IN THE EAST AFRICAN COURT OF JUSTICE

AT ARUSHA
(Coram: Moijo M. ole Keiwua P, Joseph Mulenga VP, Augustino S.
L. Ramadhani J, Kasanga Mulwa J, Joseph S. Warioba J)

REFERENCE NO. 1 OF 2006

PROF. PETER ANYANG’ NYONG’O AND 10 OTHERS …………….……

…………………………………………………………………………… APPLICANTS
VERSUS
THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA
AND 5 OTHERS ……………………………………………….. RESPONDENTS

DATE: 27TH DAY OF NOVEMBER, 2006

RULING OF THE COURT.

The Applicants named above have brought a reference to this Court

under Article 30 of the Treaty for the Establishment of the East African
Community (“the Treaty”). In the reference they contend inter alia that
the process by which the representatives of the Republic of Kenya to the
East African Legislative Assembly (EALA) were nominated was incurably
and fatally flawed in substance, law and procedure and contravenes
Article 50 of the Treaty in so far as no election was held, and aver that
the Clerk to the National Assembly of Kenya, 2nd Respondent, forwarded
to the Clerk to the EALA, 3rd Respondent, an illegal list of names of
Kenya’s representatives. They pray that this Court be pleased –
1. to interpret and apply the Treaty to the process of
nomination and election of Kenya’s representatives to the
EALA;
2. to declare that the Rules of Election applied by the Kenya
National Assembly constitute a breach of Article 50 of the
Treaty and is (sic) therefore void;

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 3. to declare that the process of election, selection and/or
nomination of members to the EALA by the Republic of
Kenya is null and void;
4. to declare that the 5th and 6th Respondents have no
mandate to determine persons to represent the Republic
of Kenya at the EALA;
5. to restrain and prohibit the 3rd and 4th Respondents from
assembling, convening, recognizing, administering oath of
office or otherwise presiding over or participating in
election of the Speaker or issuing any notification in
recognition of the following persons: Messrs Clerkson
Otieno Karan, Safina Kwekwe Sungu,Gervase Akhaabi,
Christopher Nakuleu, Sarah Godana,Abdi Rahman Haji,
Reuben Oyondi, Catherine Ngima Kimura and Augustine
Chemonges Lotodo as nominated representatives of the
Republic of Kenya to the EALA;
6. to direct the Republic of Kenya through the 1st and 2nd
Respondent [to] repeat its nomination and election
process in compliance with Article 50 of the Treaty within
reasonable time as the Court may direct;
7. to extend time within which the Republic of Kenya will
transmit names of duly elected members to the 3rd and
4th Respondents for purposes of being sworn in as
members of the EALA;
8. to make such further or other orders as may be necessary
in the circumstances.

The reference was filed on 9th November 2006 along with an ex parte
application by Notice of Motion for interim orders inter alia that pending
the hearing and determination of the motion and of the reference this
Court be pleased –

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 “to restrain and prohibit the 3rd and 4th Respondents from
assembling, convening, recognizing, administering oath of
office or otherwise howsoever presiding over or participating
in election of the Speaker or issuing any notification in
recognition of any names of persons as duly nominated
representatives of the Republic of Kenya to the EALA.”

When the Notice of Motion came up for hearing ex parte on 17th

November 2006, we considered that notwithstanding its urgency, its
import warranted giving the Respondents opportunity to be heard.
Accordingly we ordered that the Respondents be served so that the
motion is heard inter partes on 24th November 2006. The Respondents
were duly served and on the fixed day, the 1st Respondent appeared in
person and the rest by counsel.

Prior to the hearing the 1st, 2nd, 5th and 6th Respondents gave notice that
they would raise as a preliminary objection, this Court’s lack of
jurisdiction to hear and determine the reference and to grant the
restraining orders prayed for. In addition the 2nd, 5th and 6th
Respondents objected to their being joined as parties to the suit. In view
of the urgency of the application for the interim order, the primacy of the
objection to the court’s jurisdiction and the need to determine early who
are the rightful parties to a suit, and because of constraint of time, the
Court directed at the commencement of the hearing that the three issues
be argued together so that the decision on them may be given in one
ruling.

Jurisdiction

The contention that this Court lacks jurisdiction to determine the

reference was premised on an argument, articulated variously by the
respective counsel for the Respondents, that in substance the reference
was brought to challenge the election of Kenya’s nine representatives to

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the EALA. It was stressed that “the Treaty for the Establishment of the
East Africa Community Election of Members of the Assembly) Rules
2001” (the Election Rules) under which the nine representatives were
elected were the same under which the outgoing representatives were
elected, and that Applicants had fully participated in the election process
under the same rules without protesting their illegality. It was only after
the Applicants’ candidates failed to be elected that the reference was
brought under the guise of seeking interpretation of the Treaty when the
real purpose was to challenge the outcome of the election.

