Ngoge and Associates Advocates v Attorney General of the Republic of Kenya (Application No.37 of 2022) [2024] EACJ 10 (26 November 2024) (First Instance Division)


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IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

# **FIRST INSTANCE DIVISION**


(Coram: Yohane B. Masara, PJ; Richard Muhumuza, Richard Wabwire Wejuli, Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ)

# **APPLICATION NO. 37 OF 2022**

(Arising from **Reference No.12 of 2022**)

# PETER ODIWUOR NGOGE T/A O. P NGOGE & ASSOCIATES ADVOCATES ............ APPLICANT

**VERSUS**

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ....................................

26<sup>TH</sup> NOVEMBER 2024

# **RULING OF THE COURT**

# **A. INTRODUCTION**

- 1. This Application arises from **Reference No. 12 of 2022** lodged in this Court on 8th November 2022. On 9th November 2022, the Applicant filed this Application under Rules 4, 6, 48(c) and 51 (1) of the East African Court of Justice Rules of the Court, 2019 ("the Rules"). - 2. The Applicant presented himself as a citizen of the Republic of Kenya by birth and a practicing Barrister based in Nairobi, Trading under the name and style of M/s O. P. Ngoge & Associates Advocates. For the purposes of this Application, the Applicant's address of service is care of M/s O. P. Ngoge & Associates Advocates, c/o Coffee Plaza, 4th Floor, P. O. Box 3430-00200, Nairobi, Off Haile Selassie Avenue, Nairobi. - 3. The Respondent is the Attorney General of the Republic of Kenya, sued in **Reference No. 12 of 2022** in his representative capacity as the Principal Legal Advisor to the Government of Kenya. For the purposes of this Reference, the Respondent's address of service is the Office of the Attorney-General & Department of Justice, Sheria House, Harambee Avenue, P. O. Box 40112-00100, Nairobi. - 4. In the Notice of Motion, the Applicant seeks leave to amend the Statement of Reference on record and the Applicant's Reply to the Respondent's Response, in order to rectify accidental slips, omissions, or errors contained therein. Specifically, he sought Court's leave to correct the said slip-ups by deleting the word **"Claimant"** and replace it with **"Applicant".** The Applicant also prays to the Court

that the proposed Amended Statement of Reference and the Applicant's proposed Amended Reply to the Respondent's Response, filed on 8th November 2022, be deemed as duly filed and properly served upon the Respondent. The Applicant further sought consolidation of his References before this Court, namely: **Reference No. 12 of 2022, Reference No. 14 of 2022 and Reference No. 25 of 2021** as a way of saving Court's time, for they allegedly concern similar issues.

5. The Application is supported by the Affidavit in Support of the Notice of Motion deponed on 9th November 2022 by Peter 0. Ngoge, the Applicant herein.

#### **B. BACKGROUND**

- 6. The subject matter of **Reference No. 12 of 2022** from which the present Application arises relates to the 2012 Kenyan elections for the Speaker of the 9th Parliament. The Applicant contested the appointment of the Speaker, alleging that it was not conducted according to the Kenyan Constitution. - 7. The Applicant's challenge of the appointment was unsuccessful in the High Court, Court of Appeal and the Supreme Court of Kenya. Consequently, the Applicant lodged **Communication No. 432 of 2012** to the African Commission on Human and Peoples' Rights ("the African Commission") regarding the Speaker's appointment, for legal redress under the African Charter on Human and Peoples' Rights, (herein after "the African Charter"). Despite accepting the Communication, the African Commission did not proceed to the determination of the case on its merits.

8. Dissatisfied with the lack of action by the African Commission, the Applicant filed **Reference No. 12 of 2022** in this Court seeking remedies for the alleged inaction of the African Commission and the perceived violation of his rights under the Kenyan Constitution and the Treaty for the Establishment of the East African Community ("the Treaty").

# **C. REPRESENTATION**

9. At the hearing, the Applicant appeared in person, while the Respondent was represented by Ms Eve Mbedda, Principal State Counsel, Ms Wilkista Mumbi, Senior State Counsel and Ms Wanjiru Wanja, State Counsel, all from the Office of the Attorney General of the Republic of Kenya.

#### **D. PRELIMINARY OBJECTION**

- 10. During the course of hearing of the Application, Counsel for the Respondent submitted that they had raised a Preliminary Objection citing lack of jurisdiction of this Court to hear and determine the matter. - 11. To this end, the Court directed the parties to file written submissions on the Preliminary Objection and on the issue of consolidation of the References.

