THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA AND 4 OTHERS v INDEPENDENT MEDICAL LEGAL UNIT

Case Number APPEAL NO. 1 OF 2011
Summary

The Appellant filed this Appeal challenging the Ruling of the First Instance Division concerning Reference No. 1 of 2011. The Appellant had raised preliminary objections inter alia averring that the Court had not jurisdiction to entertain the Reference as it did not comply with the provisions of limitation of time. After hearing the objection, on 29th June, 201, the First Instance Division found that the Court had jurisdiction to entertain the Reference and that the Reference was not barred by limitation of time. Subsequently, this Appeal was lodged contending that the court had erred in law.
RespondentINDEPENDENT MEDICAL LEGAL UNIT
ComplainantTHE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA AND 4 OTHERS
Date filedJuly 2, 2010
CountriesKenya
KeywordComputation of time , Continuous violation , Executions , Human Rights , Limitation of time , Preliminary Points of law
Treaty ArticleArticle 23 , Article 27 , Article 30 , Article 35 A , Rule 24 , Rule 68 , Rule 77 , Rules of Procedure 2010

First Instance Judgment

VerdictOn 29th June, 2011 ruling was delivered, the court ordered that it heard jurisdiction to entertain the matter and struck off the 2nd, 3rd, 4th and 5th Respondents from the Reference with costs. The reference is fixed for hearing on 28th July, 2011. On 28th July, 2011 when the matter came up for scheduling conference and hearing counsel for the Respondent informed the court that he had filed a Notice of Appeal and applied that the proceedings in this case be stayed pending the hearing and determination of the appeal. The Court allowed the application with orders that costs be paid to the Complainant in the reference.
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Date deliveredJune 29, 2011
Quorum

Appeal Judgment

Verdict
1) Only points of pure law unstained by facts or evidence, should be raised as preliminary objections. The improper raising of points by way of preliminary objections unnecessarily increases costs and, on occasion, confuses the issues. 2) There was no enabling provision in the Treaty to disregard the time limit set by Article 30(2). This Article does not recognize any continuing breach or violation of the Treaty outside the two months after a relevant action comes to the knowledge of the Claimant; nor is there any power to extend that time limit. The Respondent came to the knowledge of the acts complained of between 2006 and February, 2009 which was one-and-half years before the Reference was brought. Thus the Reference was time –barred and the appeal was allowed.
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Date deliveredMarch 15, 2012
Quorum