Kenya has lost its bid to stop a case filed by Somalia over a maritime dispute from going to a full hearing.
Judges at the International Court of Justice on Thursday dismissed the two reasons fronted by Kenya's lawyers that there exists an alternative method of resolving the matter and that the case is invalid because the alternative method had not been exhausted.
In a ruling delivered on Thursday, the court's President Ronny Abraham poked holes into a Memorandum of Understanding signed between Kenya and Somalia, which Nairobi had said constitutes an agreement to use the UN Commission on Law of the Sea instead of the court.
"The question before the court is whether the parties agreed to a method of delimitation (of the area under dispute) other than the court," the 66-year-old French judge told the court.
He declared the MoU was not intended to establish a specific procedure for the settlement of the maritime dispute. The court also rejected Somalia's argument that the MoU was not binding because Parliament had rejected it.
The court found that the MoU signed by Kenya's then Foreign Minister Moses Wetang'ula and Somalia's then Minister of Planning, and the current presidential candidate Abdirahman Abdishakur was a valid bilateral agreement.
The judge said the document did not require parliamentary approval as had been argued by Mogadishu because the two ministers were authorised representatives of their respective governments.
The Kenyan legal team argued that the court lacked jurisdiction since both Kenya and Mogadishu had agreed on an alternative dispute settlement. When Kenya joined the UN, it indicated in 1965 that it would agree to the court's general jurisdiction only as long as there were no alternative methods of resolving disagreements.
"It does not, however, prescribe a method of settlement. Consequently this case does not, by virtue of the MoU, fall out of this court," the judge said, reading a judgement in which four of the 13 judges of the court dissented.
The decision means that Mogadishu has won round one of the dispute and the case will go to a full hearing at a date to be announced by the International Court of Justice.
Attorney General Githu Muigai, who was in court during the hearing, had argued that the case was an unnecessary stumbling block to the fledgling relations between the two countries, especially on security cooperation.
But while Somalia acknowledged Kenya's support in fight against Al Shabaab, Ms Mona Al-Sharmani, Somalia's senior presidential advisor, told the court the very existence of the dispute was an unnecessary divergence that must be resolved.
Somalia sued Kenya in August 2014 saying the boundary should extend diagonally to the south at Kiunga into the sea, and not eastwards as it is today. But that may also affect Kenya's sea border with Tanzania.
The area in contest is about 100,000 square kilometres, forming a triangle east of the Kenya coast.
In 2009, Kenya and Somalia reached an MoU, which was deposited to the UN in 2011. The agreement had stated that the border would run east.