REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTSCONSTITUTIONAL AND HUMAN RIGHTS DIVISIONPETITION NO. E506 OF 2022
BETWEEN
SHEM ODONGO OCHUODHO……………..…………….…….PETITIONER
VERSUS
AFRICAN UNION COMMISSION……………….………..1 ST RESPONDENT
ECOSOCC STANDING COMMITTEE…………………..2 ND RESPONDENT
ATTORNEY GENERAL……………………….…………...3 RD RESPONDENT
MINISTRY OF FOREIGN AFFAIRS……………………..4 TH RESPONDENT
MINISTER FOR FOREIGN AFFAIRS…………………...5 TH RESPONDENT
PRINCIPAL SECRETARY, STATE DEPARTMENT FOR FOREIGN AFFAIRS……………….…….……………………………....6 TH RESPONDENT
AMBASSADOR OF KENYA TO THE AFRICAN UNION………………………………………………………..7 TH RESPONDENT
ECOSOCC SECRETARIAT…………………………….....8 TH RESPONDENT
MOUSSA FAKI MAHAMAT……………………………....9 TH RESPONDENT
AND
ABDURAHAMAN AHMED MOKHTAR………...1 ST INTERESTED PARTY
ROLL STEPHANENGOMAT……………………..2 ND INTERESTED PARTY
EL HACENEMBARECK…………………………..3 RD INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 15 th November 2022 was amended on 21 st November 2024 and subsequently on 10 th October 2025. It is supported by the affidavit sworn by the petitioner, Shem Odongo Ochwodho. At the heart of the petition is the petitioner’s challenge to his suspension from the membership and leadership within the African Union (AU) and its organ, the Economic, Social and Cultural Council (ECOSOCC). The petitioner avers that his suspension was undertaken in violation of the governing ECOSOCC Statute and Rules of Procedure and in breach of his constitutional rights. He claims that this suspension was triggered by his involvement in efforts aimed at promoting reforms and accountability within the AU and ECOSOCC.
2. The Petitioner seeks the following relief against the Respondents:
Against the 1 st , 2 nd , 8 th and 9 th Respondents (The African Union Entities):
a) A declaration be issued that the 1 st , 2 nd ,8 th and 9 th Respondents have violated the fundamental rights and legitimate expectations of the Petitioner as guaranteed under the Constitution, International Law, and the African Union's own constitutive instruments, including his right to fair administrative action, fair hearing, and freedom of expression.
b) A declaration that the decision of the 1 st and 9 th Respondents as contained in the letter dated 21 st June 2022, on the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC is ultra vires, contrary to the ECOSOCC Statutes and Rules of Procedure, and violates the Petitioner's rights under Articles 27, 33, 35, 47, 48, and 50 of the Constitution.
c) An order of certiorari to remove into this Court and quash the said decision and letter dated 21 st June 2022, issued by the 1 st and 9 th Respondents, communicating the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC.
d) An order of mandamus compelling the 1 st ,2 nd and 8 th Respondents to immediately reinstate the Petitioner to his rightful position as an elected member of the ECOSOCC General Assembly, with all the attendant rights and privileges, for the remainder of his term.
e) An order of prohibition restraining the 1 st , 2 nd , 8 th and 9 th Respondents from in any way interfering with the Petitioner's tenure, functions, and privileges as an elected member of ECOSOCC, or from recognizing any purported suspension.
f) The 1 st and 8 th Respondents be directed to immediately expunge the name of the Petitioner from the African Union website and any other media used to announce his suspension, and to recall the public notice on the immediate and indefinite suspension of some members of ECOSOCC under the news segment of the African Union website dated 28 th June 2022.
g) The 1 st and 8 th Respondents be directed to publish an unequivocal public apology to the Petitioner on the official African Union website.
h) A declaration that any actions or transactions carried on by the ECOSOCC Secretariat (the 8 th Respondent) after the unlawful and indefinite suspension of the Petitioner are illegal, null and void.
i) Monetary damages to be paid by the 1 st , 2 nd , 8 th and 9 th Respondents, jointly and severally, for the violation of the Petitioner's rights to equal protection and benefit of the law, right to freedom of expression, fair administrative action, right to access to information, right to access to justice, and his right to a fair hearing, and for the injury caused to his reputation and professional standing.
Against the 3 rd ,4 th ,5 th ,6 th and 7 th Respondents (The Kenyan Government Entities):
j) A declaration that the 3 rd , 4 th 5 th 6 th and 7 th Respondents have a constitutional and statutory duty to provide diplomatic protection to the Petitioner, a Kenyan citizen, and to take all necessary steps to vindicate his fundamental rights which have been violated by an international organization of which Kenya is a member state.
k) A declaration that the failure, refusal, or neglect by the 3 rd ,4 th , 5 th ,6 th and 7 th Respondents to intervene, make representations, or take any meaningful action to protect the Petitioner from the unlawful suspension and violation of his rights by the African Union Commission constitutes a dereliction of their constitutional duty and a violation of the Petitioner's legitimate expectation.
l) An order of mandamus compelling the 3 rd , 4 th , 5 th 6 th and 7 th Respondents, individually and collectively, to:
i. Formally intervene in this matter with the African Union Commission (the 1 st Respondent) and its Chairperson (the 9 th Respondent).
ii. Make urgent and strong diplomatic representations demanding the immediate and unconditional reinstatement of the Petitioner to his position in ECOSOCC.
iii. Demand a public retraction and apology from the African Union Commission for the defamatory publication concerning the Petitioner.
iv. Champion the Petitioner's cause within the relevant organs of the African Union, including but not limited to the Executive Council, to ensure the restoration of his rights and reputation.
m) An order of mandamus compelling the 3 rd Respondent, the Attorney General, to take all necessary legal steps, including exploring all available international legal mechanisms, to assist the Petitioner in securing redress for the violations suffered.
n) Monetary damages to be paid by the 3 rd , 4 th , 5 th 6 th and 7 th Respondents, jointly and severally, for their failure, refusal, and neglect to provide diplomatic protection and to vindicate the Petitioner's rights, thereby perpetuating the violation of his fundamental rights and freedoms.
