Case Number REFERENCE NO. 8 OF 2017

The instant Reference, No.8 of 2017, was filed by Pontrilas Investments Limited (‘the Applicant’) on 31 st August, 2017. The thrust of the Reference is the Applicant’s contention that the Respondents breached their obligations under the Treaty for the Establishment of the East African Community, (‘the Treaty’) and in particular Articles 6,
7(2) and 8(1 )(c) thereof, as well as the Protocol for the Establishment of the East African Monetary Union (‘the Protocol’) as regards supervision of Imperial Bank of Kenya Limited and actions related thereto.

The First Respondent is the Central Bank of Kenya, and the Second Respondent is the Attorney General of the Republic of Kenya. The said Respondents filed Responses to the Reference, on 30th January, 2018 and 18th January 2018 respectively.

RespondentCentral Bank of Kenya and The Attorney General of The Republic of Kenya
ComplainantPontrilas Investments Limited
Date filed
Treaty Article

First Instance Judgment

VerdictWe have considered the Applicant's argument relating to emanation of the state, as well as the First Respondent's response on the same. It is our considered view, that, having concluded as we have that the question before us, is question of both law and fact, and therefore not a proper preliminary point of law, it would be inappropriate at this stage to make a determination on the doctrine of emanation of the State. This seems to us to be an issue to be canvassed and determined at the substantive hearing of the Reference, if the First Respondent chooses to challenge the court's jurisdiction over it, at the said hearing. We do therefore overrule the present Preliminary Objection; we order that Reference No.8 of 2017 be heard on its merits, and urge the Parties (should they be so inclined) to address the issue of the First Respondent's locus standi therein as a question of law and fact. We make no order as to costs.
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Date deliveredJuly 4, 2019

Appeal Judgment

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