What ISAT SURL v Attorney General of Burundi says about reopening a regional judgment

Contents

Why the case matters to businesses

The short history behind the application

The legal question and the Court’s decision

The rule for review under the EAC Treaty

What the parties’ arguments teach commercial counsel

How the ruling fits with earlier decisions

Practical lessons for investors and lawyers

Where the decision leaves Treaty compliance

Why the case matters to businesses

An investor who loses a case may still have a genuine concern that a court overlooked a decisive document or made a plain mistake. But litigation cannot stay open simply because the losing party later finds a new way to describe the evidence. In ISAT SURL v Attorney General of the Republic of Burundi, the East African Court of Justice (EACJ) drew that line in a commercial setting: a review application is an exceptional remedy, and it cannot be used to retry an ownership dispute after the Court has already decided an appeal.

The decision is useful to companies because it explains what a party must show before the EACJ will reopen its own final judgment. It also illustrates the difference between a dispute that has a commercial origin and one that actually asks the Court to decide a Treaty breach. That distinction matters. The 2025 ruling did not re-decide title to Burundian land, award investment compensation, or find a fresh violation of the East African Community (EAC) Treaty. It decided whether the earlier regional judgment could be reopened under the Treaty’s narrow review power.

The official EACJ Appellate Division list labels the matter “Appeal No. 4 of 2023.” The judgment itself describes it as Application No. 4 of 2023, an application to review the Court’s judgment in Appeal No. 4 of 2022. The full neutral citation is ISAT SURL v Attorney General of the Republic of Burundi (Application No. 4 of 2023) [2025] EACJ 6 (Appellate Division, 3 March 2025). Treating the 2025 matter simply as a new appeal would obscure its central procedural lesson.

The short history behind the application

ISAT SURL, a Burundian company, said it had bought a property in Bujumbura in 2004 and obtained title. The transaction and registration later became the subject of civil and criminal proceedings in Burundi. In one criminal case, the accused were acquitted of forgery, while the title was cancelled. A separate civil decision also annulled the transfer and title. ISAT argued that those outcomes conflicted and that Burundi’s Minister of Justice should have ordered a further review under national law.

The dispute reached the EACJ through Reference No. 10 of 2018. In Appeal No. 4 of 2022, the Appellate Division upheld the conclusion that the two Burundian decisions did not contradict each other in a way that established res judicata: both had cancelled the title, although one was criminal and one civil. The EACJ also found no Treaty violation in the Minister’s refusal to reopen the national proceedings. That earlier appeal is reported as ISAT SURL v Attorney General of the Republic of Burundi (Appeal No. 4 of 2022) [2023] EACJ 1.

ISAT then applied to review that 2023 judgment. It relied on documents concerning the original lease and title, and on the fact that Antoine Ntisigana, the person connected to the earlier property interest, had died in 2016. ISAT said the Court had misunderstood who owned the property and that the later material should change the result. The Attorney General opposed the application, arguing that the documents and death were known or could have been discovered with reasonable diligence, and that the application was an attempt to argue the appeal again.

The 2025 application was heard by Vice President Anita Mugeni, Justice Kathurima M’Inoti and Justice Cheborion Barishaki. ISAT was represented by Justin Semuyaba. Burundi was represented by Diomede Vyizigiro and Barankitse Pacifique from the Attorney General’s Office. The published decision contains one ruling signed by all three judges; no separate dissenting judgment is recorded.

The legal question and the Court’s decision

The central question was whether the EACJ should review, interpret, correct, clarify or set aside its 23 February 2023 judgment because of new evidence, an error on the face of the record, or injustice. The Court first clarified that interpretation and review are different remedies. Interpretation explains the meaning or scope of a decision. Review reopens a judgment only on the limited grounds set by the Treaty and the Rules of Procedure.

The Court dismissed the application and ordered ISAT to pay Burundi’s costs. It held that the asserted new material did not meet the requirements for review. The company had not shown that the evidence was both genuinely unavailable despite reasonable diligence and capable of having a decisive effect on the earlier outcome. The Court also found that the arguments about the meaning of “original owner,” the handling of title and the correctness of the earlier reasoning went beyond an error visible from the record. They challenged the merits and belonged, if available, in an appeal rather than a review application.

The alleged discovery of Ntisigana’s death did not change the result. The Court reasoned that ISAT could have learned of the death while the earlier case was still pending, including by following up the material already before it. Even if the fact had been known, ISAT had not shown that it would have changed the Court’s decision. The ruling therefore rejects not every late-discovered fact, but a claim that fails on diligence and decisiveness.

The rule for review under the EAC Treaty

Article 35(3) of the Treaty for the Establishment of the East African Community permits review only on specified grounds. A newly discovered fact must potentially have had a decisive influence on the judgment, must have been unknown to both the Court and the applicant when judgment was delivered, and must not have been discoverable by the applicant through reasonable diligence. The other grounds are mistake, fraud, an error on the face of the record, or injustice. Rule 83 of the EACJ Rules of Procedure 2019 sets out how an application is brought and puts the burden on the applicant to prove the asserted ground. Rule 123 applies that review procedure to the Appellate Division.

The practical rule is demanding but understandable: a party should identify the exact ground, prove it with evidence, explain the search or steps taken before judgment, and show how the alleged fact or error could change the outcome. A document is not “new” merely because it is newly obtained, newly appreciated, or newly made prominent in argument. Nor is a judgment’s reasoning itself new evidence. The Court described review as exceptional because, after judgment, the Court is generally functus officio: it has completed its task and should not reopen the case unless a recognised ground is established.

An error apparent on the face of the record must be evident without an extended re-evaluation of disputed facts or legal arguments. If identifying the error requires the Court to weigh competing interpretations, reconstruct the original dispute, or decide that the earlier judges reached the wrong conclusion on the merits, the application is functioning as an appeal in disguise. Article 35A separately defines appeals from the First Instance Division by reference to points of law, lack of jurisdiction and procedural irregularity. The distinction between the appellate route and review is therefore built into the Treaty’s design.

What the parties’ arguments teach commercial counsel

The Attorney General’s successful position was evidence-focused. Counsel did not rely only on the abstract value of finality. The response connected each claimed discovery to the record: one lease document referred to an earlier contract; the applicant had access to that reference; the death was reflected in correspondence already in the proceedings; and the proposed interpretation of ownership was an argument about the merits, not an independent new fact. Counsel also relied on Independent Medico Legal Unit v Attorney General of the Republic of Kenya, an earlier EACJ review decision distinguishing review from appeal. That way of answering a review application is instructive: test each item against knowledge, diligence, materiality and the face of the record.

For ISAT, the difficulty was not simply that it lost again. The application brought the Court back to the ownership dispute and asked it to reach a different interpretation of the same history. The judges considered the alleged evidence separately and found that the company had not shown adequate diligence or decisive impact. In practical terms, a stronger review record would have needed to explain when each item was found, who searched for it, why the document could not reasonably have been obtained earlier, and precisely which finding it would probably have changed. If the real complaint is that the earlier court drew the wrong legal conclusion, counsel must identify an available appeal route and its deadline rather than relabel the merits challenge as review.

This is not a criticism of either legal team beyond the reasoning in the public judgment. It is a lesson in matching the remedy to the complaint. In business disputes, a good commercial narrative cannot substitute for the procedural ingredients of a Treaty claim or review application. Counsel should preserve the national record, plead the alleged Treaty obligation and state action with precision, and distinguish a domestic title dispute from a regional-law violation. The earlier ISAT appeal itself stressed that matters not properly put in issue below cannot simply be introduced at the appellate stage.

How the ruling fits with earlier decisions

The 2025 ruling follows the EACJ’s earlier approach in Independent Medico Legal Unit v Attorney General of Kenya, Application No. 2 of 2012 arising from Appeal No. 1 of 2011. There the Court treated review as a limited corrective power, not a second appeal. ISAT applies that principle to a company’s land-related commercial dispute and makes the diligence requirement concrete: the Court asks what the applicant knew, what the record signalled, what reasonable inquiry could have uncovered and whether the evidence could alter the outcome.

The judgment also draws on Attorney General of Kenya v Professor Anyang’ Nyong’o and others, Appeal No. 4 of 2009, on the Court’s ability to exercise review jurisdiction in an appropriate case, and on East African authorities such as Lakhamshi Bros Ltd v Raja & Sons [1966] EA 313 and Bancroft and another v City Council of Nairobi [1971] 1 EA 151. These earlier decisions support a narrow route to correction while protecting finality. The earlier 2023 ISAT appeal supplies the immediate factual context; the 2025 ruling does not replace its substantive findings.

