NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL

JUSTICE

STUDENT’S NO.: 2100102312

INDEX NO.: 2022/FEB/LLB/B229835/DAY

COURSE UNIT.: LAW OF THE EAST AFRICAN COMMUNITY

LECTURER.: COUNSEL BAKU

Question: critically discuss the circumstances under which the east African court of
justice may exercise its jurisdiction to grant interim measures.
Introduction

The East African Court of Justice (EACJ), 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. The East African Court of justice was established in November 2001,

with the major responsibility of ensuring adherence to law in the interpretation and

application of and compliance with the EAC Treaty.

The east African court of justice is vested with the jurisdiction to grant interim orders under

Article 39 of the establishment of the east African community and the same is regulated

procedurally under the provisions of Rules of Procedure of the east African court of justice1

Interim orders what are sometimes referred to as preliminary injunctions or interlocutory

orders are orders of the court commanding or preventing an action, and that the applicant of

the same must show that there is no plain, adequate, and complete remedy at law and that an

irreparable injury will result unless the relief is granted.

There are circumstances under which the interim measures can be exercised by the East

African court of Justice and these were clearly laid in the case of Francis Ngaruko v

Attorney General of the Republic of Burundi2. These were as discussed below:

1. The court needs to be satisfied that there is a serious question to be tried on the

merits of the applicant’s reference, that the applicant has a cause of action that

depicts substance and reality.

For example, in the case of Henry Kyarimpa v The Attorney General of the Republic of

Uganda3. the court made it clear that for an interim order to be granted there has to be a

prima facie case. The crux of this limb being that the issues rose in the Reference (thus the

1
Rule 21 to 23, the court’s Rules of Procedure
2
EACJ Application No. 3 of 2019
3
[2012-2015] EACJLR 390
main case) has to be arguable and on this test the court set it that the issues which are

arguable are those of the facts which disclose a bona fide claim to be determined by the court.

The court stated that the Reference calls for an interrogation of the court on serious matters of

violation of the Treaty for the Establishment of the East African Community thus the

violation of Articles 6 (d), 7(2) and 38 (2) and Article 30 of the same. The court viewed that

the claims raised in the Reference are so serious since they touch on serious matters as

enshrined in the Treaty; significantly, Article 6 (d) of the Treaty makes it that good

governance and the rule of law among other things forms part of the Fundamental Principles

of the East African Community, Article 7(2) requires Partner States to abide to Article 6(d)

and Article 38(2) requires a Partner State with a is involved in a dispute which is referred to

in the court to refrain from doing acts which might be detrimental to the resolution of the

dispute or that might aggravate the dispute. The court saw that the claims over violation of

those provisions of the Treaty are so serious and therefore qualifies the first test for grant of

the interim injunction.

More so, in British American Tobacco v AG of Uganda4, was held that: with the context of

EAC law, a cause of action demonstrating the prevalence of a serios triable issue has been

held to exist where the reference raises a legitimate legal question under the court’s legal

regime as spelt out in Art 30(1); more specifically where it is the contention therein that the

matter complained of violates the national law of the partner state or infringes any provision

of the Treaty.

2. An interlocutory injunction will not normally be granted unless the applicant

might otherwise suffer irreparable injury which would not adequately be

compensated by an award of damages.

4
EACJ Application No.13 of 2017
In the case of Henry Kyarimpa v The Attorney General of the Republic of Uganda

(supra), for an order on interim injunction to be granted an applicant must satisfy the court

that he will suffer an irreparable harm. The court pointed that this test requires that for a harm

to be irreparable one it must be that harm which will never be compensated by way of

damages. It was the argument by the applicant that his professional injury for procurement

consultancy to the M/S China International Water and Electricity Corporation and the

procurement industry at large cannot be compensated by way of damages, on the other hand

the respondent argued against that contention to the effect that professional fees are

recoverable. The court was in agreement with the Respond to the effect that the professional

fees as claimed to be by the Applicant to be irreparable are specific and that the amounts for

the tender of the project are also specific and they can thus be compensated by way of

damages. The court pointed that the claim that the failure to grant an interim injunction will

damage the procurement industry of Uganda though it can be irreparable but the same was

hypothetical and far-fetched. On the aspect of the violation of Article 6 (2) of the Treaty on

the Rule of Law the court stated that the same can be an irreparable harm, thus, on violation

of non-detonable rights there cannot be an amount of money that can compensate a person so

injured, but the court made it clear that such allegations are most direct on the violation of the

