Ayieyo and Another v Attorney General of the Republic of Kenya and Another (Application No.1 of 2024) [2025] EACJ 5 (3 March 2025) (Appellate Division)



# IN THE EAST AFRICAN COURT OF JUSTICE

# AT KIGALI, RWANDA

### APPELLATE DIVISION

**(Coram: Nestor Kayobera, JP; Anita Mugeni, VP; Kathurima M'lnoti;**

**Cheborion Barishaki and Omar 0. Makungu, JJA.)**

## **APPLICATION NO. 1 OF 2024 (ARISING FROM APPEAL NO. 1 OF 2023)**

### **BETWEEN**

**CHRISTOPHER AYIEKO** ............................................... **1st APPLICANT**

**EMILY OSIEMO .................................................... 2nd APPLICANT**

### **AND**

**THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA .............................. 1st RESPONDENT**

**THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY ........................ 2"0 RESPONDENT**

(Application to strike out the Record of Appeal in Appeal No. 1 of 2023 arising from the Judgment of the First Instance Division sitting at Kampala, Uganda by Yohane B. Masara, PJ; Charles 0. Nyawero, DPJ; Charles A Nyachae; Richard Muhumuza and Richard Wabwire Wejuli, JJ. dated 2nd December 2022 in Reference No. 5 of 2020).

### **RULING OF THE COURT**

#### **INTRODUCTION**

- 1. The Applicants filed a Notice of Motion dated 2"d February, 2024 seeking an order to strike out the entire Amended Record of Appeal dated 15th January, 2024 and filed in this Court on 25th January, 2024 by the Attorney General of the Republic of Kenya (the 1st Respondent). The Motion was taken out primarily under rules 91, 94 and 95 of the East African Court of Justice Rules of Procedure, 2019 (the Rules). - 2. The Applicants are citizens of the Republic of Kenya residents in Nairobi, Kenya. They were represented in this Application by Mr. Elisha Ongoya, Mr. Fleming Lumumba, Mr. Edmond Shikoli and Mr. Austine Kitinya, all learned Counsel. The Appellant was represented by Ms. Grace Mutindi and Mr. Thande Kuria, both Senior State Counsel while the Secretary General of the East African Community (the 3cd Respondent) was represented by Dr. Anthony Kafumbe, learned Counsel.

#### **BACKGROUND**

- 3. On 2"d December, 2022 the First Instance Division of this Court (the Trial Court) entered Judgment in favor of the Applicants in Reference No. 5 of 2020, which was delivered at Kampala, Uganda. - 4. The **1st** Respondent was aggrieved by the said Judgment and lodged a Notice of Appeal on 14th December, 2022. The Notice of

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Appeal was lodged within the period of thirty (30) days prescribed by rule 88(2) of the Rules. The 1st Respondent also served the Notice of Appeal upon the Applicants on 14th December 2022 which was within the period of fourteen (14) days prescribed by rule 89 of the Rules.

### **THE RECORD OF APPEAL AND SCHEDULING CONFERENCE**

- 5. The 1st Respondent filed the Record of Appeal in Appeal No. 1 of 2023 on 12th January 2023 in which it faulted the Trial Court for its failure to properly consider the matter before it. - 6. The Appeal came up for Scheduling Conference on 12th February, 2024 but the same could not be scheduled because the Applicants filed Application No. 5 of 2023 seeking to strike out the 1st Respondent's Record of Appeal on the ground that the 1st Respondent had failed to join the 2nd Respondent in the Appeal contrary to rule 89 (1) of the Rules. - 7. On the other hand, the 1st Respondent filed Application No. 6 of 2023 seeking leave to amend the Memorandum and Record of Appeal to include the Secretary General of the East African Community as a party to Appeal No. 1 of 2023. - 8. After deliberation on both Applications, the parties reached a consent, which was adopted as an order of the Court. The Order reads as follows:

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- I. Application No. 5 of 2023 is hereby withdrawn with costs to the Applicants in that Application; - II. Application No. 6 of 2023 is hereby allowed with no orders on costs; - Ill. the Attorney General of the Republic of Kenya shall amend and serve the Amended Record of Appeal upon the Secretary General of the East African Community within the next 14 days from today (8th November, 2023); - IV. the Secretary General shall file and serve his Scheduling Notes for the Appeal within 30 days upon service of the Amended Record of Appeal; and - V. Appeal No. **1** of 2023 shall be listed for Scheduling Conference in the next session of the Court.

## **THE APPLICATION TO STRIKE OUT THE APPEAL.**

- 9. Following the above orders of the Court, the said Appeal No. 1 of 2023 was listed for Scheduling Conference on 18th February, 2024. However, the same could not be scheduled because the Applicants lodged Application No. 1 of 2024, seeking to strike out the 1st Respondent's Record of Appeal. - 10. The Application is made under rules 91, 94 and 95 of the Rules which allow a party to apply to strike out the notice or record of appeal, as the case may be, where no appeal lies or where some essential step has not been taken at all or within the prescribed time.

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- 11. The Applicants in their Application prayed for the following orders, that: - i . the entire Amended Record of Appeal dated 15th January 2024 be struck out. - ii . costs of the Application be awarded to the Applicants. - iii. any other orders that this Court may issue as it deems fit to meet the ends of justice.

#### **ISSUES FOR DETERMINATION**

- 12. The issues for determination in this Application are; - i . whether the Court should strike out the entire Record of Appeal in Appeal No. 1 of 2023, and - ii . who should bear costs of the Application.

## **ISSUE NO. 1: Whether the Court should strike out the entire Record of Appeal in Appeal No. 1 of 2023.**

#### **a. The Applicants' case.**

- 13. During the oral hearing of the Application, Mr. Ongoya, learned Counsel for the Applicants, identified a number of factual imperatives, which he submitted were fatal to the Appeal. - 14. The first is that there was a direction by this Court that the Attorney General files and serves an Amended Record of Appeal within 14 days, that is an express order of this Court. The Record of Appeal was filed way beyond 45 days from the date of that order and no leave of this Court was sought to extend that time. Therefore, there is no competent Amended Record of Appeal in existence.

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- 15. The second is that the leave to amend was limited to introduce the Secretary General of the East African Community as a party to the Appeal. On the face of it, the Amended Record of Appeal introduces other facts well beyond introduction of the Secretary General as a party to the Appeal and no leave was sought and obtained for that scope of amendment. - 16. The third is that the Rules of this Court are explicit on the manner of carrying out an amendment to a pleading. The 1'<sup>1</sup>Respondent is supposed to strike out in red, what he was removing and underline in red what he was introducing. This Amended Record of Appeal flouts that rule with no explanation given. - 17. Finally, Mr. Ongoya submitted that the jurisprudence of this Court is explicit that an advocate on record for a party cannot swear an affidavit for that party. **Mr.** Thande Kuria, who was physically in the Court is the only deponent of the affidavit in response to this Application. - 18. In support of his submissions, Counsel relied on the decision of this Court in the case of **the Attorney General of the Republic of Burundi v. the Secretary General of the East African Community and another,** Appeal No. 2 of 2019. He called to aid the sentiments of the former Chief Justice of Uganda, Sir Udo Udoma, who advised that sometimes, the ends of justice are better served by striking out incompetent suits and appeals like the one before the Court.

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19. For the foregoing reasons, Mr. Ongoya urged the Court to find that this is one of those matters where the end of justice will certainly be better served by striking out the Appeal. He therefore prayed the Court to grant the Application and strike out Appeal No. 1 of 2023.

