MARY ARIVIZA & ANOTHER v THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA & ANOTHER

Case Number APPLICATION NO. 3 OF 2010 (ARISING FROM REFERENCE NO. 7 OF 2010) (PRELIMINARY OBJECTION)
Summary

The Applicants filed Reference No 7 of 2010 claiming that the conduct and process of a Referendum in the Republic of Kenya as well as the promulgation of the new Constitution were contrary to law, infringed the Treaty for the East African Community and should be declared null and void. They sought a temporary injunction restraining and prohibiting the 1st Respondent from receiving, tabling and or passing any legislation to implement the new constitution until the hearing and determination of the Reference.

The Respondent raised a preliminary objection claiming inter alia that the court had no jurisdiction.

The issue for determination was whether the Court had jurisdiction to hear and determine the application and the reference since the Constitution making process was within the sovereign power of Kenyans and dispute settlement was vested in the Interim Independent Constitutional Dispute Resolution Court.
RespondentThe Attorney General of the Republic of Kenya & The Secretary General of the East African Community
ComplainantMary Ariviza & Okotch Mondoh
Date filedOctober 28, 2010
CountriesEast African Community , Kenya
KeywordConstitution , Jurisdiction , Pacta sunt servanda , Preliminary Points of law
Treaty ArticleArticle 1 , Article 2 , Article 27 , Article 29 , Article 3 , Article 5 , Article 6 , Article 7 , Article 7 , Article 8 , Article 9 , Constitution of Kenya 2010 , Vienna Convention on the Law of Treaties (Article 31)

First Instance Judgment

Verdict
  1. The Court had jurisdiction to hear the Reference and the merit of the Applicants’ claim would be determined by the Court after the hearing.
  2. The Treaty, being an international treaty among three sovereign states, is subject to international law on interpretation of treaties, the main one being the Vienna Convention on the Law of Treaties. The Convention embodies the principle of pacta sunt servanda that prohibits a party to a treaty from invoking its internal law as justification for not observing or failing to perform the treaty. Thus the preliminary objection is overruled.
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Date deliveredDecember 1, 2010
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum