This is an application by the Attorney
General of Kenya (hereinafter referredto as the Applicant) brought by Notice
of Motion under Rule 4 of the Rulesof this Court for orders that:
1)This matter be certified urgent and be heard on priority basis.
2)The time for serving the Memorandum of Appeal and the Record ofAppeal be
extended to enable the applicants serve the Memorandum ofAppeal and Record
of Appeal out of time.
3)In the alternative, the Memorandum of Appeal and the Record of Appealfiled
and served on the Respondents on the 13th of January 2010 bedeemed as dully
 The grounds of the application are that:
a)The delay in serving the Memorandum of Appeal and Record of Appealwas
occasioned by hardship due to Christmas Vacation.
b)The delay in serving the Memorandum of Appeal and the Record ofAppeal was
due to the fact that the counsel conducting the matter for theApplicant did
not receive information that the documents had beenexecuted by the Registrar
until the 6th of January 2010, two days after theexpiry of the period for
 The application is supported by two affidavits sworn by Mr. Anthony
Oteng’oOmbwayo , Senior Principal Litigation Counsel , on the 12th January
and the 19TH February 2010 respectively.
 Ms Judith Sijeny, one of the Respondents’ counsels swore an affidavit in
reply on behalf of the Respondents on the 4th February 2010 opposing the
application. On the same date, Counsel for the Respondents also filed and
served a notice of objection notifying the Applicant of his intention to
raise the following objections during the hearing of the application:
“1.That the appellant ought to have filed his applicationbefore the Court of
Appellate Division and not beforethe Court of First Instance Division.
2.The appellant’s motion lacks merit and must fail withcosts to the
 On record is another affidavit sworn by one Boniface NamuluOgoti, a
Clerk of this court, on the 2nd February, 2010, on the instruction of the
 The background to the application is rarther long and checkered. It
began with Reference No. 1 of 2006 ,Proffessor Peter Anyang Nyongo And
Others vs The Attorney General of Kenya And Others. This Court decided that
Reference in favour of Professor Anyang NyongoAnd Others and ordered the
Attorney General to pay them inter alia, the taxed costs of the Reference.
 Consequently, Professor Anyang NyongoAnd Others filed their bill of
costs before the Registar vide Taxation Cause No. 6 of 2008. The Registrar
taxed it and allowed $ 2, 033,164.99 in his Ruling delivered on the
 The Attorney General was dissatisfied with the learned Registrar’s
decision and wished to challenge it under Rule 114 which provides that:
“Any person who is dissatisfied with a decision of the taxingofficer may
within 14 days apply for any matter to be referredto a single judge of the
Court whose decision shall be final”.
 By the time the Attorney General took the decision to refer the matter
before a single judge of the Court under the provisions of Rule 114 above,
however, the 14 days period had long elapsed.
 Consequently, on the 3rd April 2009, the Attorney General filed
Application No. 4 of 2009, between the same parties, under Rule 4 of the
Rules of Court for extension of time to file the said reference.
 That application was heard by Hon. Justice Busingye the Principal Judge
of the Court and a judge of the First Instance Division who delivered his
Ruling on the 16th October 2009, dismissing the application, again with
costs to Professor Anyang’ Nyongo And Others.
 The Attorney General was once again dissatisfied with that Ruling and
on the 29th October 2009, a Notice of Appeal was lodged on his behalf under
Rule 78(2) in the Court’s Registry indicating his intention to appeal
against the said decision. The Notice of Appeal was lodged within the 14
days prescribed by Rule 78(2) for lodging a Notice of Appeal.
 On the 28th December 2009, Counsel for the Attorney General lodged in
this Court’s Registry in the Appellate Division a Memorandum of Appeal and a
Record of Appeal. These documents were also lodged within the 60 days
prescribed by Rule 86.The appeal was registered in the Appellate Division as
Civil Appeal No. 1 of 2009.
 The problem arose in service of the said documents on the Respondents.
 Rule 90 (1) provides that:
“(1) The appellant shall, before or within seven days afterlodging the
memorandum of appeal and the record ofappeal in the appropriate registry,
serve copies of them oneach respondent who has complied with the
requirementsof Rule 80.”
 Rule 80 requires every person on whom a notice of appeal has been
served, to lodge in the appropriate registry and serve on the intended
appellant, a full address for purposes of service within fourteen days after
service of the notice of appeal. This is not in issue.