General prayers
o) Costs of this Petition be awarded to the Petitioner against the Respondents, jointly and severally.
p) Interest on any monetary awards at court rates from the date of filing this Petition until payment in full.
q) Any other or further reliefs that this Court may deem fit and just to grant.
The Petitioner’s full Case
3. For context, the Economic and Social Council (ECOSOCC) is an organ of the AU governed by its own Statute and Rules of Procedure, with the General Assembly serving as its highest decision-making and policy-making organ.
4. The petitioner avers that the elected members of the ECOSOCC General Assembly, including himself, had been at the forefront of advocating for reforms and corrective measures aimed at addressing issues that had, in their view, tarnished the name, reputation and integrity of both the AU and ECOSOCC. According to the petitioner, these challenges had been occasioned by a few individuals who were acting with impunity and had subverted the purpose for which ECOSOCC was established.
5. The Petitioner depones that on 13 th December 2019, he, alongside the other General Assembly members, adopted an objection letter to the Standing Committee and Secretariat and the 3 rd Permanent General Assembly. Soon thereafter, on 20 th December 2021, 8 members of the ECOSOCC issued a joint statement on the biased, orchestrated and choreographed investigation report on the members. Subsequently on 17 th January 2022, the AU’s Respondent’s ECOSOCC Standing Committee wrote a letter to the 4 th Respondent requesting support to stop the alleged illegal actions within ECOSOCC.
6. The petitioner deposes that on 21 st June 2022, the 1 st Respondent through its former Chairperson suspended the Petitioner, alongside 7 other members of ECOSOCC, without regard to the applicable provisions of its Statute and Rules of Procedure. He relies on Rule 9.1(c) of the ECOSOCC Rules of Procedure, which provides that the ECOSOCC General Assembly is the body vested with the authority to remove a member for conduct contrary to the objectives and functions of ECOSOCC, and only after such member has been afforded a reasonable opportunity to be heard. He further referred to Rule 8.2 of the Rules of Procedure, which empowers the ECOSOCC Disciplinary Committee to inquire into the conduct of members, and asserts that no such inquiry was undertaken in his case.
7. It is the petitioner’s case that neither the office of the 1 st Respondent’ Chairperson nor any other organ of ECOSOCC possesses authority under the ECOSOCC Statute or Rules of Procedure to sanction elected members or the leadership of ECOSOCC, or to act on behalf of the General Assembly. Consequently, he maintains that the impugned decision contravened the AU’s Constitutive Act, the ECOSOCC Statute and its Rules of Procedure. He further states that four of the five members of the Disciplinary Committee disowned and objected to the action taken by the 1 st respondent, terming it irregular.
8. The petitioner further avers that on two occasions, a two-thirds majority of members of the ECOSOCC General Assembly signed petitions calling for the convening of ordinary and extraordinary General Assemblies, but the requests were either ignored or repudiated by the Secretariat. Instead, he alleges that the Secretariat, with the support of the 1 st respondent, convened a sham General Assembly in December 2020, despite the absence of authorization from either the General Assembly or the Standing Committee and without the requisite quorum, while presenting it as a legitimate General Assembly.
9. He further states that the Office of the Legal Counsel (OLC) of the African Union prepared a report addressed to the Office of Internal Oversight (OIO) recommending, pursuant to Rule 17(a) of the ECOSOCC Rules of Procedure, that the Chairperson of the 1 st respondent urgently convenes a virtual session of the ECOSOCC General Assembly to address the matters in question. According to the petitioner, this recommendation was never acted upon by the 1 st respondent for unknown reasons, thereby violating the ECOSOCC Statute.
10. The petitioner underscores that ECOSOCC members had consistently raised concerns before the 1 st respondent regarding the management of the ECOSOCC Secretariat, including allegations of corruption, misappropriation of funds, misrepresentation, disrespect towards ECOSOCC leadership and obstruction of the reform agenda advanced by the leadership. He asserts that his efforts to champion reform and corrective measures in relation to those concerns were frustrated and that the respondents sought to silence the reform agenda.
11. The petitioner asserts that his indefinite suspension from his elected office to serve the AU and African people, was effected without proper application of the law, without due process and without legal authority under the ECOSOCC Statute and the AU’s Constitutive Act. He emphasizes that he had never received a formal warning prior to the impugned decision, which he claims was contrary to the established international standards, and that his numerous requests to engage the 1 st respondent’s former Chairperson went unanswered. He further avers that his request to the former Chairperson to rescind the decision vide a letter dated 5 th July 2022 was similarly ignored. He notes that his term of office eventually expired in December 2022.
12. The petitioner further states that the former Chairperson misled the Executive Council in order to advance improper objectives which were directed against ECOSOCC’s elected leadership. He also claims that the former Chairperson publicized the Petitioner’s suspension through a press release circulated across Africa, thereby causing serious injury to the Petitioner’s reputation.
13. On the basis of the foregoing, the petitioner contends that the 1 st , 2 nd , 8 th and 9 th respondents violated several of his constitutional rights and freedoms. In particular, he claims that his right under Article 32 of the Constitution were infringed when he was suspended as a member of ECOSOCC before his complaint was heard and determined by the General Assembly.
