Court declines to grant ex parte order in an application by a Tanzanian resident

The First Instance Division declined to grant ex parte order (meaning to grant order to one party in the absence of the other parties involved in the matter) to a Tanzania resident seeking for an interim order that the government of Kenya deposit the amount of 28,475,737 Ksh. to EACJ being decretal amount awarded to him in the civil case at the High Court of Kenya as required under Rule 21 (2) of the East African Court of Justice Rules of Procedure.

The Court said that the Applicant failed to convince the Court the urgency of granting the order in the absence of the other parties and the irreparable damages the Applicant would suffer if the order was not granted.

The subject of the main case is that the Applicant (Alfred Koroso) a business man from Moshi, Tanzania, was arrested and placed in custody at Taveta police station; he was charged of robbery with violence and later acquitted after he was found not guilty.

The Applicant after being acquitted he filed a case in Nairobi High Court Kenya for payment of damages for wrongful arrest, confinement and prosecution by the government of Kenya.

The Applicant claims that the amount awarded to him was supposed to be paid within 30 days from the Date of the judgement of the High Court of Kenya on 25th March 2013 which has never been paid up to date.

Karoso (the Applicant) therefore alleges that the refusal and failure and frustration the decree by the government of Kenya to comply with the Court order is an infringement of Article 6 (d) and 7 (2) of the Treaty for the Establishment of the East African Community.

He further alleges that he has continued to suffer and incurring more damages therefore claiming in the main case to be paid additional amount of 5,086,465 Ksh. plus the decretal amount that was awarded to him earlier by the High Court of Kenya.

The Court has therefore declined to grant the ex parte order and ruled that the Applicant serves other parties in the case and the matter be heard and determined inter party (Hearing the case in the presence of all the parties involved in the matter). The Permanent Secretary Ministry of State for provincial Administration and Internal Security is also a party in the case.

Rule 21 (2) provides that; No motion shall be heard without notice to the parties affected by the application. Provided, however, that the First Instance Division, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable injustice, may hear the motion and make any ex parte order upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Division deems just.

Article 6 (d) of the Treaty provides that, good governance including adherence to the principles of democracy, the rule of law, account ability, transparency, social justice, equal opportunities, gender equality, a s well a s the recognition, promotion and protect ion of human and peoples right s in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

Article 7 (2) provides that; The Partner States under take to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.