EMMANUEL MWAKISHA MJAWASI & 748 OTHERS v THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA

Case Number APPEAL NO. 4 OF 2011
Summary

The Appellants were former employees of the defunct East African Community (EAC) that collapsed in 1977.

They claimed that though they were absorbed into the Kenyan Public Service and were eventually paid their terminal dues they were not paid their corresponding dues for the services they rendered to the Community; yet they lost their employment at the EAC pursuant to the abolition of their offices.

The Appellants filed Reference No.2 of 2010, before the First Instance Division claiming that the Respondent’s refusal, neglect or failure to pay the Applicants their EAC terminal benefits constituted  a breach of Article 6(d) and Article 7(2) of the EAC Treaty.

The Respondent raised several preliminary objections and upon hearing, on 29th September, 201, the First Instance Division ruled that it had no jurisdiction to hear the Reference on account of none retrospective application of the Treaty.

Aggrieved by the decision, the Appellants lodged this appeal.
RespondentTHE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA
ComplainantEMMANUEL MWAKISHA MJAWASI & 748 OTHERS
Date filedJune 23, 2010
CountriesKenya
KeywordClass Action , Non retrospective application of the EAC Treaty , Procedural irregularities , Res judicata , Workers Rights
Treaty ArticleArticle 30 , Article 6 , Article 7 , The East African Community Mediation Agreement 1984 , Vienna Convention on the Law of Treaties (Article 31)

First Instance Judgment

VerdictThe Court ordered that although it has jurisdiction to hear the Reference and that it is not barred by the doctrine of res judicata or the rule of exhaustion of local remedies, nonetheless, it cannot entertain the Reference on account of non retrospective application of the Treaty. The Reference was accordingly struck out with costs to the Respondent.
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Date deliveredSeptember 28, 2011
Quorum

Appeal Judgment

Verdict
  1. Kenya’s former Community employees had a genuine and legitimate basis for their grievance of injustice against the Kenyan State concerning their Community pensions. Nonetheless, the jurisdiction for interrogating the merits (or demerits) of Appellants’ grievance properly lay with the national Courts and allied fora on account of the non retrospective application of the new EAC Treaty of 2000.
  2. The objection of non retroactivity of a Treaty is a fundamental issue that goes to the root of the case. Retroactivity is eminently a point of pure law which this Court is not only entitled to raise on its own motion, but also to entertain as a point of objection that is capable of disposing of the entire case. The instant case meets the necessary conditions for the principle of non retroactivity to be applied. The EAC Treaty is non retroactive. So the Treaty does not apply to the present Reference. Consequently, the East African Court of Justice is not clothed with the jurisdiction to entertain the Reference.
  3. The Mediation Agreement of 1984 effectively and definitively moved the management of the assets and liabilities of the defunct Community from the remit of the East African Community, to the realm of the various National States.
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Date deliveredApril 27, 2012
Quorum