14. The Petitioner also alleges a violation of Article 33(1) of the Constitution by reason of attempts to censure him for exposing alleged dysfunction, abuse of office and misappropriation of funds within the AU. He pleads a violation of Article 35(1) of the Constitution by the respondents’ failure to furnish him with the actions that necessitated his suspension.
15. Additionally, the Petitioner claims that Article 47(1) and (2) of the Constitution was violated through the failure to comply with the legal and procedural requirements governing cessation of membership under the ECOSOCC Statute. Finally, he accentuates violations of Articles 48 and 50(1) of the Constitution on the ground that he was denied an opportunity to defend himself against the suspension.
16. In light of the outlined grievances, the petitioner implores this Court to grant the reliefs sought in the amended petition, contending that failure to do so would deny him the opportunity to clear his name and will leave ECOSOCC vulnerable to continued mismanagement by the Secretariat and undue influence by the 1 st respondent.
No responses by the Respondents
17. The Respondents did not file any responses to the petition or amended Petition despite being served with the same. Neither did they appear not file any submissions.
The Petitioner’s and Interested Parties’ Submissions
18. The petitioner, through his counsel filed written submissions dated 10 th October 2025 and outlined the principal issue for determination as- whether this Court has jurisdiction to hear and determine the petition. These issues were discussed under five sub-topics as follows.
Primacy of the Constitution and the Extra-Territorial Application of the Bill of Rights
19. The petitioner submitted that this Court is vested with both constitutional and statutory authority to entertain the matter. Reliance was placed on Article 2(1) of the Constitution, which affirms the supremacy of the Constitution and its binding effect on all persons and State organs at every level of government. It was submitted that the 1 st respondent, being an entity operating within the Kenyan legal sphere by virtue of its presence and actions affecting a Kenyan citizen, cannot be shielded from the application of the Constitution. The petitioner further invoked Article 21(3) of the Constitution, arguing that it imposes a duty upon State organs to address the needs of vulnerable groups within the society, including minorities and marginalized persons. According to the petitioner, a citizen confronted by the power of an international organization without access to its internal justice mechanisms falls within the category of persons deserving of such protection.
20. The petitioner relied on Article 21(1) of the Constitution, which obligates the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. It was submitted that this obligation arises whenever the rights of a Kenyan citizen are infringed, irrespective of the territorial location of the violator, particularly where the consequences of the alleged violation are felt within Kenya through injury to the petitioner’s reputation and professional standing.
The doctrine of diplomatic protection and the role of Kenyan state organs,
21. the petitioner submitted that the 3 rd to 7 th respondents bear both constitutional and international law obligations to provide diplomatic protection to him. In support of this proposition, reliance was placed on Nottebohm Case [1955] ICJ 1 . The petitioner argued that these respondents had failed to intervene or make representations to the AU on his behalf and had thereby neglected their obligations, rendering them necessary parties to the proceedings so that the Court may compel them to act. Particular emphasis was placed on the role of the 5 th respondent, who was said to be a member of the AU’s Executive Council. In the petitioner’s opinion, that position imposes a specific responsibility upon the 5 th respondent to safeguard and advance the rights of Kenyan citizens within the policy organs of the AU. The petitioner submitted that the failure to discharge that responsibility constituted a breach of a statutory and treaty-based obligation which is amenable to review and appropriate orders by this Court.
Incorporation of international law and treaty obligation ,
22. The petitioner relied on Articles 2(5) and 2(6) of the Constitution, submitting that Kenya is a State Party to the Constitutive Act of the AU, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. It was argued that the petition does not invite the Court to sit on appeal over the decisions of the 1 st respondent but rather to adjudicate upon the application of international legal principles that form part of Kenyan law.
23. The petitioner further invoked the principle of pacta sunt servanda , namely that agreements must be honoured and argued that the actions of the 1 st respondent ought to be consistent with the human rights objectives embodied in the instruments governing it. In that regard, it was submitted on his behalf that this Court possesses jurisdiction to ensure that those incorporated international norms are not violated with impunity.
The territorial nexus and localization of the violation
24. The Petitioner submitted that the dispute bears a substantial and direct connection to Kenya in that he is a Kenyan citizen residing in Nairobi and that the injury to his reputation was disseminated internationally, including within Kenya, thereby causing him harm. He further argued that the impugned suspension impeded his ability to serve the African diaspora and to advance his professional career from his base in Kenya. It was also pointed out that the legal notice demanding redress originated from Kenya and that the Kenyan Government, as a member state of the AU, serves as the principal conduit through which decisions of the AU are implemented and enforced within the national territory. Accordingly, the Petitioner underscored that, the joinder of the Kenyan State was necessary to prevent it from being complicit in, or failing to mitigate, the alleged unlawful acts perpetrated against him.
On exhaustion of local remedies and access to justice ,
25. The petitioner relied on Articles 48 and 50(1) of the Constitution, which guarantee the right of access to justice and the right to a fair hearing respectively. He maintained that his suspension was effected without the benefit of any internal appeal mechanism or access to an independent tribunal within the structures of the 1 st respondent. He further submitted that the ECOSOCC Disciplinary Committee, which ought to have addressed the matter, was sidelined during the process. In those circumstances, the petitioner submitted that a vacuum of justice had arisen, leaving the Kenyan courts as the only available forum for redress. Consequently, he argued that declining jurisdiction would effectively deny him access to justice and leave him without an effective remedy.
Analysis and Determination
26. From the foregoing account, I find that the main issues for determination are:
i. w hether this Court has jurisdiction to entertain the petition
ii. Whether the Petition is merited
iii. What orders should this Court make?
