Kenya’s Supreme Court has declared that its decisions cannot be subjected to review by the East African Court of Justice (EACJ).

In a blow to opposition leader Martha Karua and Senior Counsel Ahmednasir Abdullahi, the country’s apex court said decisions rendered by the regional court over judgments that have been finalised by the Supreme Court have no legal consequences.

“We further hold that domestic courts and regional courts, in this case, the EACJ, do not have a vertical relationship, meaning that decisions of the Supreme Court are not subject to appeal at the EACJ. The EACJ also does not have a merit review jurisdiction over decisions of the Supreme Court,” the bench presided over by Chief Justice Martha Koome ruled.

Attorney-General Justin Muturi had sought the opinion of the court on the legal consequences and effects of decisions of the EACJ on Kenya's sovereignty.

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Mr Muturi said whereas there is no express provision in the East African Community (EAC) Treaty conferring upon the EACJ the jurisdiction to interpret the constitutions of partner States, the regional court has, in a number of decisions, interpreted its jurisdiction to include the review of decisions issued by apex courts of partner States.

According to Mr Muturi, the decisions of the EACJ end up conflicting with judgments issued by the Supreme Court.

Mr Muturi added that if this trend continues, he is apprehensive that the purported exercise of an appellate jurisdiction by the EACJ over decisions by national courts might pose a conflict with Kenya’s commitment to the rule of law.

“This is because the decisions would end up creating an absurd situation where differing holdings on similar questions based on the same facts are made by Kenyan courts on one hand and the EACJ on other hand, thereby exposing the government and the people of Kenya to a legal dilemma on whether it should comply with contradictory yet binding decisions from the two courts.”

He cited a decision of the regional court awarding the Narc-Kenya party leader Karua Ksh2.7 million ($2,0690) in damages for infringement of her right to fair trial, in 2019.

Ms Karua filed the case in the regional court after the Supreme Court dismissed her 2017 petition challenging the election of Kirinyaga Governor Anne Waiguru.

She and Ugandan lawyer Male Mabirizi also filed another case before the EACJ challenging the outcome of the August 9, 2022, presidential election soon after the Supreme Court dismissed several petitions challenging President William Ruto’s win in the contested polls.

Mr Abdullahi has equally moved to the regional court citing various violations after the Supreme Court imposed on him an indefinite ban over persistent attacks on the judges of the apex court.

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Ms Karua opposed the application, arguing that Mr Muturi was inviting the Supreme Court to usurp the role reserved to the regional court by the EAC Treaty.

Through lawyer Dudley Ochiel, Ms Karua submitted that Article 27 of the Vienna Convention forbids State parties, like Kenya, from invoking provisions of its internal law as justification for failure to perform a Treaty.

She said Kenya’s Attorney-General was abusing the advisory opinion process, to escape complying with lawful court decisions.

Mr Ochiel submitted that the reference by the Attorney-General was instituted with the intention of depriving her of the remedy given to her and affirmed on appeal by the EACJ, which Kenya has failed to comply with since 2019.

He said the issues raised in the case were either concluded or pending litigation before the regional court and are thus either resolved or unripe for the advisory jurisdiction of the court.

The Supreme Court judges said the EAC Treaty has acknowledged that the organs of the EAC shall act only and perform such functions as are conferred on them by or under the provisions of the Treaty.

“Therefore, in accordance with the EAC Treaty, EACJ’s mandate is the interpretation and application of the EAC Treaty only and we hold and find that the EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya in matters concerning the interpretation and application of the Constitution of Kenya or any other matter arising from the latter’s decisions,” said CJ Koome, Deputy CJ Philomena Mwilu and Justices Mohamed Ibrahim, Dr Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.

The judges said the Constitution envisages the Supreme Court as the final judicial authority in asserting the supremacy of the Constitution and the sovereignty of the people of Kenya would be undermined if the converse situation were to apply.

“It should, however, be noted that mere disagreement with the interpretation that domestic courts have made of pertinent legal provisions does not constitute violations of the EAC Treaty. Interpretation of the Constitution or national laws and weighing of evidence is the mandate of domestic courts, which cannot be replaced by the EACJ in that regard,” the judges added.

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The judges added that the regional and international courts such as the EACJ are, by treaty or convention, granted the mandate to examine how State organs satisfy regional or international obligations of the State to interpret and apply national laws save for matters determined with finality by the Supreme Court.

The court said the EAC Treaty being part of the Kenyan laws must be subservient to the Constitution and if there is any conflict regarding the hierarchy of the Kenyan courts and the courts created by the Treaty, the provisions of the Constitution take precedence over those of the Treaty.