The 2025 ruling applies a settled EACJ principle: finality is the starting point, and reopening is exceptional. Its value lies in the way the Court tests diligence and materiality against the record before it. Under Article 33(2) of the Treaty, EACJ decisions on Treaty interpretation and application take precedence over national court decisions on a similar matter. Article 38(3) requires a Partner State or the Council to take measures without delay to implement an EACJ judgment. Those provisions make regional decisions consequential, but they do not turn every national commercial disagreement into an EACJ Treaty dispute.

Practical lessons for investors and lawyers

First, build the record before judgment. Preserve contracts, title documents, correspondence, registry searches and evidence of when each item became available. If a document points to an earlier contract, obtain that earlier contract promptly. If a party or witness dies, put reliable proof before the court while the case is live. ISAT shows that a late affidavit asserting discovery may not overcome facts in the existing record that called for earlier inquiry.

Second, prove materiality, not just novelty. Explain the step in the court’s reasoning that would change if the new fact were accepted. A fact may be new in a chronological sense and still not be decisive. Third, separate remedies: seek interpretation when the order’s meaning is unclear; seek correction for an appropriate clerical or obvious error; appeal a contested legal conclusion when an appeal is available; and reserve review for Article 35(3)’s exceptional grounds. Asking for every form of relief in one application does not remove the need to meet each legal test.

Fourth, plead the Treaty connection with care. The original litigation invoked provisions including Articles 6(d), 7(2), 8(4), 27 and 30 of the EAC Treaty, Article 15 of the EAC Common Market Protocol, and Article 14 of the African Charter on Human and Peoples’ Rights. Those provisions framed the earlier complaint about state conduct. In the 2025 review, however, the decisive question was procedural: whether the EACJ’s own judgment could be reopened under Article 35(3). A commercial or investment origin alone does not establish a Treaty breach. The claimant must show the relevant state act or omission and connect it to a specific Treaty obligation within the Court’s jurisdiction.

Finally, keep regional and domestic procedure distinct. Burundi’s domestic proceedings determined the title and the Minister’s response under Burundian law; the EACJ considered whether the challenged state conduct complied with the EAC Treaty and then whether its own judgment qualified for review. Kenya and Uganda also have domestic review procedures, but the governing rules and available appeals must be checked in the relevant national court. A national review application is not an EACJ review, and an EACJ review application is not a fresh land appeal.

Where the decision leaves Treaty compliance

ISAT is best read as a procedural authority with commercial relevance, not as a broad investment-protection award. It is binding as an Appellate Division ruling on the parties and provides a clear working standard for future review applications: show the qualifying ground, demonstrate diligence, establish likely decisiveness, and do not use review to relitigate the merits. For counsel acting for a business, it is a warning that an otherwise serious commercial grievance may be lost if the evidential trail and procedural route are not handled at the right time.

The ruling also leaves an important boundary intact. National courts and authorities remain responsible for ordinary property and commercial law, while the EACJ supervises compliance with the regional Treaty within its jurisdiction. The Treaty does not give the EACJ a general appellate role over every national judgment. Its role becomes relevant when a properly pleaded state act is said to breach an EAC obligation. Once the EACJ has decided that question, Article 35(3) protects the finality of its judgment while preserving a narrow corrective remedy for genuinely decisive new facts, clear error, fraud or injustice.

Sources mentioned in this article

The East African Community Treaty, especially Articles 27, 33, 35, 35A and 38; the East African Court of Justice Rules of Procedure 2019, especially Rules 83, 123 and 127; the East African Community Common Market Protocol, Article 15; and the African Charter on Human and Peoples’ Rights, Article 14. ISAT SURL v Attorney General of the Republic of Burundi (Application No. 4 of 2023) [2025] EACJ 6 (Appellate Division, 3 March 2025); ISAT SURL v Attorney General of the Republic of Burundi (Appeal No. 4 of 2022) [2023] EACJ 1; Independent Medico Legal Unit v Attorney General of the Republic of Kenya, Application No. 2 of 2012 arising from Appeal No. 1 of 2011; Attorney General of Kenya v Professor Anyang’ Nyong’o and others, Appeal No. 4 of 2009; Lakhamshi Bros Ltd v Raja & Sons [1966] EA 313; Bancroft and another v City Council of Nairobi [1971] 1 EA 151; Margaret Zziwa v Secretary General of the East African Community, Appeal No. 2 of 2017.

Suggested citation

Ronald Serwanga, “Burundi Business Disputes: EACJ Review and Finality” East Africa Legal Insight (7 October 2026).