The petition before the Court revolves around the disputed maritime boundary along the Indian Ocean between the Republic of Kenya and the Federal Republic of Somalia. Somalia instituted proceedings against Kenya on 28 August 2014 before the International Court of Justice (the ICJ). Somalia requested the Court to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles. It also requested the Court to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean. The petitioners aver that the maritime delimitation case will result in a binding judgment. Their case is that the ICJ has usurped jurisdiction and that the participation in the proceedings by the respondents contravenes the Constitution. They thus seek, among other relief, a permanent injunction to restrain the respondents from further participation in the case.

Held: Petition dismissed.

UNCLOS defines the rights and responsibilities of nations on the use of the world’s oceans. Kenya signed the treaty on 10 December 1982 and ratified it on 2 March 1989. Articles 74 and 83 deal with delimitation of the exclusive economic zone (EEZ) and the continental shelf between States with opposite or adjacent coasts. The delimitation of both the EEZ and the continental shelf shall be effected by agreement on the basis of international law in order to achieve an equitable solution. But if no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV. Articles 279 and 280 of Part XV are relevant here. The MoU between Kenya and Somalia dated 7 April 2009 was one such attempt by the disputants to resolve the maritime dispute peacefully. Article 282 allows States Parties with a dispute concerning the interpretation or application of the UNCLOS to enter into a general, regional or bilateral agreement or otherwise to resolve the matter peacefully. Such a dispute 'shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in [Part XV] unless the parties to the dispute otherwise agree'. Based on the MoU, Kenya raised the preliminary objection at the ICJ that was two-pronged: first, that the ICJ lacked jurisdiction; and, secondly, that Somalia’s application was inadmissible. The objections were both dismissed.

From the pleadings, depositions and submissions the following issues arise for determination:

i) Whether the participation by the respondents in the proceedings before the ICJ is unconstitutional; and, whether the High Court should injunct them from any further participation in the case. 

Participating in the proceedings before the ICJ is consistent with defending the sovereignty of Kenya and the Constitution. It is the non-participation or the withdrawal from the case that would constitute a surrender of the County’s sovereignty to the mercy of Somalia and the Court. Non-participation or the withdrawal from the case will be prejudicial to the interests of the Republic. Both limbs of this issue are answered in the negative.

ii) Whether the petition is justiciable.

Whereas the Court has power to restrain the respondents from further participating in the proceedings before the ICJ if their conduct infringes the Constitution, the issues emerging from the amended petition would be more effectively resolved by diplomatic, legislative, policy and other executive interventions rather than by a constitutional decision. This issue is also answered in the negative.

iii) Whether the High Court has jurisdiction over proceedings at the ICJ.

The jurisdiction of the High Court, as a municipal court, does not extend to the ICJ. The answer to this issue is thus in the negative.

iv) Who will bear the costs?

Costs ordinarily follow the event and are at the discretion of the Court. The petition was lodged in the public interest. In the interests of justice each party shall bear its own costs.