refusal to pay the claimants their terminal benefits for the services they rendered
to the defunct EAC violate the principles of accountability, transparency, social
justice, and also fall below the universally accepted standards of human rights and
are therefore an infringement of Articles 6(d) and 7(2) of the Treaty. In deciding
this issue, the Court will be required to interpret the provisions of the Articles
cited.
On the other hand, the issues framed by the Court in the HCCS No.1879 of 1997
were:
“Firstly, when was pension payable?
Secondly, had the Government complied with the Mediation Agreement?
Thirdly, should the declarations and orders sought be granted?
Fourthly, in any event is the suit time barred?
Fifthly, who should pay the costs? ‘’.
In that case, as can be discerned from the judgment, the Kenya High Court
interpreted and applied the provisions of the Mediation Agreement as well as the
relevant Kenyan laws.
From the foregoing, it is clear that the issues before this Court are not similar or
substantially the same ones which were litigated before the Kenya High Court. We
therefore agree with the Claimants’ Counsel that the doctrine of res judicata does
not apply to this Reference.
3. Exhaustion of local remedies
The rule is to the effect that a state should be given an opportunity to address an
alleged wrong within the framework of its own domestic legal system before its
international responsibility can be called into question. The exemption is where
the domestic remedy is unavailable or may result into undue delay. It has been
incorporated into several human rights conventions including the African Charter
on Human and People’s Rights (See Article 50). It is a question of admissibility and
not of substance. There is, however, no express provision in the Treaty requiring
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