Bill of Rights as encapsulated in the Constitutions, but for one to find that the same is

covered in the Treaty one has to show the direct connection between the provisions of the

Treaty and the non-denotable rights, the same which was not sufficiently addressed by the

Applicant.

Further in Mary Erivina & Anor v A.G of Kenya & Anor5, “the court stated that an

interlocutory injunction will not normally be granted unless the applicant might otherwise

5
EACJ Application No.3 of 2010
suffer irreparable injury, which would not adequately be compensated by an award of

damages.”

More so in the case of Castro Pius v A.G of Burundi & 6 Others6, it was established that an

injunctive order is not allowed where the applicant fails to establish that they would suffer an

irreparable injury that could not be compensated by an award of damages.

3. If the court doubts, it will decide an application on the balance of convenience.

In the same case of Henry Kyarimpa v The Attorney General of the Republic of Uganda

(supra), the court pointed that, for an application for interim injunction to be granted, the

court has to look at the balance of convenience. This test significantly requires that the court

in granting the order it must examine the balance on what is convenient between granting an

interim order or denying to grant the same. The court found that in this matter what was

convenient was to reject the grant of an interim order on the ground that since the

construction of the Karuma Hydro Power Plan had already commenced and funds were

already pumped into it, thus the order to restrain its implementation will be nothing but a

burden to the taxpayer in Uganda. The court made a reference to its decision in Timothy

Alvin Kahoho v Secretary General of the East African Community, to the effect that the

grant or not to grant interlocutory injunctions is laid in the Court’s discretion, and that such

discretion has to exercised judiciously at all times. And the court finally, denied the grant of

an interlocutory injunction.

Conclusion

The circumstances under which the East African Court of Justice can give interim orders are

not so very many. The very few decollated ones were stated by the same court in the case of

Francis Ngaruko v Attorney General of the Republic of Burundi7 as; 1) 1.The court needs
6
EACJ Application No.11 of 2016
7
EACJ Application No. 3 of 2019
to be satisfied that there is a serious question to be tried on the merits of the applicant’s

reference, that the applicant has a cause of action that depicts substance and reality; 2) An

interlocutory injunction will not normally be granted unless the applicant might otherwise

suffer irreparable injury which would not adequately be compensated by an award of

damages; 3) If the court doubts, it will decide an application on the balance of convenience.

The same court laid gave directions on how these circumstances were to be tested in the case

of Adam Kyomuhendo V AG of Uganda and 6 Ors 8, where the court held that “The

conditions for granting an interlocutory injunction are sequential so that the second condition

can only be addressed if the first one is satisfied and, only when the court is in doubt would

recourse be made to the third condition”.

8
EACJ Application No. 11 of 2020
BIPLIOGRAPHY:

TEXT BOOKS
4. The East African Community: Challenges and Opportunities to Lawyers, Asherry B P
Magalla
5. Guidance on the gran of interim order, high court of Uganda
Office instruction no.1 of 2014
CASE LAW
6. Henry Kyarimpa v The Attorney General of the Republic of Uganda [2012-2015]
EACJLR 390
7. Mary Erivina & Anor v A.G of Kenya & Anor, EACJ Application No.3 of 2010
8. Timothy Alvin Kahoho v Secretary General of the East African Community
9. British American Tobacco v AG of Uganda, EACJ Application No.13 of 2017
10. Francis Ngaruko v Attorney General of the Republic of Burundi, EACJ Application
No. 3 of 2019
11. Adam Kyomuhendo V AG of Uganda and 6 Ors, EACJ Application No. 11 of 2020
STATUTES
12. Rules of Procedure of the east African court of justice
13. Treaty for the establishment of the East African Community