Torture Claims and EACJ Limitation Periods in Kenya

Ronald Serwanga Saturday, October 10, 2026
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Independent Medical Legal Unit v Attorney General of Kenya is often remembered for its argument that a state’s failure to investigate torture can continue after the violence ends. That argument persuaded the EACJ’s First Instance Division in June 2011, but the Appellate Division reversed the ruling in March 2012. The controlling lesson is therefore a warning: serious human-rights allegations do not suspend Article 30(2)’s two-month filing period. The case remains valuable because it shows both how a Treaty-based human-rights claim can be framed and how quickly a strong claim can fail on timing.

Contents

The Mount Elgon allegations and the Treaty route

A preliminary ruling that treated omission as continuing

The appeal that fixed the limitation rule

Human-rights framing and evidential timing

Practical lessons for regional and national litigation

The Mount Elgon allegations and the Treaty route

Independent Medical Legal Unit (often called IMLU) brought a reference over allegations that Kenyan security forces committed executions, torture and cruel or degrading treatment against people in Mount Elgon District during 2006–2008. The organisation also alleged that the State failed to prevent, investigate or punish the abuses and failed to provide an effective remedy. These were allegations, not findings after a full trial. The EACJ was addressing preliminary objections, so it did not decide whether the alleged atrocities occurred or who was responsible. (Independent Medical Legal Unit, Reference No. 3 of 2010, ruling, 29 June 2011.)

The case is cited as Independent Medical Legal Unit v Attorney General of Kenya and 4 Others, EACJ Reference No. 3 of 2010, [2005–2011] EACJLR 190. The First Instance panel comprised Principal Judge Johnston Busingye, Deputy Principal Judge Mary Stella Arach-Amoko, and Judges John Mkwawa, Jean-Bosco Butasi and Benjamin Kubo. Its ruling addressed jurisdiction, compliance with the rules, joinder, cause of action against the Secretary General, and limitation. The user’s cited decision date, 29 June 2011, is correct for that ruling.

The Treaty route mattered because the EACJ was not then exercising a general individual human-rights complaints jurisdiction. Article 27(2) anticipated that an expanded human-rights jurisdiction could be determined later by the Council, but IMLU invoked the Court’s existing mandate to interpret and apply the Treaty under Articles 23 and 27(1). It argued that Kenya’s alleged failure to investigate and remedy abuse breached Treaty principles of rule of law, good governance and protection of human rights. In Katabazi and 21 Others v Secretary General of the EAC, Reference No. 1 of 2007, the Court had already said that human-rights allegations do not prevent it from exercising its Treaty-interpretation jurisdiction. The claim must be a Treaty case in substance, not simply a human-rights complaint relabelled for another forum.

A preliminary ruling that treated omission as continuing

The key issue at first instance was whether the reference, filed on 12 July 2010, was out of time under Article 30(2). That provision requires a resident’s reference to be instituted within two months of the enactment, publication, directive, decision or action complained of, or, where there is no such event, within two months of the day the matter came to the complainant’s knowledge. Kenya argued that IMLU knew of the events years earlier. IMLU answered that it complained not only of past acts but of a continuing failure to investigate and provide remedies.

The First Instance Division accepted that framing. It treated the alleged failures as a continuing chain from the initial abuses until the State’s failure to provide a remedy, and said that such an omission could not be reduced to a mathematical calculation of time. It rejected the limitation objection, while striking out several respondents for misjoinder or lack of a pleaded cause of action. The rule it appeared to establish was that an ongoing state omission connected to a continuing human-rights wrong could keep an Article 30 reference timely. That approach seemed responsive to the reality that victims may remain without truth or remedy for years.

The appeal that fixed the limitation rule

That was not the final law. In Attorney General of Kenya v Independent Medical Legal Unit, Appeal No. 1 of 2011, the EACJ Appellate Division allowed Kenya’s appeal on 15 March 2012 and struck out the reference as time-barred. The appellate bench comprised President Harold R. Nsekela, Vice-President Philip K. Tunoi, and Justices of Appeal Emily R. Kayitesi, Laurent Nzosaba and James M. Ogoola. The Court held that Article 30(2) provided a firm two-month period and gave the EACJ no power to extend it. It rejected the idea that a continuing breach or failure to investigate could automatically reset the clock. The reports and public information showed that IMLU had knowledge of the alleged events by February 2009 at the latest, more than two months before it filed.

