12. The Appellant contended, in particular, that their Lordships’
interpretation that
Article 30(2) does not apply to the continuing violations, in effect disregards the time
limit stipulated by that Article. Such an interpretation is an error of law because it
ignores and negates the ordinary meaning of Article 30(2).
13. The Appellant further contended that the Court had no inherent power to give an
interpretation which does not give effect to the Treaty; or which invalidates a Treaty
provision. Furthermore, by invalidating the time limit, the Court acted in violation of
Article 9(4) of the Treaty, which binds it as an Organ of the East African Community to
give effect to the provisions of the Treaty.
14. The Appellant highlighted the point that the effect of their Lordships’ interpretation
of Article 30 (2) is that regardless of a claimant’s knowledge of an infringement, he
remains at liberty to bring an action at any time as long as the infringing situation
continues. Actions would thus arise at the discretion of a claimant regardless of the
time lapse from when the infringement first occurred or when he first became aware of
it. Such an interpretation is erroneous. It invalidates the ordinary meaning of Article
30(2).
15. Lastly, the Appellant raised the issue of their Lordships’ reliance on their own
decision in Reference No.3/2010: Independent Medico Legal Unit v Attorney
General of the Republic of Kenya. That decision has since been overturned by the
Appellate Division of the Court in Appeal No.1/2011: Attorney General of the
Republic of Kenya v Independent Medico Legal Unit. The Appellate Division rejected
the concept of continuing violations; and opted, instead, for the strict interpretation of
Article 30 (2), with emphasis on upholding and protecting the principle of legal certainty.
16. In sum, the Appellant avers that the Court has a duty to interpret the East African
Community Treaty according to its ordinary meaning, and that the ordinary meaning of
Article 30 (2) of that Treaty is that a claimant is required to file his Reference within two
months of the act or after the offending act comes to the claimant’s knowledge.
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