However, in this Reference, this Court is neither being asked to adjudicate on a
dispute concerning violation of human rights per se nor to exercise an appellate
jurisdiction over the decision by the Kenya High Court. The Court is being asked to
determine whether the alleged failure by the Kenya Government to pay the
Claimants their terminal benefits constitutes a violation of Articles 6(d) and 7(2) of
the Treaty. The fact that the Reference also contains allegations of violations of
human rights under the conventions listed therein cannot prevent this Court from
exercising its mandate under Article 27(1) of the Treaty. We have considered this
objection and come to the same conclusion in a number of references including
James Katabazi & 21 Others ‐vs. ‐ The Secretary General of the EAC and the AG
of the Republic of Uganda (supra). We still hold the same view.
This point of objection is accordingly overruled.
2. Res Judicata
The doctrine is defined in the Civil Procedure Acts of Kenya, Uganda and Tanzania
as follows:
No Court shall try any suit or issue in which the matter directly and substantially
in issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a court
competent to try such subsequent suit in which such issue has been
subsequently raised, and has been heard and finally determined by such Court.
The doctrine has been applied in this Court in a number of references including
James Katabazi & 21 others (supra) where the Court stated that for the doctrine
to apply:
(i) the matter must be ‘directly and substantially’ in issue in the two suits,
(ii) the parties must be the same or parties under whom any of them claim,
litigating under the same title; and
(iii)The matter must have been finally decided in the previous suit.
In the present Reference, the issue which this Court is being called upon by the
Claimants to determine is basically, whether the alleged failure, neglect and/or
6