27. The issue of jurisdiction must be resolved at the outset, as it touches on the foundation of a Court's authority to entertain and determine a matter. The Supreme Court addressed itself on this issue in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) as follows:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
28. Similarly, the Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) opined as follows:
“19. …Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself…In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
29. In this matter, the Petitioner impugns his alleged unlawful suspension from his elected position as a member of ECOSOCC, contrary to its Statute and Rules of Procedure. The petitioner asserts that the decision was undertaken without regard to ECOSOCC’s General Assembly and further without affording him an opportunity to be heard.
30. The petitioner avers that the suspension violated his constitutional rights. He faults the 3 rd , 4 th , 5 th , 6 th and 7 th respondents for allegedly failing to afford him protection and redress in respect of the actions complained of. Ultimately, the petitioner seeks reliefs against the respondents owing to the cited alleged violations and their alleged effects on his professional reputation.
31. Albeit this Court determined the question of jurisdiction regarding the place of the 1 st , 2 nd , 8 th and 9th Respondents in an earlier ruling rendered on 3 rd July 2026, it is important to restate here the jurisdictional issue because the issues raised by the Petitioner on jurisdiction of the Court to hear and determine the petition as against all the respondents are intertwined.
32. The Supreme Court in Kandie v Ba & another [2017] KESC 13 (KLR) discussing a comparable matter observed as follows:
“78. Before applying the ‘reasonable and justifiable’ test, therefore, a court must first determine whether a right has been limited under a particular law and in this case, we have held that the appellant cannot proceed with the case against the respondents, because the respondents are clothed with immunity from legal processes, which applies to the arrest and detention of the 1st respondent. Thus, the appellant’s right of access to justice through the courts, is necessarily limited, as the respondents’ immunity which is provided for in the law, and arises from treaties and conventions which form part of the laws of Kenya under article 2(6) of the Constitution. Sections 23 of the host country agreement further provides that senior officials of Shelter Afrique shall enjoy immunity from legal processes in respect of words or actions performed in their official capacity, immunity from personal arrest or detention, as well as from seizure of their personal and official baggage, and from inspection of their baggage; and Section 24 thereof extends the immunity to the Managing Directors and Officials of Shelter Afrique having the rank of Assistant Director, and that their immunities and privileges will be similar to those accorded to ambassadors.
79.Is this limitation reasonable and justifiable? It is important to consider the factors set out in the Constitution, that will assist us to answer this question including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual does not prejudice the rights of others, as well the consideration the relationship between the limitation and its purpose, and whether there is a less restrictive means to achieve that purpose. We will herebelow carry out an analysis on the rights that the appellant alleges were unjustifiably limited.
Article 48
80.Article 48 of the Constitution provides for the right to access justice as follows:
“The State shall ensure access to justice for all persons, and if any fee is required, it shall be reasonable and shall not impede access to justice.”
81.The Court of Appeal examined the scope of this right in the case of Joseph Nyamamba & 4 others v Kenya Railways Corporation [2015] Civil Appeal No 239 of 2009 eKLR where it held that—
“The scope of access to justice as so enshrined is very wide – it includes ability of a party to file suit in court, ability to access the police with legitimate expectation of fair, expeditious and prompt investigations of one’s complaint, prosecution of suspects, enforcement of decrees and orders issued by a court and prompt and fair compensation by government upon compulsory acquisition of one’s property for public use – see, for exposition of these principles, Dry Associates v Capital Markets Authority & anor Petition No 328 of 2011 (unreported).”
82.The High Court, in the case of Kenya Bus Services Limited and anor v. Minister of Transport & 2 others [2012] eKLR, also conducted an analysis of article 48 and held as follows:
“37.… Without access to justice the objects of the Constitution which is to build a society founded upon the rule of law, dignity, social justice and democracy cannot be realised for it is within the legal processes that the rights and fundamental freedoms are realised. Article 48 therefore invites the court to consider the conditions which clog and fetter the right of persons to seek the assistance of courts of law.”
83.In the above context and in a nutshell, the appellant argued that the conferment of immunity upon the respondents has restricted her access to justice. To the contrary, the respondents argued that they were clothed with diplomatic immunity, whose purpose is to ensure efficient performance of the functions of a diplomatic mission, by its employees, and was therefore not disproportionate.
84.In that regard, it must be noted that the right of access to justice provided under article 48 is not an absolute right listed under article 25 of the Constitution, and therefore it can, in proper circumstances, be limited by the law. In invoking article 24(3), the respondents have presented submissions as to why this right is reasonably and justifiably limited. It was argued on their behalf that, immunity is only a procedural bar, and not a limitation of the right to access justice, and it was not a disproportionate limitation as it served the purpose of fulfilling international law obligations of allowing diplomatic missions and its employees to carry out their functions. We agree with that submission, and find that it is not unjustified to hold that the legitimate aim of diplomatic immunity is for the state to meet its obligations under international law, and to allow diplomats and those clothed with diplomatic immunity, like the respondents, to effectively conduct their official functions, without any hindrance.
85.In concluding on this issue, we therefore find that after balancing the right of the appellant to access justice, and Kenya’s obligation to ensure that it meets its international obligations of letting the respondents work without hindrance, the limitation on the right to access courts is not disproportionate. The conferment of immunity for the purposes of Kenya upholding its international law obligations, is to that extent, a reasonable and justifiable limitation of the right to access justice as provided under article 48 of the Constitution, and we so hold.”