### **b. The Appellant's case**

- 20. The Appellant opposed the Application vide a Replying Affidavit sworn on 6th February, 2024 by Mr. Peter Thande Kuria, Senior State Counsel having conduct of this matter on behalf of the 1st Respondent. - 21. Mr. Kuria deposed that the Amended Record of Appeal was filed on 15th January, 2024 and served on 25th January, 2024. It is not by design, lethargy or malicious intent that the Amended Record of Appeal was filed and served past the period granted by this Court. - 22. Mr. Kuria averred that the Appellant was unable to file and serve the Amended Record of Appeal within the prescribed time owing to severe financial and human resource constraints on the part of the Appellant. - 23. Mr. Kuria further averred that the Court should not grant the Application to strike out the Appeal because the omission does not go into the heart of the matter since it does not in any way alter the substance of the Appeal to tilt the scales of justice to the detriment of the Applicants herein. Accordingly, he urged the Court to find that the Applicants had not suffered any prejudice and to dismiss the Application with costs. - 24. Taking over from Mr. Kuria, Ms. Mutindi expanded on the above response. She regretted the inadvertent omissions in the Record of Appeal but beseeched the Court to indulge the Appellant because of the difficulty that they had been experiencing in preparing the Memorandum and Record of Appeal. - 25. The 1st Respondent's Counsel submitted that when they were amending their Record of Appeal, they dropped the word 'fact' in ground 6 of Appeal for the simple reason that this Court's jurisdiction is limited to determining issues of law only. That move is not prejudicial to the Applicants, it does not affect the merit of the case, and it does not bring any contentious issues to justify the Applicants' fear that the 1st Respondent has gone beyond what the Court ordered them to do. - 26. Regarding the affidavit sworn by Mr. Kuria, Counsel explained that Mr. Kuria did swear the affidavit on those matters within his knowledge and therefore the affidavit was proper. She also indicated that during the preparation of that affidavit, they had to personally bear the expenses due to serious human and financial challenges they were then experiencing. - 27. It was Counsel's further contention that serious issues have been raised in the Appeal regarding bilateral relations among member States. It is important that this final Court of Justice determine these issues. For the above reason, the 1st Respondent urged the Court to dismiss the Application with costs and allow the Appeal to proceed to hearing and determination.

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#### **c. The 2nd Respondent's case.**

- 28. The 2"d Respondent's Counsel Dr. Kafumbe opposed the Application on the ground that the main Appeal raised fundamental questions relating to the interpretation of Article 37 of the Customs Union Protocol and Article 37 of the Common Market Protocol. - 29. He further submitted that it is not in dispute that certain mistakes were made during the preparation of the Amended Record of Appeal, but given the importance of this matter, he asked the Court to save the Appeal and proceed with the hearing of the Appeal. - 30. With regard to the directions that were given in Appeal No. 2 of 2019, he contended that there is a difference between the affidavits that were condemned in the **Attorney General of the Republic of Burundi v. the Secretary General of the East African Community and another** (supra) and what we have in this Application. In that case, he submitted, the Court rejected affidavits because counsel deponed to contentious matters and risked being called upon to abandon the Bar and be subjected to cross-examination, which is not the scenario in this case. Therefore Appeal No. 2 of 2019 is not relevant here. - 31. For the above reasons, Counsel prayed the Court to save the main Appeal and have this matter heard on merit. - 32. In his submission in rejoinder counsel for the Applicants' reiterated his earlier submissions, which we find unnecessary to rehash.

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#### **DETERMINATION BY THE COURT.**

- 33. We have carefully considered the Application and the submissions by the learned Counsel for both parties as regards issue No.1. Rule 91 of the Rules under which the Application is made entitles a party to an appeal to apply to the Court to strike out a notice or record of appeal, as the case may be, if no appeal lies or if some essential steps in the proceedings have not been taken at all or within the time prescribed by the Rules. The Applicants have listed a host of alleged violations of the Rules on the basis of which the Applicants urged the Court to strike out the 1st Respondent's Appeal. - 34. On their part, the 1st Respondent's Counsel readily conceded the inadvertent omission in the Record of Appeal. However, they beseeched this Court to indulge them because of the difficulties that they had been experiencing during the preparation of the Record of Appeal. - 35. In addition, the 1st Respondent submitted that the omissions are procedural matters which do not go into the heart of the Appeal and do not in any way alter the substance of Appeal. - 36. In the main Appeal, as correctly submitted by the Appellant and supported by Dr. Kafumbe for the 3cd Respondent, the Appeal raises fundamental questions relating to the interpretation of the Treaty which need the guidance of this Court to the Community owing to the increasing fact that Partner States are trying to conclude the agreements. On that basis they requested the Court to invoke rule 4

of the Rules and exercise its inherent powers and save this Appeal for the benefit of the Community.