 It is also not disputed that the Applicant’s Counsel did not serve the
memorandum and record of appeal on the Respondents within the seven days
prescribed under Rule 90(1). According to learned counsel for the Applicant,
Mr. Ombwayo, the documents were not served on the Respondents until 13th
January 2010. By then, the seven days prescribed by Rule 90(1) had long
 MrOmbwayo apparently realized this irregularity, and has filed the
instant application in a bid to rectify it by the orders sought herein.At
the hearing of the application before me on the 17th February 2010, Mr. T.
J. Kajwang, learned Counsel for the Respondents raised two issues for
determination by court, namely:
1) Whether the First Instance Division has the jurisdiction todetermine this
2) Whether the applicant has met the conditions for extension of time.
 Submissions followed the same order.
 Issue No. 1:Whether the First Instance Division has the jurisdiction to
determine this application.
 Mr. Kajwang contended that:
The Applicant should have filed the instant application in the
AppellateDivision and not in the First Instance Division. The confusion
seems to havearisen from Rule 83 which is entitled “Application to First
Division first”,but Rule 83 borrows from Rule 82 because Rule 82 talks about“Applications
for leave to appeal”, and Rule 84 gives the form of applicationto the Court.
 Rule 83 does not apply to applications for extension of time under
Rule4.The Rules are compartmentalized into different sections dealing with
eachof the two Divisions of the Court. Rule 83 is in Part C which deals
withProceedings before the Appellate Division. It exists because there
areinstances in which there are applications which can be made to the
FirstInstance Division because an appeal has not been instituted or filed.
Oncethat is done, then there is a proper appeal before the Appellate
Divisionwhich is the Court which has the jurisdiction and direct control
over theappeal in both procedural and substantive law.
 Rule 83 is titled “Applications to First Instance Division First.
Wheneverapplication may be made either to the Appellate Division or to the
FirstInstance Division, it shall in the first instance be made to the First
InstanceDivision”.Rule 82, the rule immediately before this Rule is titled
“Application for leave to appeal”. Rule 82(2) says “Where an appeal lieswith
the leave of the Appellate Division, application for leave shall bemade in
the manner prescribed in rules 83 and 84 within fourteen days ofthe decision
against which it is desired to appeal or, where an applicationfor leave has
been made to the First Instance Division and refused, withinfourteen days of
that refusal.” (Underlining is for emphasis)
 Rule 84 gives the form of application to the Court, which is by Notice
ofMotion.It is appears to be clear that Rule Rule 83 borrows from Rule 82
becauseRule 82 talks of “Applications for leave to appeal”, and it says that
wherethere is that application, then Rules 83 an 84 come into play, and it
makessense because where an applicant wishes to appeal with the leave of
court,that application may be made to both the divisions. Rule 83 explains
clearlythat because it can be made to both divisions, it should be made
first to thecourt of First Instance Division. That is the only sense in
which Rule 83exists in this procedure. It does not apply to applications
under Rule 4 or toany other applications other than applications under Rule
 If an applicant served or filed a Notice of appeal out of time, and
were tocome to court for extension of time, it is probable that he could
approach theCourt of First Instance Division as a result of Rule 83 because
an appeal hasnot yet been filed or instituted. But when you consider Rule 86
which is“Institution of appeals”, sub-section 1 says:
(1) Subject to the provisions of Rule 118, an appeal shall beinstituted by
lodging in the appropriate registry, within sixty days ofthe date when the
notice of appeal was lodged—“
(a) a memorandum of appeal, in quintuplicate;
(b) the record of appeal, in quintuplicate;
(c) the prescribed fee; and
(d) security for the cost of appeal.”
 Once this is done, then there is a proper appeal before the Appellate
Courtwhich is under the direct jurisdiction and control both in matters
ofsubstantive law and procedural law before the Appellate Court. AnApplicant
would not therefore confuse both courts there. Where an appealhas been
properly filed, then he cannot come to the court of First Instance
todetermine procedural issues regarding an appeal which is substantively
 Once the Attorney General did what he did under Rule 86, there was an
appeal properly filed within time, and having done that, he evoked the
jurisdiction of the Appellate Court Division and the Appellate Division
therefore exercises a competent jurisdiction both on substantive law and on
 Rule 83 is not one of those Rules which deal with the First Instance
Court, unless the applicant is coming to court for leave to appeal, or leave
for extension of Notice of appeal before filing or instituting an appeal.