33. The Court concluded as follows:
“We have held that all treaties and conventions that Kenya has ratified form part of Kenyan law, subject to the Constitution. We have also
[...truncated]
MILIMANI LAW COURTSCONSTITUTIONAL AND HUMAN RIGHTS DIVISIONPETITION NO. E506 OF 2022
BETWEEN
SHEM ODONGO OCHUODHO……………..…………….…….PETITIONER
VERSUS
AFRICAN UNION COMMISSION……………….………..1 ST RESPONDENT
ECOSOCC STANDING COMMITTEE…………………..2 ND RESPONDENT
ATTORNEY GENERAL……………………….…………...3 RD RESPONDENT
MINISTRY OF FOREIGN AFFAIRS……………………..4 TH RESPONDENT
MINISTER FOR FOREIGN AFFAIRS…………………...5 TH RESPONDENT
PRINCIPAL SECRETARY, STATE DEPARTMENT FOR FOREIGN AFFAIRS……………….…….……………………………....6 TH RESPONDENT
AMBASSADOR OF KENYA TO THE AFRICAN UNION………………………………………………………..7 TH RESPONDENT
ECOSOCC SECRETARIAT…………………………….....8 TH RESPONDENT
MOUSSA FAKI MAHAMAT……………………………....9 TH RESPONDENT
AND
ABDURAHAMAN AHMED MOKHTAR………...1 ST INTERESTED PARTY
ROLL STEPHANENGOMAT……………………..2 ND INTERESTED PARTY
EL HACENEMBARECK…………………………..3 RD INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 15 th November 2022 was amended on 21 st November 2024 and subsequently on 10 th October 2025. It is supported by the affidavit sworn by the petitioner, Shem Odongo Ochwodho. At the heart of the petition is the petitioner’s challenge to his suspension from the membership and leadership within the African Union (AU) and its organ, the Economic, Social and Cultural Council (ECOSOCC). The petitioner avers that his suspension was undertaken in violation of the governing ECOSOCC Statute and Rules of Procedure and in breach of his constitutional rights. He claims that this suspension was triggered by his involvement in efforts aimed at promoting reforms and accountability within the AU and ECOSOCC.
2. The Petitioner seeks the following relief against the Respondents:
Against the 1 st , 2 nd , 8 th and 9 th Respondents (The African Union Entities):
a) A declaration be issued that the 1 st , 2 nd ,8 th and 9 th Respondents have violated the fundamental rights and legitimate expectations of the Petitioner as guaranteed under the Constitution, International Law, and the African Union's own constitutive instruments, including his right to fair administrative action, fair hearing, and freedom of expression.
b) A declaration that the decision of the 1 st and 9 th Respondents as contained in the letter dated 21 st June 2022, on the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC is ultra vires, contrary to the ECOSOCC Statutes and Rules of Procedure, and violates the Petitioner's rights under Articles 27, 33, 35, 47, 48, and 50 of the Constitution.
c) An order of certiorari to remove into this Court and quash the said decision and letter dated 21 st June 2022, issued by the 1 st and 9 th Respondents, communicating the immediate and indefinite suspension of the Petitioner as a member of the ECOSOCC.
d) An order of mandamus compelling the 1 st ,2 nd and 8 th Respondents to immediately reinstate the Petitioner to his rightful position as an elected member of the ECOSOCC General Assembly, with all the attendant rights and privileges, for the remainder of his term.
e) An order of prohibition restraining the 1 st , 2 nd , 8 th and 9 th Respondents from in any way interfering with the Petitioner's tenure, functions, and privileges as an elected member of ECOSOCC, or from recognizing any purported suspension.
f) The 1 st and 8 th Respondents be directed to immediately expunge the name of the Petitioner from the African Union website and any other media used to announce his suspension, and to recall the public notice on the immediate and indefinite suspension of some members of ECOSOCC under the news segment of the African Union website dated 28 th June 2022.
g) The 1 st and 8 th Respondents be directed to publish an unequivocal public apology to the Petitioner on the official African Union website.
h) A declaration that any actions or transactions carried on by the ECOSOCC Secretariat (the 8 th Respondent) after the unlawful and indefinite suspension of the Petitioner are illegal, null and void.
i) Monetary damages to be paid by the 1 st , 2 nd , 8 th and 9 th Respondents, jointly and severally, for the violation of the Petitioner's rights to equal protection and benefit of the law, right to freedom of expression, fair administrative action, right to access to information, right to access to justice, and his right to a fair hearing, and for the injury caused to his reputation and professional standing.
Against the 3 rd ,4 th ,5 th ,6 th and 7 th Respondents (The Kenyan Government Entities):
j) A declaration that the 3 rd , 4 th 5 th 6 th and 7 th Respondents have a constitutional and statutory duty to provide diplomatic protection to the Petitioner, a Kenyan citizen, and to take all necessary steps to vindicate his fundamental rights which have been violated by an international organization of which Kenya is a member state.
k) A declaration that the failure, refusal, or neglect by the 3 rd ,4 th , 5 th ,6 th and 7 th Respondents to intervene, make representations, or take any meaningful action to protect the Petitioner from the unlawful suspension and violation of his rights by the African Union Commission constitutes a dereliction of their constitutional duty and a violation of the Petitioner's legitimate expectation.
l) An order of mandamus compelling the 3 rd , 4 th , 5 th 6 th and 7 th Respondents, individually and collectively, to:
i. Formally intervene in this matter with the African Union Commission (the 1 st Respondent) and its Chairperson (the 9 th Respondent).
ii. Make urgent and strong diplomatic representations demanding the immediate and unconditional reinstatement of the Petitioner to his position in ECOSOCC.
iii. Demand a public retraction and apology from the African Union Commission for the defamatory publication concerning the Petitioner.
iv. Champion the Petitioner's cause within the relevant organs of the African Union, including but not limited to the Executive Council, to ensure the restoration of his rights and reputation.
m) An order of mandamus compelling the 3 rd Respondent, the Attorney General, to take all necessary legal steps, including exploring all available international legal mechanisms, to assist the Petitioner in securing redress for the violations suffered.
n) Monetary damages to be paid by the 3 rd , 4 th , 5 th 6 th and 7 th Respondents, jointly and severally, for their failure, refusal, and neglect to provide diplomatic protection and to vindicate the Petitioner's rights, thereby perpetuating the violation of his fundamental rights and freedoms.
