the Respondent had disingenuously avoided lodging any proceedings before The Republic of South Sudan and thereby avoiding proper scrutiny of the initial claim.
That the Respondents bypassed the Constitutional safeguards establishing the National Courts in the Republic of South Sudan.
That the Respondent’s claim that resulted to the Consent judgment and the subject matter of the reference is not valid and consists of services not rendered.
On the Respondent’s side, they have raised a preliminary objection based on rule 39(1), (2) & (3) of the East African Court of Justice Rules of the Court 2019. The main contention of the Respondent is that the consent order must be complied with in totality to avoid a multiplicity of suits which is against the principle of Forum Shopping, Re-Judicata, Stare Decisis and Estoppel by record.
The Respondent also contends that the Applicant filed a response beyond the 45 days prescribed in the East African Court of Justice Rules of the Court 2019 and that the rules did not provide for the possibility of a stay of execution by the applicant without having filed a notice of appeal which in anyway if it were so, the time for lodging one is long gone.
The other contention is that the Attorney General of the Republic of South Sudan was represented through the Ministry of Justice and it was now inconceivable how the Attorney General of a state is now being represented by private lawyers in Kenya that is Macharia – Mwangi & Njeru Advocates after a consent judgment has been endorsed and the Court is functus officio.
The preliminary objection is raised that the application is bad law on the basis that it was crowded with illegality for the Applicant had contemptuously disobeyed court orders issued hence the Respondent seeks to have the application dismissed with costs on preliminary points of Law and Objections.
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