Once an appeal has been instituted, the Court of First Instance is functus
officio in respect of those issues and the Appellate Court takes over the
jurisdiction to determine both the procedural issues and substantive issues.
If Rule 83 were to be construed otherwise, it would conflict with Article 23
of the Treaty because after the amendments, Article 23 has created the two
Divisions and in paragraph 3 it says that the First Instance Division shall
have jurisdiction to hear and determine at the first instance, subject to a
right of appeal to the Appellate Division under Article 35 (A), any matter
before the Court in accordance with the Treaty. So there is a right of
appeal and that right of appeal is exercised when an applicant has evoked
Rule 86, and once there is an appeal properly instituted, it would conflict
with the jurisdiction allocated by Article 23of the Appellate Division. It
says “An appeal from the judgment or any order of the First Instance
Division of the Court shall lie to the appellate division on points of law ,
grounds of jurisdiction, or procedural irregularity”.
 The decision that the applicant seeks to appeal from is from the
Principal Judge and is on grounds of procedural irregularity. This
application also touches on procedural irregularity. If one construed Rule
83 in a way that would allow the First Instant Division to exercise
jurisdiction, it would conflict with Articles 23 and 35 (A) of the Treaty.
 The only jurisdiction left for the Court of First Instance is found in
Rule 59 (3), since the applicant is dissatisfied with the decision of a
single judge of the First Instance Division in an application for extension
of time. The matter would now have to be placed before a full bench of three
judges of the First Instance Division, and not by an appeal to the Appellate
 The application is misconceived in that Mr. Ombwayo filed it in the
First Instance Division. He should have filed it in the Appellate Division
under Rule 4 and the Appellate Division would exercise a competent
jurisdiction to extend time. The rules of court need to be properly adhered
to and need to be properly exhausted for the applicant to get the remedy he
seeks from the Court. The application ought to fail even for this reason
 MrOmbwayo’s response is that:
He filed the application in the proper Division of the Court. What is
beforecourt is an application within the appeal that was filed on 28th
December2009. The appeal was filed in the Appellate Division. Rule 4
provides thatthe court may for sufficient reason extend the time limited by
the rules or byany decision of the court for doing any act authorized or
required by theserules, so any Division of the Court has the jurisdiction to
extend time. Onemight file an appeal in the Appellate Division, but request
the First InstanceDivision to extend time within which to file the
appeal.Rule 4 provides that you can file the application either in the First
InstanceDivision or the Appellate Division, but under Rule 83, if you can
file theapplication in both Divisions, then you should file the application
in the FirstInstance Division first. This Court still has jurisdiction to
entertain theapplication. Rules 4 and 83 ought to be read with the
interpretation sectionRule 2, where “Court” is defined as “the East African
Court of Justiceestablished under the Treaty and includes any division of
that Court and asingle judge exercising any power vested in that Judge
 There is only one Court with two divisions under the Treaty, not two.
So, whatever decision comes from the First Instance Division or the
Appellate Division, those are decisions of the Court. Rule 83 provide that
you first make your application to the First Instance Division. Therefore,
Rule 83 should be read with Rule 4. Since Rule 4 provides that you can file
the application in either Division of the Court, it means that you can file
the application in either Division of the Court, but you commence your
application in the First Instance Division.
 Rule 59 is discretionary, one can choose to go by Rule 59 by filing a
reference to full bench, but that does not take away the right of appeal
under Rule 77. Under Rule 77, the applicant has two options, to refer the
matter to a full bench or to appeal. The applicant has opted to appeal
because under Rule 77, one can appeal on points of law against the decision
of a single Judge. Both rights are concurrent. You can refer the matter to a
single Judge, a full bench or institute an appeal.
 The fact that Part C deals with appeals does not pre-empt the
application of Rule 4 because if you look at Part C section 18 which deals
with the proceedings in the Appellate Division, there is no distinct
provision for extension of time in the Appellate Division. The provisions
for extension of time is in section 1 Part A which is under the General
section and that part is applicable to all parts. Rule 4 is within this
general section. Therefore, under Rule 4, each division can extend time.