## **E. ISSUES FOR DETERMINATION**

**i. Whether this Court has jurisdiction to hear and determine the Application;**

**ii. Whether the References in question should be consolidated.**

### **F. DETERMINATION OF ISSUES**

# **ISSUE 1: Whether the Court has iurisdiction to hear and determine the Application**

### **i. The Respondent's Submissions**

- 12. The Respondent filed Submissions in Court on 22nd October 2024. Counsel submitted that this Court lacks jurisdiction over the Applicant's claim. That Article 27(1) of the Treaty limits the Court's jurisdiction to the interpretation and application of the Treaty. That the Applicant's claims, which pertain to the African Charter, fall outside the purview of this Court. Further, that the alleged actions pertain to the African Commission, an independent body distinct from the Respondent. Counsel maintained that **Communication No. 432 of 2012** was a matter submitted by the Applicant to the African Commission under the African Charter which this Court has no jurisdiction over. - 13. Further, Counsel for the Respondent contended that the Reference is time-barred under Article 30(1) & (2) of the Treaty. That, under Article 30(1 ), there is no act, regulation, directive, decision or action by the Respondent that has infringed upon the Treaty. That the alleged failure by the Respondent to file submissions at the African Commission in **Communication No. 432 of 2012** did not violate any rights of the Applicant. Counsel supports her argument in this regard by reference to the Applicant's Supporting Affidavit to the Claim where

the Applicant refers to the last letter he received from the African Commission regarding his Communication, which does not in any way attribute the delay by the African Commission to deliberate the Applicant's Communication to the Respondent.

- 14. Counsel for the Respondent further submits that Article 30(2) requires proceedings before this Court to be instituted within two months of the alleged violation or of when such violation came to the knowledge of the Complainant. That the Applicant admits to have last heard from the African Commission on his Communication vide a letter dated 16th March 2017, and yet filed the current Reference five years later, on 11 th March 2022; though, according to the Respondent, he attempts to sanitize the delay by filing a demand letter dated 20th February 2022. Counsel referred the Court to its own jurisprudence in **Attorney General of the Republic of Uganda and Another vs Omar Awadh and 6 Others, EACJ Appeal No. 2 of 2012,** where the Court held that the Court is not flexible of the requirement under Article 30(2) of the Treaty. Further, that there is no provision in the Treaty that recognizes the concept of continuing violations. - 15. On the issue of consolidation, Counsel for the Respondent argues that, under Rule 6 of the Rules, there must be sufficient reasons for matters to be consolidated. - 16. To elaborate more on "sufficient reason", the Respondent cited the Kenyan Supreme Court case of **Omoke vs Kenyatta** & **83 Others (Petition 11 (E015) of 2021) [20211 KESC 27 (KLR),** which held that "consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or

appeals and where it is desirable that all the related matters be disposed of at the same time."

17. Counsel for the Respondent submitted that the Application for consolidation of **Reference No. 12 of 2022** with **Reference No. 14 of 2022** and **Reference No. 25 of 2021** fails as the Applicant has not demonstrated sufficient common questions to warrant consolidation. That the three References differ both procedurally and substantively and as such the Application for consolidation should be dismissed.

#### **ii. The Applicant's Submissions**

- 18. In response to the Respondent's Preliminary Objections, the Applicant did not specifically address the issue of this Court's jurisdiction as directed by the Court at the hearing. He instead filed written submissions on 6th November 2024 under the title **"The Doctrine of State Responsibility Under International Law",** in which he urges the Court to find that the African Charter, which was freely ratified by Kenya on the 23rd January 1992 was internalized by the People of Kenya in the 2010 popular plebiscite to become an integral part of Kenya's Municipal Laws by virtue of Article 2(6) of the Constitution of Kenya, 2010. - 19. It is the Applicant's submission that in interpreting and applying the said African Charter the African Commission exercises a sovereign Authority and is therefore bound to apply and interpret the said African Charter while observing Article 10 of the Constitution of Kenya 2010, failing which its actions or omissions, as are being complained of by the Applicant in **References No. 25 of 2021** and **Nos.12** and **14 of 2022** would contravene Articles 6(d) and 7(2) of the Treaty.

- 20. The Applicant submitted that the delays by the African Commission reflect gross procedural unfairness. He outlines specific failures, such as the African Commission's refusal to publish his submissions, provide updates, or take reasonable steps to resolve the matter. He argues that these procedural violations amount to a breach of natural justice. - 21. The Applicant asserts that the African Commission effectively became an organ of the Kenyan State through the internalization of the African Charter under Article 2(6) of the Constitution of Kenya. This transformation, he contends, renders the African Commission's actions or omissions subject to scrutiny by this Court. - 22. On the issue of consolidation, the Applicant urges the Court to find that the Applicant brought this Application because the Respondent's Preliminary Objections as raised herein are exactly the same as the Preliminary Objections the Respondent had filed and raised in **Reference No. 25 of 2021** and in **References Nos. 12 and 14 of 2022.** - 23. That the Court should find that the Applicant's prayer seeking to compel the Respondent to deposit the declaration under Article 34(6) of the Protocol on the Establishment of the African Human Rights Court is common in **Reference No. 25 of 2021** and in **References Nos. 12 and 14 of 2022.** - 24. In the Premises, the Applicant submitted that the prayer for consolidation or merger of the three References is a very reasonable and fair request intended by the Applicant to save the Court's time, to

prevent numerous litigations over similar issues and common questions of law and facts and to accord the parties fair hearing.