The appellate holding supplies the operative rule: identify the specific state act or omission challenged, establish when the applicant first knew of it, and file within two months. A claimant cannot avoid the Treaty period simply by describing an old event as continuing. The Court distinguished, in practical effect, a continuing legal situation from continuing consequences of a completed act. An ongoing duty may be important to the merits, but the claimant must still show a legally relevant fresh act, decision or omission within the filing period if relying on it as the trigger. The appeal also warned that preliminary objections should be confined to pure points of law unstained by disputed facts; that procedural observation does not relax the limitation rule.

Human-rights framing and evidential timing

IMLU’s lawyers made an important jurisdictional choice. Instead of asking the EACJ simply to adjudicate each person’s Convention rights, they tied the alleged failure to investigate to Articles 5, 6 and 7 of the EAC Treaty. In the appeal, counsel Ms Kilonzo argued that the duty to investigate was continuing and referred to the Inter-American Court’s decision in Moiwana Community v Suriname. Amicus counsel Donald Deya argued that Treaty interpretation remained available even where the facts involved human-rights violations. Kenya’s counsel, Anthony Ombwayo, challenged both the Court’s jurisdiction and the timing, pointing to contemporaneous media coverage and reports. The limitation argument won because those public materials established knowledge dates and the filed reference came much later.

The advocates’ work illustrates a lesson for future counsel. The first-instance approach was morally intuitive but textually vulnerable: Article 30(2) is precise, and the appellate judges refused to create an exception the Treaty did not contain. A stronger filing would have identified each alleged omission separately, dated the latest relevant state decision or refusal, attached the applicant’s first request for investigation and the official response, and explained why that event was a new Treaty-infringing action rather than merely a continuing consequence. If no fresh event exists, counsel should file promptly and address the two-month rule directly instead of assuming that a serious claim has no limitation period. The Court did not say that the underlying allegations were unimportant; it held that this reference was procedurally late.

Timing, proof and the limits of a regional forum

The appellate ruling is most useful when converted into a chronology before a lawyer drafts a reference. List the alleged act, the first date the client knew of it, every later request to the State, each response or refusal, and the date the EACJ filing can realistically be completed. The Article 30(2) period begins on enactment, publication, directive, decision or action, or, where there is none, on knowledge. Because the Appellate Division rejected an open-ended continuing-violation exception, counsel should not leave the trigger date implicit. If the claim involves a failure to investigate, state exactly what the State was legally required to do, when it was asked, how it responded, and why that response is a new Treaty-relevant act rather than a repetition of the original harm.

The evidence in the appeal illustrates why public reports can cut both ways. IMLU relied on reports and public coverage to establish the gravity of the alleged abuses. The same materials showed that the organisation had knowledge much earlier than its 2010 filing. A claimant should therefore explain the difference between publication and actual knowledge by the particular applicant, if that difference is supported by evidence. An affidavit should identify who received a report, when the organisation reviewed it, and whether the report gave enough detail to formulate a Treaty claim. General assertions that the effects continued are unlikely to answer documentary proof of early knowledge.

The Court’s preliminary-objection discussion is also a practical warning to respondents. A legal objection should be raised only where the relevant facts are undisputed and the point can be decided as law. The appeal criticised objections that mix fact and law because they can increase cost and confuse the issues. Where knowledge dates are disputed, a court may need evidence and cannot simply accept a bare limitation plea. But that procedural discipline does not create discretion to extend the Treaty deadline after the relevant facts are established.

A litigant must also distinguish the EACJ from the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, and Kenya’s domestic courts. Each forum has its own jurisdiction, admissibility rules and filing periods. The EACJ reference must allege an infringement of the EAC Treaty, even where it draws on Article 4 or 5 of the African Charter or domestic constitutional duties as context. A claimant should not wait to exhaust one route if another forum has a shorter independent deadline, unless the applicable law requires that sequence.

The claim’s subject matter also affects the remedy a regional court can realistically provide. The EACJ’s role was to determine whether Partner State conduct complied with the Treaty, not to conduct a criminal trial for every alleged killing or torture incident. National criminal investigation, constitutional petitions and regional Treaty proceedings may pursue related but distinct outcomes. A sound pleading can seek a Treaty declaration concerning failure to investigate or uphold rule-of-law obligations while making clear that individual criminal responsibility remains for competent national processes.