 Mr. Ombwayo compared the Rule to the provisions in the rules of Kenya,
where the Court of Appeal can grant leave to appeal and also the High Court
can grant you the same leave. He argued that he is not asking for any action
to be done in the Appellate Division, he is only asking to serve a record of
appeal, which is a step provided for by law. The objection should be
 After careful consideration of the submissions by both learned counsel,
and perusal of the Rules, this is my finding and decision:
 This issue basically revolves around the interpretation of Rules 4 and
83 of the rules of this Court. The Vienna Convention On The Law Of Treaties
sets out international rules of interpretation of treaties. Article 31(1)
LA treaty shall be interpreted in good faith in accordancewith the ordinary
meaning to be given to the terms of thetreaty in their full context and in
light of its object andpurpose.”
 Article 32 provides that where, in interpreting a treaty, the
application ofArticle 31 leaves the meaning ambiguous or obscure or leads to
a resultwhich is manifestly absurd or unreasonable, recourse would be had
tosupplementary means of interpretation including the preparatory work of
thetreaty and the circumstances of its conclusion.
 This rule of interpretation has been adopted by this Court over the
years in anumber of references including for instance, Ref. No. 3 of 2007,
The EastAfrican Law Society And Others versus The Attorney General of
KenyaAnd Others at pages 23 to 24.These rules are applicable to the East
AfricanCourt Of Justice Rules of Procedure,2008, by virtue of the fact that
the saidRules are made by the Court in exercise of the powers conferred on
theCourt by Article 4 of the Treaty for the Establishment of the East
AfricanCommunity. It is therefore part and parcel of the Treaty.
 It is common knowledge that initialy, the Court was one, but the Treaty
wasamended and two Divisions were created under Article 23, namely, theFirst
Instance Division and the Appellate Division. Consequently, the Ruleswere
revised by the Court in 2008 to conform to the Treaty
amendmentsrestructuring the Court. The rules are indeed divided or
compartmentalizedinto four Parts namely, A, B, C and D, entitled “General
Provisions”,“Institution of Proceedings In First Instance Division,”
“Proceedings InThe Appellate Division,” and “Miscellaneous Provisions,”
 Part A has sections I to V entitled “General,” “Registrar and Registry”,“Documents”,
“Appearance”, “Court Vacation and Holidays”,respectively. Rule 4 is found
section I of Part A entitled “ General”. Rule 4provides that:
“A Division of the Court may for sufficient reason extend thetime limited by
these Rules or by a decision of the Court forthe doing of any act authorized
or required by these Rules,whether before or after the expiration of such
time andwhether before or after the doing of the act, and any referencein
these Rules to any such time shall be construed as areference to such time
 From the definition of “Court” under Rule 2 that is “…..the East
AfricanCourt of Justice established under the Treaty and includes any
division ofthat Court and a single Judge exercising any power vested in that
Judgesitting alone”, it would appear on the face of it that under Rule 4,
extensioncan be granted by either division of the Court and applications can
thereforebe made in either division as submitted by Mr. Ombwayo.
 Taking into account the general principles of interpretation enunciated
inArticle 31 of the Vienna Convention, however, it is my view that Rule
4must be interpreted not only in accordance with its ordinary meaning,
butalso in its context and in light of its objective and purpose. Primarily,
one has to take into account the objective of the Treaty and of the Rules as
 It is gainsaid that the primary objective and purpose of the Rules like
any other Rules of procedure, is to regulate and to ensure the orderly
conduct of proceedings before the Court as established by the Treaty. The
object and purpose of the Amended Rules is to “revise the rules of procedure
to conform to the Treaty amendments restructuring the Court”.
 Article 23 (2) and (3) of the Treaty reads:
“2. The Court shall consist of a First Instance Division and anAppellate
3. The First Instance Division shall have jurisdiction to hear and determine,
at first instance,
subject to a right of appeal to the Appellate Division under Article 35A,
any matter before the
Court in accordance with this Treaty.”
 Article 35 A provides that:
“An appeal from the judgment or order of the First Instance
Division of the Court shall lie to the Appellate Division on-
(a) points of law
(b) grounds of lack of jurisdiction; or
(c) procedural irregularity”.
 The interpretation by Mr. Ombwayo is that since Rule 4 provides that
you can file the application for extension of time either in the First
Instance Division or the Appellate Division, then Rule 83 comes into play
because it provides that you begin with the First Instance First.
