The East African Court of Justice let Kenya’s appeal proceed despite a late and imperfect amended record. The ruling explains when a procedural defect warrants striking out an appeal, and when the court should decide the underlying regional dispute.

Contents

Why this application matters

The short background

The legal question

What the Court held

The rule of law

Why the decision matters for EAC governance

What advocates can learn

Earlier decisions and the absence of a dissent

Practical conclusion

Why this application matters

An appeal can turn on the dispute between the parties, but it can also stop before that dispute is heard. In Christopher Ayieko and Emily Osiemo v Attorney General of the Republic of Kenya and Secretary General of the East African Community, Application No. 1 of 2024 (arising from Appeal No. 1 of 2023), [2025] EACJ 5, ruling of 3 March 2025, the East African Court of Justice’s Appellate Division considered whether a late and allegedly irregular amended record of appeal should end the appeal before the Court reached its legal questions. The Court said no. It dismissed the strike-out application, ordered each side to bear its own costs, and directed that the appeal proceed to a scheduling conference.

That result is useful to advocates and ordinary court users because it shows the difference between identifying a procedural breach and proving that the breach makes an appeal incurably defective. The ruling does not excuse missed deadlines as a general practice. It shows that the Court will examine the reason for delay, the nature of the defect, its effect on the opposing party and the importance of deciding the issues that properly came before it.

The short background

The application grew out of the EACJ’s earlier decision in Christopher Ayieko and Emily Osiemo v Attorney General of the Republic of Kenya and Secretary General of the East African Community, Reference No. 5 of 2019, [2022] EACJ 38, decided on 2 December 2022. That dispute concerned Kenya’s negotiations with the United States on a proposed free trade agreement and a wheat certification arrangement. The applicants argued that Kenya had acted without the coordination and notification required by EAC law, and that the Secretary General had failed to perform regional coordination duties. The First Instance Division found Treaty breaches. Kenya appealed in Appeal No. 1 of 2023.

While that appeal was pending, Ayieko and Osiemo asked the Appellate Division to strike out the amended record of appeal filed by Kenya’s Attorney General. They argued that the amended record had been lodged 45 days after the period fixed by the Court, that the amendments went beyond the permission granted to add the Secretary General as a party, and that the changes were not marked in the required way. The Attorney General relied on resource and financial constraints to explain the delay and maintained that the alleged defects did not justify terminating the appeal. The application was made under Rules 91, 94 and 95 of the East African Court of Justice Rules of Procedure, 2019.

The application was heard by President Nestor Kayobera, Vice President Anita Mugeni, and Justices Kathurima M’Inoti, Cheborion Barishaki and Omar O. Makungu. The ruling was delivered at Kigali on 3 March 2025. The Appellate Division, rather than a national court, was deciding how its own appeal procedure should apply.

The legal question

The central issue was whether the Court should strike out the whole amended record of appeal, and thereby prevent Appeal No. 1 of 2023 from going forward, because it was late and allegedly exceeded the permitted amendments. The Court also had to decide who should pay the costs of the application. A related point concerned the affidavit filed for Kenya: the applicants challenged the use of an affidavit sworn by counsel on record.

This was a procedural application, not a rehearing of the free trade agreement dispute. The judges were not deciding whether Kenya’s negotiations complied with the EAC Treaty or whether the Secretary General had failed in a regional duty. Those questions remained for the appeal. Keeping that boundary clear is essential when describing what this case decided.

What the Court held

The Appellate Division declined to strike out the amended record. It accepted that Kenya had filed late, but found that the Attorney General had given sufficient reasons for missing the prescribed period. It also rejected the objection to the affidavit sworn by counsel, treating it as competent in the circumstances presented. The Court was not persuaded that the defects required the drastic result of ending the appeal before its merits could be examined. It ordered that each party bear its own costs and that Appeal No. 1 of 2023 be listed for a scheduling conference in the next session.

The decision was delivered as a joint ruling of the five-member bench. The published ruling contains no separate dissenting judgment. The Court’s words therefore express the decision of the Appellate Division as a whole, rather than a majority view opposed by another judge.

The rule of law

The principle is that a procedural default in an EACJ appeal does not automatically require the entire appeal to be struck out. Where the Rules permit the Court to consider a strike-out application, the Court must assess the explanation for the default, the seriousness and curability of the defect, any demonstrated prejudice, and the consequences of preventing a properly arguable dispute from being heard. If the explanation and circumstances justify it, the Court may refuse to strike out the record and allow the appeal to continue.

That principle has limits. It does not erase the time periods in the 2019 Rules or give litigants a right to disregard directions. A party seeking relief should explain the delay with evidence and address the precise procedural problem. Equally, a party asking the Court to strike out an appeal should show why the defect is material, why a lesser correction would not work, and what practical unfairness the defect has caused. The Court’s decision is a fact-sensitive exercise of procedural discretion, not a blanket extension of time.