25. That this Application should be allowed since the Respondent has not demonstrated which prejudice it is likely to suffer with the merger to enable the court to decide common questions of law and facts arising from the Respondent's said Preliminary Objections and Article 34(6) on the Protocol for the Establishment of the African Human Rights Court.

#### **111. Determination of Issue 1**

26. Jurisdiction refers to the ability or competency of a court to consider and decide a particular matter. On numerous occasions this Court has pronounced itself on matters pertaining to jurisdiction. In the case of **The Attorney General of the United Republic of Tanzania vs Anthony Calist Komu, EACJ Appeal No. 2 of 2015,** this Court outlined three types of jurisdictions: ratione personae, ratione materiae and ratione temporis. It explained them as follows:

> **"Lack of ratione personae would arise where one of the parties is devoid of the requisite capacity or locus standi to appear before a court. On the other hand, court's ratione materiae may be questioned on the basis of the invoked subject matter, an international court having no ratione materiae to try a matter where the treaty or convention Reference No. 6 of 2020 Page 15 under which it derives its mandate does not grant it jurisdiction over designated actions. In the case of the Treaty for the Establishment of the East African** **Community, such ratione materiae is outlined in Articles 30, 31 and 32 thereof. Ratione temporis, on its part, refers to time-frame prescribed for the institution of cases in a court."**

- 27. The Respondent in this Application has questioned this Court's jurisdiction ratione materiae and ratione temporis. - 28. On the jurisdictional limb of ratione materiae, the Applicant's claims in **Application No. 37 of 2022** revolve around the African Charter and the procedures of the African Commission. The Applicant contends that the Respondent's failure to deposit the declaration under Article 34(6) of the African Charter constitutes a violation of the Treaty, thereby granting this Court jurisdiction. - 29. The Respondent argues that the matter concerns the African Charter and African Commission procedures, which falls outside the scope of the Treaty and, therefore, this Court's jurisdiction. The Respondent specifically cites Articles 23, 27 and 30 of the Treaty to support its claim. That while the Applicant alleges that these actions have infringed upon his rights under the Treaty, the core of the dispute lies outside the Treaty's ambit. - 30. As earlier stated, the jurisdiction of this Court is explicitly defined by the Treaty, particularly in Articles 23 and 27. Article 23(1) establishes that the Court's primary role is to ensure adherence to law in interpreting and applying the Treaty. Article 27(1) further clarifies that the Court's jurisdiction extends to matters related to the interpretation and application of the Treaty itself.

31. In Article 23(1 ), the Treaty provides:

**"The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with the Treaty."**

32. It then Provides thus in Article 27(1 ):

**"The Court shall initially have jurisdiction over the interpretation and application of this Treaty.**

**Provided that the Court's jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States."**

33. The Treaty also makes provision for reference by natural or legal persons to the Court under Article 30 of the Treaty on which the Preliminary Objection is based. Article 30 reads:

> **"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 ground that such act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty."** (Emphasis added)

34. The African Charter is a separate and distinct international instrument, and the African Commission is an independent body

established under Article 30 of that Charter, to promote Human and Peoples' Rights and ensure their Protection.

- 35. As such, the African Commission is neither an organ or institution of the Community envisaged under Article 9 of the Treaty such that complaints against it would warrant a party's right to invoke this Court's jurisdiction. This Court's jurisdiction does not extend to the interpretation or application of instruments outside the Treaty. As per Article 27(1 ), the Court's role is to ensure adherence to the law in the interpretation and application of the Treaty, not to adjudicate on matters concerning other international agreements or bodies. - 36. The Applicant's attempt to establish a link between the Respondent's actions and the Treaty through Article 2(6) of the Constitution of Kenya is insufficient to confer jurisdiction on this Court. - 37. While the Court acknowledges the importance of human rights and the domestic incorporation of international instruments, this does not automatically expand the Court's jurisdictional mandate. The Applicant's argument that the African Commission effectively became an organ of the Kenyan State through the internalization of the African Charter under Article 2(6) of the Constitution of Kenya does not stand. The African Commission is an independent body and not an organ or institution of a Partner State. - 38. In the instant Application, while the Applicant alleges violations of Articles 6(d) and 7(2) of the Treaty, the fundamental issue centres on the Respondent's actions related to the African Charter, an instrument external to the Treaty. This Court recognizes that it has jurisdiction to determine whether a decision by a national court

constitutes an infringement of the Treaty. However, this Court is not persuaded by the Applicant that the Respondent's alleged failure to deposit a declaration under Article 34(6) of the African Charter, which is a matter related to the African Commission, directly infringes upon the Treaty.

