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Supreme CourtAllowedPetition E016 of 2021

Attorney General v David Ndii & others; Albert & another (Amicus Curiae)

Supreme Court of Kenya
9 November 2021
1,208 words in judgment
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The bottom line

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Supreme Court allows foreign professors to file legal briefs on constitutional amendments.

What this practically means

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The Supreme Court of Kenya has allowed two foreign law professors to submit written legal arguments in a case about the Constitution of Kenya (Amendment) Bill 2020. The professors, Prof Richard Albert and Prof Yaniv Roznai, are experts on constitutional change. They will not make oral presentations but their written briefs are now part of the case. The court said their expertise on topics like the basic structure doctrine will help the judges decide the matter. Each side pays its own costs.

Executive summary

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This is a ruling by the Supreme Court of Kenya on an application by Prof Richard Albert and Prof Yaniv Roznai to be admitted as amici curiae in a pending petition concerning the Constitution of Kenya (Amendment) Bill 2020. The applicants sought to present oral submissions and file amici briefs on constitutional amendment doctrines, including constitutional dismemberment, the basic structure doctrine, and the role of referenda. The court considered the application under rule 19 of the Supreme Court Rules, 2020, which requires proven expertise, independence and impartiality, or public interest. Applying the principles from Trusted Society of Human Rights Alliance v Mumo Matemu, the court found that the applicants demonstrated expertise, neutrality, and no prejudice to parties. The court allowed the application, deeming the amici briefs as filed but denying oral submissions, limiting participation to written briefs. The court ordered each party to bear their own costs. The ruling clarifies the criteria for admitting amici curiae in the Supreme Court, emphasizing the need for expertise, neutrality, and novel legal arguments to aid the development of the law.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have met the criteria for admission as amici curiae under rule 19 of the Supreme Court Rules, 2020 and the principles set out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others

Key legal issues

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01

Whether the applicants, Prof Richard Albert and Prof Yaniv Roznai, have met the criteria for admission as amici curiae in the Supreme Court.

Holding

The court held that the applicants satisfied the criteria under rule 19 of the Supreme Court Rules, 2020, as they demonstrated expertise, neutrality, no relationship with parties, and no pecuniary interest, and their amici briefs would assist the court on constitutional amendment issues.

Reasoning

The court considered the application in light of rule 19 of the Supreme Court Rules, 2020, which requires proven expertise, independence and impartiality, or public interest. The court also applied the guiding principles from Trusted Society of Human Rights Alliance v Mumo Matemu, which emphasize neutrality, timeliness, and addressing novel points of law. The court found that the applicants' detailed amici briefs on constitutional amendments, including basic structure doctrine, would be useful, and no prejudice or partiality was shown.

Legal principles established

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  • Amicus curiae must show proven expertise, independence, and impartiality under Supreme Court Rule 19.
  • An amicus brief must be limited to legal arguments and cannot advocate for any party.
  • Amicus briefs should address points of law not already covered by parties to introduce novel legal issues.
  • Amicus applications must be filed timeously to avoid delaying proceedings.
  • The court may limit amicus participation to written briefs only, denying oral submissions.

Court orders

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  1. 1.The notice of motion dated October 1, 2021 and lodged on October 6, 2021 by the intended amicus curiae is allowed.
  2. 2.The amici briefs attached to the application are deemed as filed and the applicants shall not make oral submissions at the hearing of the petitions.
  3. 3.Parties shall bear their own respective costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rules 3, 19(1) and (2), 31 and 50 of the Supreme Court Rules, 2020 and rules 8, 31 and 38 of the Supreme Court (General) Practice Directions, 2020

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The notice of motion dated October 1, 2021and lodged on October 6, 2021by the intended amicus curiae is allowed.
p. 5 Admission of amici curiae
The amici briefs attached to the application are deemed as filed and the applicants shall not make oral submissions at the hearing of the petitions.
p. 5 Scope of amicus participation
Parties shall bear their own respective costs.
p. 5 Costs order
An applicant for joinder as amicus has to satisfy this court that they have satisfied the legal requirements for joinder. The relevant law is rule 19 of the Supreme Court Rules 2020.
p. 4 Legal test for amicus curiae

Key timeline

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2020
Constitution of Kenya (Amendment) Bill 2020 introduced in Parliament.
2021-10-01
Prof Richard Albert and Prof Yaniv Roznai file application to join as amici curiae.
2021-10-06
Application lodged at the Supreme Court of Kenya.
Ruling date
Supreme Court allows the application, deems amici briefs filed, denies oral submissions.

Practical implications

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For lawyers

Amicus strategy: written briefs only

When applying as amicus curiae in the Supreme Court, expect the court to limit participation to written briefs. Focus your application on demonstrating expertise, neutrality, and novel legal arguments under Rule 19. Cite Trusted Society of Human Rights Alliance v Mumo Matemu to show you understand the guiding principles. Prepare a detailed brief upfront, as the court may deem it filed immediately.

For businesses

Track amicus briefs for legal shifts

If your business is affected by constitutional amendments (e.g., on taxation or regulation), monitor amicus briefs filed by experts. These briefs can influence how the court interprets the law. You cannot file an amicus brief yourself unless you meet strict criteria, but you can engage lawyers to track these submissions and advise on potential impacts on your operations or compliance obligations.

For individuals

Expert briefs allowed, no oral input

If you want to submit a friend-of-the-court brief in a Supreme Court case, you must prove you are an expert, neutral, and have no personal stake. The court will not let you make oral arguments. Your written brief must raise new legal points not already covered by the main parties. This ruling shows the court values expert input but keeps tight control over who participates.

Frequently asked questions

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What is an amicus curiae in Kenya's Supreme Court?+

An amicus curiae, or friend of the court, is a person or group not a party to a case who provides expert legal arguments to help the court decide. In Kenya, the Supreme Court allows amici only if they meet strict rules under Rule 19, including proven expertise, neutrality, and no personal interest in the outcome.

Can foreign professors be amici in Kenyan Supreme Court cases?+

Yes, as this ruling shows. The Supreme Court allowed two foreign law professors, Prof Richard Albert and Prof Yaniv Roznai, to file amicus briefs on constitutional amendments. The court found their expertise on the basic structure doctrine useful, even though they are not Kenyan, as long as they remain neutral and address novel legal points.

What is the basic structure doctrine in Kenya?+

The basic structure doctrine is a legal theory that certain core features of a constitution cannot be amended or removed, even by Parliament. In Kenya, this doctrine is being debated in cases about the Constitution of Kenya (Amendment) Bill 2020. The Supreme Court allowed amicus briefs on this topic to help clarify its scope and applicability.

How do I apply to be an amicus curiae in Kenya?+

You must file a formal application under Rule 19 of the Supreme Court Rules 2020. You need to show you have expertise on the legal issue, are independent and impartial, and have no financial interest in the case. Your brief must raise new legal points not already covered by the parties. The court may deny oral submissions, as happened here.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Attorney General v David Ndii & others; Albert & another (Amicus Curiae)", Case Analysis (2021). Petition E016 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/16/eng@2021-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.