In his submissions, the learned Attorney General stressed that the initial
jurisdiction vested in this Court under clause (1) of Article 27 of the
Treaty is very restricted, and that the Court should not assume
jurisdiction that is not yet vested in it or jurisdiction that is vested
elsewhere. He maintained that jurisdiction over the interpretation and
application of the Treaty does not extend to determining questions
arising from elections of members of the EALA. He pointed out that in
Article 52(1) the Treaty expressly reserves the jurisdiction to determine
such questions to the appropriate institutions of the Partner States.

Mr.Wekesa, learned counsel for the 6th Respondent, sought to crystallize

the argument. He submitted that under the Court’s jurisdiction vested by
Article 27(1) of the Treaty, the Court was competent to consider and
determine whether the Election Rules under which the National
Assembly of Kenya proceeded in electing the nine representatives
infringed Article 50 of the Treaty, but it was not competent to determine
if elections carried out under those rules were lawful because by virtue of
Article 52(1) that was the preserve of the pertinent national institution,
namely the High Court of Kenya. Learned counsel invited the Court to
decline to entertain the feigned reference for interpretation, which in his
view was tantamount to abuse of court process.

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It is common ground that by virtue of Article 27(1) of the Treaty, this
Court has jurisdiction over the interpretation and application of the
Treaty. Under Article 30, of the Treaty, the Court is empowered to
exercise that jurisdiction by determining the legality of any Act,
regulation, directive, decision or action of a Partner State or an
institution of the Community referred to it on the ground that it is
unlawful or it infringes provisions of the Treaty. Article 27(1) provides –
“The Court shall initially have jurisdiction over the
interpretation and application of this Treaty.”

And Article 30 provides –

“Subject to the provisions of Article 27 of this Treaty, any
person who is resident in a Partner State may refer for
determination by the Court, the legality of any Act,
regulation, directive decision or action of a Partner State or
an institution of the community on the grounds that such
Act, regulation, directive, decision or action is unlawful or is
an infringement of the provisions of the this Treaty.”

It cannot be gainsaid that in the reference the Court is called upon to

determine if the process by which the Kenya’s representatives to the
EALA were nominated and the Election Rules under which it was
undertaken are unlawful or an infringement of Article 50 of the Treaty on
Election of Members of the Assembly. The Article provides in clause (1) –
“The National Assembly of each Partner State shall elect, not
from among its members, nine members of the Assembly,
who shall represent as much as it is feasible, the various
political parties represented in the National Assembly,
shades of opinion, gender and other interest groups in that
Partner State, in accordance with such procedure as the
National Assembly of each Partner State may determine.”

The Applicants maintain that what transpired was not an election, and
the Election Rules used did not conform to the procedure as envisaged
under the said provision. On the face of it therefore, in order to

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determine the reference the Court has to decide what the expression
“each Partner State shall elect” means and whether what transpired fits
or does not fit within that meaning. We are satisfied that this is an issue
that falls within the jurisdiction of this Court.

Wrongly joined parties

The objections to being joined raised by the 2nd, 5th and 6th Respondents
were virtually on the same ground, namely that by virtue of the
provisions of Article 30 of the Treaty they were wrongly enjoined to the
reference and the motion. They maintained that under that Article, only
an Act, regulation, directive decision or action of a Partner State or an
institution of the Community may be referred to this Court. Although
they were joined in their respective official capacities, they did not come
within the ambit of Article 30 of the Treaty. The 2nd Respondent was sued
as Clerk to the National Assembly of Kenya. The 5th Respondent, who is
the Vice President of Kenya, was sued as Leader of Government Business
in the National Assembly. The 6th Respondent was sued as Chairman of
NARC-Kenya, a political party. The reason for joining the three
Respondents is disclosed in paragraph 33 of the reference where the
Applicants aver that the three “colluded and connived in the violation of
law as they usurped the authority of the Party Leader of the Ruling Party
NARC and collectively robbed Kenyans of the opportunity to decide by
democratic means their representatives to the EALA.”

Mr Mutala Kilonzo, learned counsel for the Applicants, strenuously

argued that since the natural person has the capacity to sue in this
Court the natural person must have the capacity to be sued in the same
Court under the Treaty. He urged the Court to give to Article 30 an
interpretation that would bring natural persons who commit misfeasance

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that infringe on provisions of the Treaty within the ambit of Article 30, to
account for their actions.

With due respect to counsel for the Applicants, it appears to us that

enjoining the 2nd, 5th and 6th Respondents to the reference was under a
misconception. A reference under Article 30 of the Treaty should not be
construed as an action in tort brought by a person injured by or through
the misfeasance of another. It is an action to challenge the legality under
the Treaty of an activity of a Partner State or of an institution of the
Community. The alleged collusion and connivance, if any, is not
actionable under Article 30 of the Treaty.

We think there is merit in the objections. The matters referred to this

Court, whose legality it has to determine relate to the responsibility of the
Republic of Kenya as a Partner State, acting by its National Assembly
under Article 50 of the Treaty, to elect nine members of the EALA. Both
the process of selecting the nine members whose names have been
remitted to the 3rd Respondent and the Election Rules under which they
were elected or selected were done by the Republic of Kenya through its
National Assembly. It is for that reason that the Attorney General of
Kenya was rightly made the 1st Respondent.

