21. The Respondent State submits that the Complainants have failed to
exhaust available local remedies. According to them, there were multiple
domestic remedies open to the Complainants following the decision of the
Kenyan Court of Appeal. They could, the State maintains, file an
Application for Review before the same court if they were not satisfied
with the Court’s decision. To support this position, the Respondent State
cites the case of Mahinda-v-Kenya Power and Lighting Company Ltd1
and Musiara-v- Ntimama2 wherein the Kenyan Court of Appeal declared
itself competent to re-open an appeal that it had already determined in
order to among other things, avoid real injustice in exceptional
circumstances.
22. The Respondent State further argues that other than making an
Application for Review in the Court of Appeal, the Victim could apply for
enforcement of her rights under Section 84 (1) of the Kenyan Constitution
to the High Court of Kenya which has original jurisdiction to enforce the
aforementioned Section of the Constitution.
23. The Respondent State also contends that the Complainants failed to
exhaust available quasi-judicial remedies by not bringing their case before
the Public Complaints Standing Committee or the Kenya National
Commission on Human Rights; an independent human rights institution
established by an Act of Parliament in accordance with the Paris
Principles with a wide jurisdiction to hear matters such as the one brought
by the Complainants before the African Commission.
24. The Respondent State finally submits that as per the principles of public
international law, the interpretation of laws by national courts is binding
1
2
(2005) 2 EA 102 (CAK)
(2005) 1 EA 317 (CAK)
5