General prayers
o) Costs of this Petition be awarded to the Petitioner against the Respondents, jointly and severally.
p) Interest on any monetary awards at court rates from the date of filing this Petition until payment in full.
q) Any other or further reliefs that this Court may deem fit and just to grant.
The Petitioner’s full Case
3. For context, the Economic and Social Council (ECOSOCC) is an organ of the AU governed by its own Statute and Rules of Procedure, with the General Assembly serving as its highest decision-making and policy-making organ.
4. The petitioner avers that the elected members of the ECOSOCC General Assembly, including himself, had been at the forefront of advocating for reforms and corrective measures aimed at addressing issues that had, in their view, tarnished the name, reputation and integrity of both the AU and ECOSOCC. According to the petitioner, these challenges had been occasioned by a few individuals who were acting with impunity and had subverted the purpose for which ECOSOCC was established.
5. The Petitioner depones that on 13 th December 2019, he, alongside the other General Assembly members, adopted an objection letter to the Standing Committee and Secretariat and the 3 rd Permanent General Assembly. Soon thereafter, on 20 th December 2021, 8 members of the ECOSOCC issued a joint statement on the biased, orchestrated and choreographed investigation report on the members. Subsequently on 17 th January 2022, the AU’s Respondent’s ECOSOCC Standing Committee wrote a letter to the 4 th Respondent requesting support to stop the alleged illegal actions within ECOSOCC.
6. The petitioner deposes that on 21 st June 2022, the 1 st Respondent through its former Chairperson suspended the Petitioner, alongside 7 other members of ECOSOCC, without regard to the applicable provisions of its Statute and Rules of Procedure. He relies on Rule 9.1(c) of the ECOSOCC Rules of Procedure, which provides that the ECOSOCC General Assembly is the body vested with the authority to remove a member for conduct contrary to the objectives and functions of ECOSOCC, and only after such member has been afforded a reasonable opportunity to be heard. He further referred to Rule 8.2 of the Rules of Procedure, which empowers the ECOSOCC Disciplinary Committee to inquire into the conduct of members, and asserts that no such inquiry was undertaken in his case.
7. It is the petitioner’s case that neither the office of the 1 st Respondent’ Chairperson nor any other organ of ECOSOCC possesses authority under the ECOSOCC Statute or Rules of Procedure to sanction elected members or the leadership of ECOSOCC, or to act on behalf of the General Assembly. Consequently, he maintains that the impugned decision contravened the AU’s Constitutive Act, the ECOSOCC Statute and its Rules of Procedure. He further states that four of the five members of the Disciplinary Committee disowned and objected to the action taken by the 1 st respondent, terming it irregular.
8. The petitioner further avers that on two occasions, a two-thirds majority of members of the ECOSOCC General Assembly signed petitions calling for the convening of ordinary and extraordinary General Assemblies, but the requests were either ignored or repudiated by the Secretariat. Instead, he alleges that the Secretariat, with the support of the 1 st respondent, convened a sham General Assembly in December 2020, despite the absence of authorization from either the General Assembly or the Standing Committee and without the requisite quorum, while presenting it as a legitimate General Assembly.
9. He further states that the Office of the Legal Counsel (OLC) of the African Union prepared a report addressed to the Office of Internal Oversight (OIO) recommending, pursuant to Rule 17(a) of the ECOSOCC Rules of Procedure, that the Chairperson of the 1 st respondent urgently convenes a virtual session of the ECOSOCC General Assembly to address the matters in question. According to the petitioner, this recommendation was never acted upon by the 1 st respondent for unknown reasons, thereby violating the ECOSOCC Statute.
10. The petitioner underscores that ECOSOCC members had consistently raised concerns before the 1 st respondent regarding the management of the ECOSOCC Secretariat, including allegations of corruption, misappropriation of funds, misrepresentation, disrespect towards ECOSOCC leadership and obstruction of the reform agenda advanced by the leadership. He asserts that his efforts to champion reform and corrective measures in relation to those concerns were frustrated and that the respondents sought to silence the reform agenda.
11. The petitioner asserts that his indefinite suspension from his elected office to serve the AU and African people, was effected without proper application of the law, without due process and without legal authority under the ECOSOCC Statute and the AU’s Constitutive Act. He emphasizes that he had never received a formal warning prior to the impugned decision, which he claims was contrary to the established international standards, and that his numerous requests to engage the 1 st respondent’s former Chairperson went unanswered. He further avers that his request to the former Chairperson to rescind the decision vide a letter dated 5 th July 2022 was similarly ignored. He notes that his term of office eventually expired in December 2022.
12. The petitioner further states that the former Chairperson misled the Executive Council in order to advance improper objectives which were directed against ECOSOCC’s elected leadership. He also claims that the former Chairperson publicized the Petitioner’s suspension through a press release circulated across Africa, thereby causing serious injury to the Petitioner’s reputation.
13. On the basis of the foregoing, the petitioner contends that the 1 st , 2 nd , 8 th and 9 th respondents violated several of his constitutional rights and freedoms. In particular, he claims that his right under Article 32 of the Constitution were infringed when he was suspended as a member of ECOSOCC before his complaint was heard and determined by the General Assembly.