- 39. The Court finds that the Applicant's reliance on Article 2(6) of the Constitution of Kenya is misplaced in this context. The fact that Kenya's Constitution incorporates international law does not automatically expand this Court's jurisdiction to encompass all international human rights instruments. The Court's jurisdiction is limited to resolving disputes related with interpretation, compliance and application of the Treaty. - 40. The Court reiterates its established position that treaties, protocols and agreements, such as the African Charter, do not extend its jurisdiction unless specifically and explicitly designed for that purpose. In the case of **Modern Holdings (EA) Ltd. vs Kenya Ports Authority, Reference No. 1 of 2008,** citing the case of **Christopher Mtikila and Others vs the Attorney General of the United Republic of Tanzania, EACJ Reference No. 2 of 2007,** the Court emphasized its limited jurisdiction and its inability to entertain matters outside the Treaty's scope. The Court's jurisdiction is primarily concerned with ensuring compliance with the Treaty and facilitating its effective implementation. - 41. In light of the clear provisions of Article 27(1) of the Treaty and the established jurisprudence of this Court, we find that the Court lacks jurisdiction ratione materiae to hear and determine **Application No.**

**37 of 2022.** The Applicant's claims fall outside the purview of the Treaty as the alleged actions pertain to the African Commission, which is an independent body distinct from the Respondent.

42. On time limitation (ratione temporis) we note that this Court's jurisdiction is provided for in Article 30(2) of the Treaty, where it states that:

**"The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be."**

43. The issue of time limitation has extensively been dealt with by this Court. In **Attorney General of Kenya vs Independent Medical Legal Unit, EACJ Appeal No. 1 of 2011,** this Court stated that a Claimant cannot avoid the time limitation by alleging a continuing breach or violation of the Treaty. The Court said:

> **"The Treaty does not contain any provision enabling the Court to disregard the time limit of two months and that article 30(2) does not recognize any continuing breach** . **or violation of the Treaty outside the two months after a relevant action comes to the knowledge of the Claimant."**

44. The Respondent's submission that the Applicant admited to have last heard from the African Commission on his Communication vide a letter dated 16th March 2017, and yet filed the current Reference five years later, on 11 th March 2022, was uncontroverted by the Applicant. Thus, the Application before this Court as well as **Reference No. 12 of 2022** from which it emanates from fall outside the jurisdictional mandate of this Court.

- 45. Having carefully considered the arguments presented by the parties herein and the relevant provisions of the Treaty, we find that the Applicant's claims pertain primarily to the African Charter and the African Commission, which matters are outside the scope of the Treaty. Thus, the Court lacks jurisdiction to hear and determine **Application No. 37 of 2022.** - 46. We say so because jurisdiction is fundamental. Without jurisdiction we cannot exercise any of the powers bestowed upon us by the Treaty. In the case of **Attorney General of the United Republic of Tanzania vs African Network of Animal Welfare, EACJ Appeal No. 3 of 2011,** the Court stated that:

**"Jurisdiction is a most, if not the most, fundamental issue that a Court faces in any trial. It is the very foundation upon which the judicial edifice is constructed; from which springs the flow of the judicial process. Without jurisdiction, a Court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of the case."**

47. Without jurisdiction, the Court finds no powers to proceed to decide on the issue pertaining to a request for consolidation.

- 48. Regarding costs, Rule 127 (1) of the Rules provides that **"Costs in any proceedings shall follow the event unless the Court shall for good reasons otherwise order."** - 49. We see no reason to depart from this Rule, and we, thus, award costs of this Reference to the Respondent.

## **G. CONCLUSION**

- 50. In view of the foregoing, the Court finds that it has no jurisdiction to determine this Application as well as **Reference No. 12 of 2022.** - 51. In the result, the preliminary objection by the Respondent is sustained. This **Application,** as well as **Reference No. 12 of 2022,** are herein dismissed with Costs. - 52. It is so ordered.

Dated, signed and delivered at Arusha this 26<sup>th</sup> day of November 2024.

Hon. Justice Yohane B. Masara PRINCIPAL JUDGE Hon. Justice Richard Muhumuza JUDGE Hon. Justice Richard Wabwire Wejuli **JÙDGE** Hon. Justice Dr Léonard Gacuko **JUDGE** xxun $\overline{1}$

Hon. Justice Kayembe Ignace Rene Kasanda **JUDGE**