 With much due respect to Mr. Ombwayo, if this interpretation were to be
accepted, it would lead to a result that is manifestly absurd and
unreasonable and which is likely to lead to total confusion and uncertainty
in the conduct of proceedings before the Court in that even after an appeal
has been lodged and is lying before the Appellate Division as in the instant
case, a single judge of the First Instance Division can extend time in the
Appellate Division. This could not have been the object and purpose of Rule
4 let alone 83.
 Further, and of equal importance is the fact that the decision the
Applicant seeks to appeal from is of a single judge of the First Instance
Division. As stated before, the appeal is lying before the Appellate
Division. If Rules 4 and 83 were construed according to Mr. Ombwayo’s
interpretation, it will also conflict with the clear provisions of Articles
23 and 35A of the Treaty which created the two distinct and separate
divisions of the Court and spelled out their jurisdictions. According to the
two Articles the First Instance Division shall have the jurisdiction to hear
and determine at first instance, subject to a right of appeal to the
Appellate Division, any matter before the Court in accordance with the
Treaty. Therefore, there is a right of appeal, and that right of appeal is
exercised when an applicant evokes the provisions of Rule 86 by lodging a
memorandum and record of appeal in the Appellate Division and the appeal is
registered and given a number, as in the instant case. The First Instance
Division does not have the jurisdiction after this stage in the proceedings
to entertain any application for extension of time because the matter is
then squarely within the jurisdiction of the Appellate Division.
 In any case, applications for extension of time in the First Instance
Division are specifically catered for in Rule 59(2) (a) which provides that
a single judge of the division can extend time as stated therein at the
trial stage. The confusion by Counsel Ombwayo should not have therefore
arisen in the first place in light of this provision.
 Regarding Rule 83, that Rule is entitled “Applications to First
Instance Division First”. It is found in Part C of the Rules entitled
“Proceedings In The Appellate Division”. This part contains Rules dealing
with the Appellate Division. Rule 83 provides that:
“Whenever an application can be made either to theAppeallate Division or to
the First Instance Division it shallfirst be made to the First Instance
 Rule 83 is allied to Rule 82, especially Rule 82(2). They concern
applications for leave to appeal to the Appellate Division. This is obvious
from the provisions of Rule 84 (2) which prescribes the form of application
“(2)A Notice of Motion shall be substantially in the Form A inthe Sixth
Schedule to these Rules and shall be signed by oron behalf of the applicant.”
 Form A in the Sixth schedule shows that the application is to be made
in theAppellate Division.
 It therefore very clear that this Rule applies to proceedings in the
AppellateDivision only. It must, however, be read together with the
preceding Rulesin Part C including Rule 82 which makes provision for
applications for leaveto appeal.
 It is also clear that all the applications provided for under Rule 83
are in partC and are supposed to be made before the institution of the
appeal.Applications that can be entertained by the First Instance Divisions
thereunder are mainly applications for leave to file an appeal, extension of
time tofile or to serve a notice of appeal, not applications for extension
of time toserve a memorandum and record of appeal. Once the appeal has been
lodgedin the Appellate Division under Rule 86, the matter ceases to be
within thejurisdiction of the First Instance Division. Any applications
thereafteremanating from the instituted appeal becomes a matter for the
jurisdiction ofthe Appellate Division. The First Instance Division ceases to
havejurisdiction over them.
 According to the Notice of motion, the Applicant lodged his appeal in
theAppellate Division on the 28th December 2009.Mr. Ombwayo has alsoalluded
to the said appeal in his submissions. All the Applicant now seeks isan
extension of time to serve the appeal on the Respondents.
 Although Rule 4 makes provision for such applications, it is my opinion
that the time can only be extended by the Appellate Division where the
appeal is lying, and not the First Instance Division.
 For these reasons, I find merit in Mr. Kajwang’s objection and I hold
that neither a single judge of the First Instance Division nor the First
Instance Division has the jurisdiction to entertain an application of this
nature. The answer to this issue also determines the outcome of the entire
application since a decision made without jurisdiction is in law a nullity.
I therefore need not go into the second issue, which I believe is the
preserve of the Appellate Division to which the Applicant should direct his
 The application is accordingly struck out with costs to the Respondents.
Dated and delivered at Arusha this ……… day of ………………….2010