14. The Petitioner also alleges a violation of Article 33(1) of the Constitution by reason of attempts to censure him for exposing alleged dysfunction, abuse of office and misappropriation of funds within the AU. He pleads a violation of Article 35(1) of the Constitution by the respondents’ failure to furnish him with the actions that necessitated his suspension.
15. Additionally, the Petitioner claims that Article 47(1) and (2) of the Constitution was violated through the failure to comply with the legal and procedural requirements governing cessation of membership under the ECOSOCC Statute. Finally, he accentuates violations of Articles 48 and 50(1) of the Constitution on the ground that he was denied an opportunity to defend himself against the suspension.
16. In light of the outlined grievances, the petitioner implores this Court to grant the reliefs sought in the amended petition, contending that failure to do so would deny him the opportunity to clear his name and will leave ECOSOCC vulnerable to continued mismanagement by the Secretariat and undue influence by the 1 st respondent.
No responses by the Respondents
17. The Respondents did not file any responses to the petition or amended Petition despite being served with the same. Neither did they appear not file any submissions.
The Petitioner’s and Interested Parties’ Submissions
18. The petitioner, through his counsel filed written submissions dated 10 th October 2025 and outlined the principal issue for determination as- whether this Court has jurisdiction to hear and determine the petition. These issues were discussed under five sub-topics as follows.
Primacy of the Constitution and the Extra-Territorial Application of the Bill of Rights
19. The petitioner submitted that this Court is vested with both constitutional and statutory authority to entertain the matter. Reliance was placed on Article 2(1) of the Constitution, which affirms the supremacy of the Constitution and its binding effect on all persons and State organs at every level of government. It was submitted that the 1 st respondent, being an entity operating within the Kenyan legal sphere by virtue of its presence and actions affecting a Kenyan citizen, cannot be shielded from the application of the Constitution. The petitioner further invoked Article 21(3) of the Constitution, arguing that it imposes a duty upon State organs to address the needs of vulnerable groups within the society, including minorities and marginalized persons. According to the petitioner, a citizen confronted by the power of an international organization without access to its internal justice mechanisms falls within the category of persons deserving of such protection.
20. The petitioner relied on Article 21(1) of the Constitution, which obligates the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. It was submitted that this obligation arises whenever the rights of a Kenyan citizen are infringed, irrespective of the territorial location of the violator, particularly where the consequences of the alleged violation are felt within Kenya through injury to the petitioner’s reputation and professional standing.
The doctrine of diplomatic protection and the role of Kenyan state organs,
21. the petitioner submitted that the 3 rd to 7 th respondents bear both constitutional and international law obligations to provide diplomatic protection to him. In support of this proposition, reliance was placed on Nottebohm Case [1955] ICJ 1 . The petitioner argued that these respondents had failed to intervene or make representations to the AU on his behalf and had thereby neglected their obligations, rendering them necessary parties to the proceedings so that the Court may compel them to act. Particular emphasis was placed on the role of the 5 th respondent, who was said to be a member of the AU’s Executive Council. In the petitioner’s opinion, that position imposes a specific responsibility upon the 5 th respondent to safeguard and advance the rights of Kenyan citizens within the policy organs of the AU. The petitioner submitted that the failure to discharge that responsibility constituted a breach of a statutory and treaty-based obligation which is amenable to review and appropriate orders by this Court.
Incorporation of international law and treaty obligation ,
22. The petitioner relied on Articles 2(5) and 2(6) of the Constitution, submitting that Kenya is a State Party to the Constitutive Act of the AU, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. It was argued that the petition does not invite the Court to sit on appeal over the decisions of the 1 st respondent but rather to adjudicate upon the application of international legal principles that form part of Kenyan law.
23. The petitioner further invoked the principle of pacta sunt servanda , namely that agreements must be honoured and argued that the actions of the 1 st respondent ought to be consistent with the human rights objectives embodied in the instruments governing it. In that regard, it was submitted on his behalf that this Court possesses jurisdiction to ensure that those incorporated international norms are not violated with impunity.
The territorial nexus and localization of the violation
24. The Petitioner submitted that the dispute bears a substantial and direct connection to Kenya in that he is a Kenyan citizen residing in Nairobi and that the injury to his reputation was disseminated internationally, including within Kenya, thereby causing him harm. He further argued that the impugned suspension impeded his ability to serve the African diaspora and to advance his professional career from his base in Kenya. It was also pointed out that the legal notice demanding redress originated from Kenya and that the Kenyan Government, as a member state of the AU, serves as the principal conduit through which decisions of the AU are implemented and enforced within the national territory. Accordingly, the Petitioner underscored that, the joinder of the Kenyan State was necessary to prevent it from being complicit in, or failing to mitigate, the alleged unlawful acts perpetrated against him.
On exhaustion of local remedies and access to justice ,
25. The petitioner relied on Articles 48 and 50(1) of the Constitution, which guarantee the right of access to justice and the right to a fair hearing respectively. He maintained that his suspension was effected without the benefit of any internal appeal mechanism or access to an independent tribunal within the structures of the 1 st respondent. He further submitted that the ECOSOCC Disciplinary Committee, which ought to have addressed the matter, was sidelined during the process. In those circumstances, the petitioner submitted that a vacuum of justice had arisen, leaving the Kenyan courts as the only available forum for redress. Consequently, he argued that declining jurisdiction would effectively deny him access to justice and leave him without an effective remedy.
Analysis and Determination
26. From the foregoing account, I find that the main issues for determination are:
i. w hether this Court has jurisdiction to entertain the petition
ii. Whether the Petition is merited
iii. What orders should this Court make?
