A. Conditions of admissibility in contention between the Parties
30. The Respondent State raises two (2) objections to the admissibility of the
Application, the first one relating to the requirement of exhaustion of local
remedies
and
the second
one to the filing of the Application
within
a
reasonable time under Rules 40 (5) and (6) of the Rules, respectively.
Objection based on non-exhaustion of local remedies
31. The Respondent State submits that the right to seek review of a judgment
of the Court of Appeal is not automatic. It depends on the conditions set out
in Rule 66 of the Rules of Procedure of the Court of Appeal. They claim that
one of the conditions to be met is that an application for review must be filed
within sixty (60) days of the decision which is sought to be reviewed. The
Respondent State argues that the Applicant has not produced any evidence
to prove that he has complied with this condition and further, he has not
attached any evidence to prove that he sought leave of the Court of Appeal
to file the application for review.
32. Citing the African Commission on Human and Peoples Rights’ decision in
the
Communication
SAHRINGON
and
Others
v.
Tanzania,
Article
19 v.
Eritrea and Kenyan Section of the International Commission of Jurists and
Others
domestic
v. Kenya,
the Respondent
remedies
is
a
State submits that the exhaustion of
fundamental
principle
in
international
law.
Therefore, the Applicant may still file a constitutional petition under the Basic
Rights and Duties Enforcement Act or apply for review under the Appellate
Jurisdiction Act.
33. The Respondent State argues that the Applicant is raising the claim of denial
of legal assistance for the first time before this Court whereas he ought to
have raised it before domestic courts. It states that if the “court entertains
this matter it will be unclothing the domestic court of the jurisdiction to
adjudicate on domestic issues and clothing itself with jurisdiction of a first
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