East African Court of Justice, 10th November 2021: The Appellate Division hears Appeal No. 4 of 2021 The Attorney General of the Republic of Kenya v Martha Wangari Karua & Others. The Appeal challenges the decision of the First Instance Division in Reference No. 20 of 2019 Martha Wangari Karua v The Attorney General of the Republic of Kenya on grounds inter alia that; the Honorable Court erred in law in exercising a human rights jurisdiction which the Court does not have under Article 27(2) of the Treaty over the interpretation of the Constitution of Kenya by the Supreme Court of Kenya, granting orders sought by the Respondent and awarding damages.
The AG of Kenya (Appellant) is seeking the Appellate Division to set aside the orders of the First Instance Division holding that, it had jurisdiction to hear and determine human rights allegations and jurisdiction to determine the merits of the interpretation of the Kenyan Constitution by the Supreme Court of Kenya. Further holding that Supreme Court of Kenya rather than the legislature of Kenya has the duty to remedy lacuna in the Republic of Kenya’s municipal laws, holding that the Republic of Kenya had contravened the rule of law principles enshrined in Article 6(d) and 7(2) of the Treaty and had infringed on the Respondent’s right to access justice. The Appellant also seeks for an order setting aside the award of general damages.
The Respondent Martha Wangari Karua represented by Donald Deya, opposed the appeal, arguing that it’s not within the scope of Article 35A of the Treaty. Further, that the First Instance Division did not err in exercising its jurisdiction arriving at its judgement and did not sit as an appellate Court over any of the municipal Court of the Appellant, in giving remedies to the Respondent and did not infringe domestic jurisdiction. The Respondent also submitted that the judgment is lawful, appropriate, and in line with the principle of international laws and the Treaty.
The hearing was conducted via video conference as the Court is sitting in Bujumbura this month. Court will deliver the judgment on notice. The matter came before Honourable Justices of the Appellate Division: Nestor Kayobera – President, Geoffrey Kiryabwire – Vice President, Sauda Mjasiri, Anita Mugeni & Kathurima M’Inot.