We are satisfied that the 2nd, 5th and 6th Respondents were wrongly
joined to the reference and we order that they be struck off with costs.

Interim injunction

The clear purpose of the application for the grant of an interim injunction
is to prevent the nine persons elected by the National Assembly of Kenya
taking office as Members of the EALA until this Court determines
whether or not the process of their election was unlawful or an

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infringement of the Treaty. The Applicants contend that if the injunction
is not granted there would be an irreparable damage because after taking
office as Members of the EALA there is no legal means for removing them
even if this Court subsequently determines under the reference that the
process of electing them was not lawful.

It is not in dispute that in absence of any restraining order, the said nine
persons will be sworn-in along with the Members elected by the National
Assemblies of Tanzania and Uganda. The 3rd and 4th Respondents have
confirmed in their respective affidavits that the commencement of the
second EALA will be effected on 29th November 2006 and that all the
elected Members will be facilitated to take the oath of office on that day.

The contentious issue is what would happen if they assumed office and
subsequently this Court determined in the reference that the process of
their election and the Election Rules used therein were an infringement
of Article 50 of the Treaty. The learned Attorney General and both Mr.
Macharia and Mr. Nyaoga the learned counsel for the 2nd and 5th
Respondents respectively, contended that the Applicants armed with a
declaration of this Court that the process and the rules were unlawful or
an infringement of the Treaty would be able by virtue of the provisions of
Article 52 to move the High Court of Kenya to annul the elections.
However, the learned counsel for the 6th Respondent appeared to canvass
a different view more akin to that of counsel for the Applicants. He
submitted that such a declaration would have no consequence on the
election that has already been carried out under the Election Rules that
were competently and lawfully made under Article 50 of the Treaty by the
National Assembly of Kenya. He opined that the declaration would be
applied to the making of future procedure for the election of Members of
the EALA.

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We are constrained to state at the outset that the enormity of this
application cannot be over emphasised. The subject matter of the
restraining order prayed for is the EALA, a very important organ of the
Community. The implications of declining to grant the order and of
granting it are grave. In an affidavit in support of the application, Fidellis
Mueke Ngulli deponed that if the order is not granted not only the
Applicants will suffer irreparably but also “the legitimacy of [the] EALA
[will be] greatly imperiled by the unelected and irregularly wounded (sic)
members from Kenya”. On the other hand, in their respective affidavits
opposing the application, both the 3rd and 4th Respondents deponed that
“the EALA in particular, and the East African Community in general stands
to suffer great hardship if an injunction against the swearing in of the
Members of the EALA is issued.” –

It is trite law within the jurisdictions of the three Partner States in the
East African Community, that an applicant who seeks an interim
injunction must show a prima case with a probability of success.
Secondly, a court will not normally grant an interim order unless it is
shown that if the order is not made the applicant is likely to suffer
irreparable damage or injury.

We have read the pleadings and documentary annexures so far filed in

Court in the reference and in the motion. We also benefited tremendously
from the very able submissions by all learned counsel who addressed us.
We are satisfied that the applicants have shown that they have a prima
facie case with a probability of success. This of course is subject to what
pleadings the Respondents will bring in response to the reference. For
obvious reasons, at this stage we would wish to refrain from discussing
the merits of the case in any detail. The finding that there is a prima
facie case with a probability of success is to say no more than that if the

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Respondents do not put up any probable defence or response the
Applicants would succeed.

We also think that the second criterion for the grant of an interim
injunction is satisfied. It is apparent that in the present state of the law,
the hearing and determination of the reference after the affected persons
have taken office might not assist to prevent the alleged illegality being
perpetuated. We are satisfied that not only the Applicants but also the
EALA and the Community itself stand to suffer irreparable damage if it
turns out that one third of the Members of the EALA were not legally
elected. The fact that the out going Kenyan Members were elected in a
similar manner in 2001, should not be a source of solace but rather
should be a reason to determine soon if the process is illegal and ought
to be rectified.

Accordingly, we hereby grant an interim injunction restraining the 3rd

and 4th Respondents from recognizing the following persons as duly
elected Members of the EALA or permitting them to participate in any
function of the EALA until the final determination of the reference,
namely -.

1. Clerkson Otieno Karan,

2. Safina Kwekwe Sungu,
3. Gervase Akhaabi,
4. Christopher Nakuleu,
5. Sarah Godana,
6. Abdi Rahman Haji,
7. Reuben Oyondi,
8. Catherine Ngima Kimura, and
9. Augustine Chemonges Lotodo

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In this ruling we have given our full decisions on the three issues raised
in this application. We shall, however, give our detailed reasons for the
same later.

The costs of the application shall be in the cause.

Dated and delivered this -------day of November 2006

MOIJO. M . OLE KEIWUA

PRESIDENT

JOSEPH. N. MULENGA
VICE PRESIDENT

AUGUSTINO. S . L . RAMADHANI
JUDGE

KASANGA MULWA
JUDGE

JOSEPH. S . WARIOBA
JUDGE

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