Why the decision matters for EAC governance

Procedure matters here because the appeal arises from a dispute about how Partner States and EAC institutions conduct external trade relations. The underlying case concerned the Treaty’s integration principles and provisions of the Customs Union Protocol, including Article 37 on trade relations with third parties. It also raised the Secretary General’s coordinating function. Whether the merits judgment was correct was not resolved in this application. But by allowing the appeal to proceed, the Court preserved the opportunity for the Appellate Division to examine those questions through its ordinary appellate process.

The ruling therefore has a modest but real governance value. It keeps procedural control in the hands of the regional Court, while avoiding a result that could have left important Treaty questions unreviewed because of a correctable record problem. It also illustrates that the Secretary General’s role in a dispute does not convert a procedural appeal application into a general ruling on EAC institutional powers. The parties and the Court must keep the procedural question distinct from the substantive Treaty issues.

What advocates can learn

For a party seeking to strike out an appeal, pointing to a missed deadline or an unmarked amendment is only the beginning. Counsel should connect the irregularity to a legal consequence under the applicable Rules, identify whether it can be cured, and explain concrete prejudice. A request to remove the entire record is severe. If a correction, costs order or direction can protect fairness, the Court may consider that response proportionate. The applicants raised specific defects, but the Court was not persuaded that those defects justified ending the whole appeal. That is a lesson about the remedy sought, not a finding that their lawyers acted improperly.

For the party defending a late record, a general statement that resources were limited may carry little weight on its own. The safer approach is a dated account supported by the record: when the deadline was known, what prevented compliance, when the problem was addressed, what exactly was amended, and why the other side suffered no unfair disadvantage. Kenya succeeded in resisting strike-out because the Court found sufficient reasons in the circumstances. That outcome should not be treated as assurance that another late filing will be excused.

The ruling’s treatment of counsel’s affidavit also gives a practical warning. Counsel may be able to depose to procedural steps within personal knowledge, such as filing history or communications in the litigation. That does not mean counsel should swear to contested facts that belong to a client or witness. Advocates should identify the source of each factual statement and choose a deponent who can properly prove it.

Earlier decisions and the absence of a dissent

The Appellate Division considered the Attorney General of the Republic of Burundi v Secretary General of the East African Community and another, Appeal No. 2 of 2019, as a prior procedural authority. It distinguished that case rather than treating it as a rule that every procedural defect requires an appeal to be struck out. The point is important: precedent supplies a framework, but an application still turns on the nature of the default and the explanation proved in the particular record.

A national comparison helps define the limits of the ruling. Article 159(2)(d) of Kenya’s Constitution directs Kenyan courts to administer justice without undue regard to procedural technicalities. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others, [2014] eKLR, the Supreme Court of Kenya explained that extension of time is a discretionary remedy requiring a proper explanation and attention to the circumstances of the delay. The shared concern with reasoned judicial discretion is useful, but the Kenyan Constitution and Kenyan appellate rules did not govern this EACJ application. Its controlling procedural framework was the EACJ’s own 2019 Rules.

The ruling’s value for post-appeal practice should be stated carefully. It does not grant relief after a concluded appeal or settle the substantive EAC governance dispute. Its usefulness lies in applications brought during an appeal, especially applications to amend or strike an appeal record and decide whether a procedural fault should terminate appellate review. Any later decision in Appeal No. 1 of 2023 must be cited separately for the merits of the governance dispute.

Practical conclusion

Ayieko and Osiemo v Attorney General of Kenya is best read as a careful procedural decision. Deadlines and record requirements matter, but striking out an entire appeal is not automatic whenever one is breached. The Court examines the reason for default, the nature of the irregularity and whether a fair, proportionate remedy can keep the case on course. For litigants, the practical lesson is simple: meet the timetable, keep an accurate record of every amendment and, if something goes wrong, explain it promptly and with evidence. A party seeking strike-out should show why the defect makes a fair hearing impossible or why a narrower remedy will not do.

Sources mentioned in this case analysis

Authorities discussed in this article are the Treaty for the Establishment of the East African Community, 1999, including Articles 30, 33 and 35A; the East African Court of Justice Rules of Procedure, 2019, particularly Rules 91, 94, 95 and 127; the Protocol on the Establishment of the East African Customs Union, including Article 37; Christopher Ayieko and Emily Osiemo v Attorney General of the Republic of Kenya and Secretary General of the East African Community, Reference No. 5 of 2019, [2022] EACJ 38; Attorney General of the Republic of Burundi v Secretary General of the East African Community and another, Appeal No. 2 of 2019; and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others, [2014] eKLR. The case analysed is Christopher Ayieko and Emily Osiemo v Attorney General of the Republic of Kenya and Secretary General of the East African Community, Application No. 1 of 2024 (arising from Appeal No. 1 of 2023), [2025] EACJ 5 (Appellate Division), delivered 3 March 2025.

Suggested citation

Ronald Serwanga, “EACJ Appeal Procedure: Ayieko v Kenya Case Analysis” East Africa Legal Insight (6 October 2026).