Arusha, 08 November 2013: Today the Appellate Division dismissed the Appeal by Okotch Mondoh seeking to overturn the decision of the First Instance Division for grounds that the Division in its judgment did not consider all the facts that were presented before it, on the process used in promulgation of the new Kenyan Constitution which took place on 27th August 2010.
The Court in its decision stated, “We are satisfied that in reaching its findings and conclusions in this case, the First Instance Division exercised its discretion judiciously, not capriciously; and fairly, not unreasonably. Accordingly, even if for arguments sake, those conclusions were wrong, they would not be reviewable by, nor appealable to, this Appellate Division.”
Justice James Ogoola while reading the Judgment said that, neither the First Instance Division, nor this Appellate Division, has jurisdiction to review the judicial decisions and judgments of those municipal courts and tribunals. The East African Court of Justice (EACJ) is not a Court of Appeal vis- à- vis decisions of the municipal courts and tribunals of the Partner States. Under Articles 27 (1) and 30 of the EAC Treaty, the initial jurisdiction of the EACJ pertains only to the interpretation and application of the provisions of the Treaty. Indeed, Article 27 (2) makes it crystal clear that the wider “appellate” jurisdiction for the EACJ over decisions of the municipal courts and tribunals of the Partner States, will be determined by the Council of Ministers only at “a suitable subsequent date”, for which the Partner States “shall conclude a Protocol to operationalise the extended jurisdiction”.
The Court has had occasion to pronounce itself on the question of appeals on points of law, excluding facts.
The Court went further and added that, Clearly, the matter before this Court cannot, and must not, be treated as an appeal of the electoral petition which formed the judicial process that took place in the Kenyan courts. He continued that accordingly, the First Instance Division was right in holding, as it did, that it had no jurisdiction to review the decisions of the Kenyan courts in this matter. Indeed, even the Kenyan High Court declined jurisdiction, and left the matter to the IICDRC, pursuant to Sections 60 – 60A of the replaced Constitution of Kenya.
The Appellate Division also said that, the respective causes of action in the present case are quite distinct. In the Kenyan courts; including the IICDRC, the cause of action was the alleged lack of propriety of the Constitutional process for promulgating the new Constitution of the Republic. However the case before the EACJ, the cause of action is totally different, which is the alleged violation, infringement and breach of Article 6 (c ) and (d), and Article 7 (2) of the EAC Treaty – in effect, a violation of a Partner State’s Treaty obligations and undertakings to ensure adherence to the Rule of Law in its territory.
The Court dismissed the appeal in favor of the Attorney General of the Republic of Kenya and the Secretary General of the East African Community and ordered each party to bear its costs. Present in Court was Dr. Anthony Kafumbe representing the EAC Secretary General 2nd Respondent, Mr. The Appellant Mr. Okotch Mondoh, represented by Mrs. Judith Wambui, The Attorney General of the Republic of Kenya, represented by Mr, Emmanuel Bitta, Principal State Attorney General Kenya.
Notes for Editors:
That Article 35 (A) of the Treaty provides as follows:-
An appeal from the judgment or any order of the First Instance Division of the Court shall be to the Appellate Division on –
(a) points of law;
(b) grounds of lack of jurisdiction; or procedural irregularity
Rule 77 of the Rules of Procedure of the East African Court of Justice states that,
An appeal from the judgment or any order of the First Appeals Instance Division shall lie to the Appellate Division on:
(a) apoints of law;
(b) grounds of lack of jurisdiction; or
(c) procedural irregularity.
About the EACJ:
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The High Courts of the Partner States serve as sub-registries.
For more information please contact:
Prof. John Ruhangisa, Registrar
Email: ruhangisa@eachq.org
Ms. Geraldine Umugwaneza, Deputy Registrar
Email: umugwaneza@eachq.org
Owora Richard Othieno, Head of Department;
Corporate Communications and Public Affairs;
EAC Secretariat
Tel: +255 784 835021; Email: othieno@eachq.org
East African Court of Justice
Arusha, Tanzania
https://www.eacj.org/