Practical lessons for regional and national litigation

The case fits within the EACJ’s developing approach to Treaty-based rights claims. Katabazi confirms that the Court may interpret the Treaty where human rights are implicated; IMLU shows that this route does not convert the EACJ into a general regional human-rights court or displace Article 30(2). National remedies remain important. In Kenya, the Constitution of 2010 protects fair trial, dignity and freedom from torture in Articles 25, 28 and 29, and Article 22 provides standing to enforce the Bill of Rights. These domestic protections have their own procedural rules; they should not be confused with the EAC Treaty’s strict two-month deadline. A litigant may need to assess domestic constitutional proceedings and EACJ proceedings separately and promptly.

There was no dissenting opinion in either the first-instance ruling or the appeal. The First Instance panel’s unanimous reasoning is significant as a historical interpretation, but it was displaced on limitation by the unanimous Appellate Division. It is misleading to cite only the 2011 decision as if it were still the controlling precedent. The useful reading is two-stage: the first ruling teaches how to connect alleged human-rights failures to Treaty principles; the appeal teaches that the jurisdictional doorway has a short clock. For a victim or advocate, the practical sequence is to preserve evidence, record when each official response became known, seek legal advice immediately, and choose a forum without waiting for an investigation to reach a politically convenient conclusion.

This distinction also matters for ordinary readers. A court can accept that an allegation raises a serious rule-of-law question and still refuse to hear it because the filing deadline has passed. Limitation rules protect legal certainty, but their strictness places a real burden on those who may be fearful, traumatised or unaware of regional litigation. The case’s continuing value lies in making both propositions visible. Human-rights language can give a Treaty reference a valid legal frame; only timely action can preserve the court’s ability to decide it.

Reading the ruling without overstating it

The first-instance ruling should not be treated as a general rule that human-rights claims are exempt from limitation. It was a preliminary decision, based on the way the pleading described a chain of state failures, and it was appealed before the merits were heard. The Appellate Division’s later judgment removed the legal basis for treating that chain as an automatic exception. A careful legal article or court submission should therefore cite both decisions and state clearly that the appellate ruling controls the limitation question.

That distinction is particularly important because the alleged conduct was grave. The appellate court did not reject the seriousness of the alleged torture and killings, and it did not find that the Kenyan State had fulfilled its obligations. It decided that the EACJ reference had not been filed within the Treaty period. The procedural outcome is not a factual exoneration. It is a jurisdictional bar in the particular regional proceeding. A reader should not infer from “time-barred” that the events did not occur or that no victim retained a domestic or international remedy.

Kenya’s constitutional framework underscores the separate routes available. Articles 25, 28 and 29 protect non-derogable rights and dignity, while Article 22 permits enforcement of the Bill of Rights. The Prevention of Torture Act 2017 later supplied a statutory framework for torture offences and related duties, but the underlying allegations in IMLU concerned events before that Act. It would be inaccurate to apply later legislation retroactively as the source of the original cause of action. Its later existence is relevant only to the contemporary legal landscape, alongside the Constitution and Kenya’s international obligations.

The case also demonstrates that regional litigation is not simply a matter of translating a domestic constitutional petition into Treaty language. Counsel must identify the Community obligation, the act or omission attributable to the Partner State, the Court’s jurisdiction at the relevant time, and the remedy that follows. Article 6(d)’s respect for human rights and Article 7’s rule-of-law and good-governance principles can be interpreted by the EACJ, but they do not convert every individual claim into a regional appeal. The litigant must satisfy the Treaty’s own procedural limits and plead a genuine regional legal question.

The difference between a continuing duty and a timely claim

The hardest point is that a State may have a continuing duty to investigate a serious crime while a claimant’s procedural right to bring a particular case is subject to a deadline. The Court’s appeal separated those questions. It did not say that the duty ended after two months; it said that Article 30(2) governs when a reference can be filed. Later inaction may matter to the merits or to another forum, but it does not automatically extend the EACJ filing period.

This is why the safest advice is procedural rather than rhetorical: do not wait for the State to finish investigating before protecting the regional deadline. A claimant can preserve the Article 30 route while later investigation proceeds, provided the pleading is sufficiently grounded in facts and Treaty law. The case is a caution that judicial sympathy for a continuing injustice cannot replace a time limit that the Treaty makes mandatory.

Source note

This analysis is based on the EACJ First Instance ruling in Reference No. 3 of 2010, the EACJ appellate judgment in Appeal No. 1 of 2011, the EAC Treaty, the Kenyan Constitution and cited regional decisions. The torture allegations are reported as allegations, not findings on the merits. This is public legal education, not advice in an individual case.

Suggested citation

Ronald Serwanga, “Torture Claims and EACJ Limitation Periods in Kenya,” East Africa Legal Insight (10 October 2026).