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Supreme CourtAllowedPetition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated)

Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae)

Supreme Court of Kenya
30 August 2024
1,219 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Expert allowed to file legal brief but cannot speak in court.

What this practically means

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The Supreme Court of Kenya allowed Dr. Gautam Bhatia, a constitutional law expert, to submit a written legal brief as a friend of the court. He must remain neutral and cannot make oral arguments. The court found his expertise helpful for the case, which involves public participation in lawmaking. No party opposed his request, and no costs were awarded.

Executive summary

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This is a ruling on an application by Dr. Gautam Bhatia, a comparative constitutional law expert, seeking leave to be admitted as amicus curiae in a consolidated appeal before the Supreme Court of Kenya. The application was unopposed by any party. The court considered the applicant's affidavit and submissions, which demonstrated his expertise in comparative constitutional law, his previous admission as amicus curiae in the BBI Case, and his scholarly work. The court applied the criteria set out in Rule 19 of the Supreme Court Rules 2020 and the guiding principles from Trusted Society of Human Rights Alliance v Mumo Matemu, finding that the applicant had proven expertise, independence, and impartiality, and that the proposed amicus brief addressed germane points of law relevant to the appeal. The court allowed the application, deemed the amicus brief as filed, but directed that the applicant shall not make oral submissions at the hearing. No order as to costs was made. The ruling underscores the court's discretion in admitting amici curiae to assist in resolving complex legal issues, particularly those involving public participation in the legislative process.

Questions the Court framed

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

  1. 1.Whether the applicant has satisfied the legal requirements for admission as amicus curiae under Rule 19 of the Supreme Court Rules 2020
  2. 2.Whether the proposed amicus brief will assist the court in addressing the issues in the consolidated appeal

Key legal issues

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01

Whether the applicant met the criteria for admission as amicus curiae under Rule 19 of the Supreme Court Rules 2020.

Holding

The court found that the applicant demonstrated proven expertise in comparative constitutional law, independence and impartiality, and that the proposed brief addressed germane points of law resonating with the issues in the appeal, thus meeting the criteria.

Reasoning

The court considered the applicant's affidavit and submissions showing his expertise in comparative constitutional law, his previous admission as amicus curiae in the BBI Case, and his scholarly work. The court noted that the proposed brief addressed specific legal issues on public participation that were relevant to the appeal. No party opposed the application, and the court found no bias. Therefore, the court concluded that the applicant satisfied the criteria set out in Mumo Matemu.

Legal principles established

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  • An amicus curiae must show proven expertise, independence, and impartiality.
  • The amicus brief must be limited to legal arguments and filed on time.
  • The amicus cannot address points already covered by the parties.
  • The court has discretion to allow or limit an amicus's participation.
  • An unopposed motion for amicus status does not guarantee automatic approval.

Court orders

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  1. 1.The applicant's notice of motion dated and filed on August 22, 2024 by the intended amicus curiae is allowed.
  2. 2.The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
  3. 3.As the motion was not opposed, we make no orders as to costs.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
I. Lenaola W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 19 of the Supreme Court Rules 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 applicant's notice of motion dated and filed on August 22, 2024 by the intended amicus curiae is allowed.
p. 7 Admission of amicus curiae
The amicus brief attached to the application is deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
p. 7 Orders on amicus participation
As the motion was not opposed, we make no orders as to costs.
p. 7 Costs order
An applicant seeking to be enjoined as amicus curiae has to satisfy this Court that he or she has satisfied the legal requirements for such an application.
p. 6 Legal requirements for amicus curiae
The role of an amicus curiae in any proceedings is to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty
p. 6 Role of amicus curiae

Key timeline

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2024-08-22
Dr. Bhatia filed notice of motion to be admitted as amicus curiae.
2024-09-12
Supreme Court ruling allowed the motion, deemed brief filed, but barred oral submissions.

Practical implications

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For lawyers

Limit amicus to written briefs

When applying as amicus curiae in the Supreme Court, expect the court to restrict your role to written submissions only. Prepare a comprehensive brief that covers new legal points, as oral arguments may be denied. Ensure your application demonstrates neutrality and expertise under Rule 19 of the Supreme Court Rules 2020.

For businesses

Monitor public participation cases

This case involves public participation in lawmaking, which can affect business regulations. The amicus brief may influence how courts interpret public participation requirements. Stay informed about the outcome, as it could set standards for future legislative processes that impact your operations.

For individuals

Know your right to be heard

The court allowed an expert to help decide on public participation, a key constitutional right. This shows that courts value informed input on how laws are made. If you feel your voice was ignored in a lawmaking process, this case may strengthen arguments for better public involvement.

Frequently asked questions

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What is an amicus curiae in Kenya?+

An amicus curiae, or 'friend of the court,' is a neutral expert who helps the court by providing legal arguments on complex issues. In Kenya, they must show expertise and impartiality, as per the Supreme Court Rules 2020.

Can an amicus curiae speak in court in Kenya?+

Not always. In this case, the Supreme Court allowed the amicus to file a written brief but barred oral submissions. The court decides the scope of participation based on the case's needs.

What is public participation in Kenya?+

Public participation is a constitutional requirement that allows citizens to have a say in lawmaking. This case involves how courts ensure that process is meaningful, which can affect future legislation.

How does the Supreme Court decide amicus applications in Kenya?+

The court applies Rule 19 of the Supreme Court Rules 2020 and principles from the Mumo Matemu case. The applicant must prove expertise, independence, and that the brief addresses new legal points. Unopposed motions are not automatically granted.

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, "Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae)", Case Analysis (2024). Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/55/eng@2024-08-30

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