A Review of Application No. 3 of 2019, (Arising from Reference No.9 of 2019) Francis Ngaruko Versus the Attorney General of The Republic of Burundi :In The East African Court of Justice At Arusha, First Instance Division
The EACJ has thus ruled that the respondent is prohibited from implementing the impugned decision or in any way disposing of the applicant’s interest in the subject property, pending the hearing and determination of the application inter parte.
The East African Court of Justice,First Instance Division has in another landmark case, Application No. 3 of 2019, Francis Ngaruko Versus the Attorney General of the Republic of Burundi,granted ex parte conservatory orders barring the government of Burundi from executing the decision of the Republic of Burundi’s Special Court of Land(Second Degree) to dispose of the interest in property land owed to the applicant. This is the second time in its history that the EACJ has granted interim ex parte orders pending the hearing and determination of the inter parte application, the first being in the Wani Santino Jada V The Attorney General and Speaker of the Republic of South Sudan,(Application No.8 of 2017) where the applicant sought ex parte interim orders under certificate of urgency restraining the members of the 4th Assembly of the East African Legislative Assembly (EALA) from convening, administering an oath of office or otherwise recognising the allegedly unlawful nomination of the nominees from the Republic of South Sudan.
The applicant, Mr. Francis Ngaruko, was ably represented by an Advocate of the High Court of Kenya, Mr. Hanningtone Amol of ALP East Africa, who is also the CEO of East Africa Law Society. The Coram comprised a three judge bench; Monica K. Mugenyi, PJ; Audace Ngiye and Charles Nyachae, JJ. The application relied on the proviso to Rule 21(2) of the East African Court of Justice Rules of Procedure which provides for the grant of ex parte orders where the Court is satisfied that the delay caused by proceeding inter partes would or might occasion an irreparable injustice. This rule is reinforced in Rule 73(2) of the Court’s rules which provides that the court may grant an ex parte interim order if satisfied that it is just to do so.The impugned decision of the Republic of Burundi’s Special Court of Land(Second Degree) clearly demonstrated an occasioning of irreparable injustice upon the applicant, where it was established that the special court had delineated one acre on the subject land where the applicant’s residential house sits, but upon execution of such decision the execution agents, in total disregard of the decision sought to encroach on the delineated acre as well as demolish part of the applicant’s residential house.
The EACJ has thus ruled that the respondent is prohibited from implementing the impugned decision or in any way disposing of the applicant’s interest in the subject property, pending the hearing and determination of the application inter parte. The court further ordered that the respondent file an undertaking that no modification or alteration shall be done upon the subject property pending further orders by the court.