20 January 2013

Kenya: Attorney General Against Mt. Elgon Eviction Case Review

Kampala — The Kenya's Attorney General has asked the Appellate Division of the East African Court of Justice (EACJ) to dismiss the application by Independent Medical Legal Unit (IMLU).

IMLU seeks to review the court's judgment which was rendered on 15th March 2012 in favor of the Kenyan government. This followed court's ruling that the matter was filed out of time.

Appearing before Justices Harold Nsekela, President, Philip Tunoi, Vice President, Emillie R. Kayitesi, Laurent Nzosaba and James Ogoola last week, State Attorney Mr. L. Ngugi Muiruri representing the Attorney General of Kenya argued that EACJ does not have the jurisdiction to review its own judgment and that the application was not properly before the Court.

He said that there are no errors shown as alleged that the court did not consider the police report and no grounds as well to show that injustices have been caused to the applicants.

Ms. Kethi Kilonzo, an advocate for the unit however asked court to allow the application and find that it has the jurisdiction to review the judgment under Article 35 (3) of the Treaty for Establishment of East African Community.

The Article provides that an application for review of judgment may be made to the court only if it is based upon the discovery of some fact which by its nature might have had decisive influence on the judgment, if it had been known to the Court at the time the judgment was given, but which fact, at that time was unknown to both the Court and the Party making an Application.

She argued that the court concentrated on the errors of Laws not errors of facts and evidence and therefore did not consider the police investigation report which was substantial in considering the computation of time under Article 32 of the Treaty and therefore caused injustices.

The subject of the matter is where the Kenyan government is accused of failing to investigate, prosecute and punish those responsible for executions, acts of torture, cruelty, inhuman and degrading treatment of over 3,000 Kenyan residents in Mount Elgon district was in contravention of the Treaty.

The said acts were a result of land settlement schemes in the Mt. Elgon area where an armed militia known as Saboat Land Defence Force was formed in the district and grew to terrorize and execute residents of that area, causing the government to deploy security forces to carry out an operation known as OPERATION OKOA MAISHA.

A statement issued by the East African Court of Justice said that during the operation, residents of Mt. Elgon reportedly lost their lives and were tortured in an attempt to flush out the members of the Saboat Land Defence Force, houses were burnt, women and young girls were raped, innocent residents were arrested and money was extorted from residents for release.

"Court said its judgment on the matter would be delivered on notice," concluded the statement.

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