(ii) The matter is Res judicata.
(iii)The Reference is inadmissible in this Court since local remedies have not
been exhausted.
(iv) The East African Community Treaty of 2000 cannot be applied
retrospectively.
(v)The Claimants’ statements are mere allegations without any proof of how
the Treaty or the various conventions listed therein have been infringed
by the Respondents or that the respondent is a signatory to them.
(vi ) The Objectives of the Treaty under Article 5 do not provide for the
redress of previous injustices, if any, to entitle the Claimants to rely on
Articles 6 and 7 of the Treaty.
It is necessary to point out from the outset that Counsel for the Respondent raised
the last three objections in his written submissions. They were not among the
objections he had raised at the scheduling conference. Nevertheless, we have
considered them in our ruling since it is trite law that a point of law can be raised
at any stage of the proceedings. The rationale is that it would save courts time and
resources if the objection can dispose of the case at the earliest. The record also
indicates that Counsel for the Respondents abandoned the point raised against
the capacity of the Claimants to institute these proceedings at the scheduling
conference and did not canvass it in his written submissions.
SUBIMSSIONS BY RESPONDENT’S COUNSEL
Counsel for the Respondent submitted, firstly, that since the Reference contains
allegations of violations of the Claimants’ human rights and is an appeal against
the decision of the Kenya High Court dismissing a similar complaint by the
Claimants in HCCS No. 1879 of 1997, in the absence of the protocol for the
extended jurisdiction of the Court, this Court lacks the jurisdiction to hear and
determine the same.
Secondly, Counsel submitted that the matter is barred by the doctrine of res
judicata, having been determined by the Kenya High Court in HCCS No. 1879 of
1997 between the same parties.
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