New twist as 20 move to court over Kenya-Somalia border clash

20 petitioners have moved to court seeking to stop Kenya from taking part in the maritime delimitation case filed at the International Court of Justice.

This comes two days after the ICJ said parties in the case will appear for submissions on September 3 this year.

According to the petitioners, if Kenya is allowed to participate, it has the potential of permitting an unconstitutional alteration of its boundaries.

“The petitioners are apprehensive that unless this application is certified urgent and determined expeditiously, the respondents will continue acting in contravention to the constitution by filing submissions and otherwise participating in the proceedings in the maritime delimitation in the Indian ocean (Somali vs Kenya) with the potential of permitting an unconstitutional alteration of Kenya’s boundaries, thereby rendering the petition herein nugatory,” read court papers.

The case filed on Friday at the Milimani Law Courts seeks to restrain the government from taking any measures or decisions that may alter or in any way interfere with the territory or territorial waters comprising Kenya.

This pending the hearing of the Somalia vs Kenya dispute before the International Court of Justice.

Similarly, the petitioners want the case forwarded to the Chief Justice so that he empanels a five judge bench to hear and determine the case on grounds that it raises weighty and constitutional issues that have to be addressed by more than one judge.

“That this honourable court be pleased to certify that this matter raises substantial questions of law and therefore should be heard by a bench of at least 5 judges appointed by the honourable chief justice,” the court papers read.

Through lawyer Kibe Mungai, they argue that Article 1(1), Article 5, and Article 255 of the constitution, Kenyan boundaries cannot be altered except with an approval through a referendum.

Further, they have it that it is in the interest of justice that Kenya’s participation in the ICJ case be restrained with the ultimate aim of which is to purport to render a binding determination on the country’s territory without according the mandatory requirement of an approval in a referendum.

“The respondents are actively participating in legal proceedings at the ICJ which delimit Kenya’s territory in the Indian Ocean by determining the shared boundary between Kenya and Somalia in the Indian Ocean,” the petitioners argue.

The territory in question is a 100,000 square kilometer (38,610 square mile) triangular patch created by projecting the Kenya-Somalia border eastward into the Indian Ocean.