27. The issue of jurisdiction must be resolved at the outset, as it touches on the foundation of a Court's authority to entertain and determine a matter. The Supreme Court addressed itself on this issue in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) as follows:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
28. Similarly, the Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) opined as follows:
“19. …Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself…In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
29. In this matter, the Petitioner impugns his alleged unlawful suspension from his elected position as a member of ECOSOCC, contrary to its Statute and Rules of Procedure. The petitioner asserts that the decision was undertaken without regard to ECOSOCC’s General Assembly and further without affording him an opportunity to be heard.
30. The petitioner avers that the suspension violated his constitutional rights. He faults the 3 rd , 4 th , 5 th , 6 th and 7 th respondents for allegedly failing to afford him protection and redress in respect of the actions complained of. Ultimately, the petitioner seeks reliefs against the respondents owing to the cited alleged violations and their alleged effects on his professional reputation.
31. Albeit this Court determined the question of jurisdiction regarding the place of the 1 st , 2 nd , 8 th and 9th Respondents in an earlier ruling rendered on 3 rd July 2026, it is important to restate here the jurisdictional issue because the issues raised by the Petitioner on jurisdiction of the Court to hear and determine the petition as against all the respondents are intertwined.
32. The Supreme Court in Kandie v Ba & another [2017] KESC 13 (KLR) discussing a comparable matter observed as follows:
“78. Before applying the ‘reasonable and justifiable’ test, therefore, a court must first determine whether a right has been limited under a particular law and in this case, we have held that the appellant cannot proceed with the case against the respondents, because the respondents are clothed with immunity from legal processes, which applies to the arrest and detention of the 1st respondent. Thus, the appellant’s right of access to justice through the courts, is necessarily limited, as the respondents’ immunity which is provided for in the law, and arises from treaties and conventions which form part of the laws of Kenya under article 2(6) of the Constitution. Sections 23 of the host country agreement further provides that senior officials of Shelter Afrique shall enjoy immunity from legal processes in respect of words or actions performed in their official capacity, immunity from personal arrest or detention, as well as from seizure of their personal and official baggage, and from inspection of their baggage; and Section 24 thereof extends the immunity to the Managing Directors and Officials of Shelter Afrique having the rank of Assistant Director, and that their immunities and privileges will be similar to those accorded to ambassadors.
79.Is this limitation reasonable and justifiable? It is important to consider the factors set out in the Constitution, that will assist us to answer this question including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual does not prejudice the rights of others, as well the consideration the relationship between the limitation and its purpose, and whether there is a less restrictive means to achieve that purpose. We will herebelow carry out an analysis on the rights that the appellant alleges were unjustifiably limited.
Article 48
80.Article 48 of the Constitution provides for the right to access justice as follows:
“The State shall ensure access to justice for all persons, and if any fee is required, it shall be reasonable and shall not impede access to justice.”
81.The Court of Appeal examined the scope of this right in the case of Joseph Nyamamba & 4 others v Kenya Railways Corporation [2015] Civil Appeal No 239 of 2009 eKLR where it held that—
“The scope of access to justice as so enshrined is very wide – it includes ability of a party to file suit in court, ability to access the police with legitimate expectation of fair, expeditious and prompt investigations of one’s complaint, prosecution of suspects, enforcement of decrees and orders issued by a court and prompt and fair compensation by government upon compulsory acquisition of one’s property for public use – see, for exposition of these principles, Dry Associates v Capital Markets Authority & anor Petition No 328 of 2011 (unreported).”
82.The High Court, in the case of Kenya Bus Services Limited and anor v. Minister of Transport & 2 others [2012] eKLR, also conducted an analysis of article 48 and held as follows:
“37.… Without access to justice the objects of the Constitution which is to build a society founded upon the rule of law, dignity, social justice and democracy cannot be realised for it is within the legal processes that the rights and fundamental freedoms are realised. Article 48 therefore invites the court to consider the conditions which clog and fetter the right of persons to seek the assistance of courts of law.”
83.In the above context and in a nutshell, the appellant argued that the conferment of immunity upon the respondents has restricted her access to justice. To the contrary, the respondents argued that they were clothed with diplomatic immunity, whose purpose is to ensure efficient performance of the functions of a diplomatic mission, by its employees, and was therefore not disproportionate.
84.In that regard, it must be noted that the right of access to justice provided under article 48 is not an absolute right listed under article 25 of the Constitution, and therefore it can, in proper circumstances, be limited by the law. In invoking article 24(3), the respondents have presented submissions as to why this right is reasonably and justifiably limited. It was argued on their behalf that, immunity is only a procedural bar, and not a limitation of the right to access justice, and it was not a disproportionate limitation as it served the purpose of fulfilling international law obligations of allowing diplomatic missions and its employees to carry out their functions. We agree with that submission, and find that it is not unjustified to hold that the legitimate aim of diplomatic immunity is for the state to meet its obligations under international law, and to allow diplomats and those clothed with diplomatic immunity, like the respondents, to effectively conduct their official functions, without any hindrance.
85.In concluding on this issue, we therefore find that after balancing the right of the appellant to access justice, and Kenya’s obligation to ensure that it meets its international obligations of letting the respondents work without hindrance, the limitation on the right to access courts is not disproportionate. The conferment of immunity for the purposes of Kenya upholding its international law obligations, is to that extent, a reasonable and justifiable limitation of the right to access justice as provided under article 48 of the Constitution, and we so hold.”
33. The Court concluded as follows:
“We have held that all treaties and conventions that Kenya has ratified form part of Kenyan law, subject to the Constitution. We have also
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