- 37. Before we leave this issue, it is apt to address the Applicants' assertion that the Application to strike out the Record of Appeal is uncontested because the Appellant's affidavit was sworn by a State Counsel who appeared before the Court. As such, and based on the **Attorney General of the Republic of Burundi v. the Secretary General of the East African Community and another** (supra}, Mr. Ongoya argued that the affidavit is fatally defective. - 38. On the other hand, the 1'1 and 2nd Respondents maintain that the said affidavit is proper and the case cited by the Applicants is distinguishable from the present case. - 39. On our part, the case of **the Attorney General of Republic of Burundi v. the Secretary General of the East African Community and another,** cited by the Applicants' Counsel in our considered view, is distinguishable from the facts of this case. While in that case there was a scenario of counsel risking being called upon to abandon the Bar and be subjected to cross-examination, such possibility does not arise in this case. Counsel has sworn to facts within his own knowledge as the person responsible for the preparation and service of of the Amended Record of Appeal. So, there is a difference between the affidavits that were condemned in the **Attorney General of the Republic of Burundi v. the Secretary General of the East African Community and another** (supra) and what we have here.

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40. The foregoing said and done, we are satisfied that the Appellant has brought to the fore sufficient reasons why he did not file the Amended Record of Appeal within the timeframe prescribed by the Court and would, in the premises, reject the prayers sought in the Notice of Motion. Accordingly, we answer Issue No. 1 in the negative.

## **ISSUE NO. 2: Who should bear costs of the Application**

- **a. Applicants' case.** - 41. In relation to costs, the Applicants in their Notice of Motion, prayed for costs. They further prayed this Court to make any other orders that it deems fit to meet the ends of justice. They relied on rule 127 of the Rules and the decision of the **Attorney General of the Republic of Burundi v. the Secretary General of the East African Community and another (supra).** - **b. 1st Respondent's case.** - 42. On her part, Ms. Mutindi for the Appellant urged the Court to find the Application to strike out the Appeal has no merit and exercise its discretion not to award the costs to the Applicants. - **c. The 2nd Respondent's case.** - 43. On his part, Dr Kafumbe submitted that the issue of costs is entirely at the discretion of the Court. However, in the circumstance of this case, he prayed the Court not to award the costs.

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### **DETERMINATION BY THE COURT.**

44. Regarding costs, rule 127 (1) of the Rules provides;

"Costs in any proceedings shall follow the event unless the Court shall, for good reasons, otherwise order."

- 45. It is a general principle that costs follow the event, meaning that the costs of an action are usually awarded to the successful party. It is however important to note that even though this it is a general rule, the award of costs is at the discretion of the Court. In this Application, the delay which made the Application necessary was caused by the 1st Respondent. For that reason, the 1st Respondent is not entitled to costs. As for the 2nd Respondent, he did not pray for award of costs. - 46. In the end of it all, the present Application is not granted. The circumstances of this case are such that there should be no order as to costs.

## **DISPOSITION.**

- 47. Having so held, we make the following orders; - 1. The Application is hereby dismissed. - 2. Appeal No. 1 of 2023 shall be listed for Scheduling Conference in the next session of the Court. - 3. Each party shall bear its own costs.

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# IT IS SO ORDERED

DATED, DELIVERED AND SIGNED AT KIGALI THIS DAY OF **MARCH 2025** 03:2021 Nestor Kayobera **PRESIDENT Justice Anita Mugeni VICE PRESIDENT** Kathurima M'Inoti **JUSTICE OF APPEAL** Cheborion Barishaki **JUSTICE OF APPEAL** Omar O. Makungu **JUSTICE OF APPEAL**

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