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Case Brief · caselaw.co.ke
Supreme CourtOtherReference E001 of 2025

Commission on Administrative Justice v Kisumu County Government & 2 others

Supreme Court of Kenya
15 August 2025
1,594 words in judgment
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AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Supreme Court: oral applications not allowed; respondents not recognized in advisory opinion references.

What this practically means

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The Supreme Court of Kenya ruled that you cannot make oral requests to add participants to an advisory opinion case. All applications must be in writing and filed properly. Also, parties called 'respondents' do not exist in these types of cases. If you want to join as a friend of the court, you must file a formal application showing your expertise and impartiality.

Executive summary

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This ruling by the Supreme Court of Kenya (a five-judge bench) addresses procedural issues arising from a Reference filed by the Commission on Administrative Justice (CAJ) seeking an advisory opinion under Article 163(6) of the Constitution. The CAJ had orally proposed, during directions before the Deputy Registrar, that the Law Society of Kenya and Katiba Institute be admitted as participants or interveners in the reference. The court dismissed this oral application, holding that all applications to the Supreme Court must ordinarily be made in writing and filed under the relevant rules; oral applications are only permitted in limited circumstances, mostly in open court where a formal written ruling may not be required. The court further held that a proposal to admit a participant under rule 51 of the Supreme Court Rules, 2020 must be by a formal application disclosing the purpose, with the intended participant served and indicating willingness to participate. Additionally, the court struck off the 1st, 2nd and 3rd respondents (Kisumu County Government, Mombasa County Government, and the Judicial Service Commission) from the reference, noting that 'respondents' are not known in the nomenclature of advisory opinion references under the rules, and rule 51(5) prohibits joinder of interested parties. The court emphasized that persons with proven expertise may apply to be joined as amicus curiae under rule 19, but must satisfy the court of their expertise, independence, impartiality, and public interest. No order as to costs was made.

Questions the Court framed

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

  1. 1.Whether the oral application to admit the Law Society of Kenya and Katiba Institute as participants/interveners in the reference should be allowed
  2. 2.Whether the 1st, 2nd and 3rd respondents should be struck off from the reference

Key legal issues

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01

Whether an oral application to admit participants/interveners in a reference is permissible

Holding

Oral applications are not permissible for such purposes; a formal written application is required.

Reasoning

The court held that all applications to the Supreme Court must ordinarily be made in writing and filed under the relevant rules. Oral applications are only allowed in limited circumstances, mostly in open court where a formal written ruling may not be required. Since the applicant made an oral proposal without a formal application, it was dismissed.

02

Whether the Law Society of Kenya and Katiba Institute should be admitted as participants/interveners in the reference

Holding

The proposal was dismissed because it was made orally and without a clear demonstration of how the proposed participants' mandates relate to the issues in the reference.

Reasoning

The court noted that the applicant's proposal was bare and did not juxtapose the mandates of the two agencies with the issues in the reference. Additionally, the guiding principles for admission of amici curiae require a formal application showing expertise, independence, impartiality, and neutrality. The oral proposal did not meet these requirements.

03

Whether the 1st, 2nd and 3rd respondents should be struck off from the reference

Holding

The respondents were struck off because 'respondents' are not known in the nomenclature of advisory opinion references under the Supreme Court Rules.

Reasoning

The court observed that rule 51 of the Supreme Court Rules, 2020 does not envisage parties called respondents in references. Advisory opinion references are not ordinary civil or adversarial proceedings, and rule 51(5) prohibits applications for joinder of interested parties. Therefore, the named respondents were struck off.

Legal principles established

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  • All applications to the Supreme Court must be in writing and filed under the rules; oral applications are only allowed in very limited circumstances.
  • In advisory opinion references, there are no 'respondents' – that term is not used under the Supreme Court Rules.
  • To add a participant to a reference, you must file a formal application explaining the purpose and serve the intended participant.
  • A person with proven expertise may apply to join as amicus curiae, but must show independence, impartiality, and public interest.
  • Rule 51(5) of the Supreme Court Rules prohibits applications for joinder of interested parties in references.
  • A bare oral proposal without linking the proposed participant's mandate to the case issues will not succeed.

Court orders

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  1. 1.The applicant’s oral proposal to admit the Law Society of Kenya and Katiba Institute as participants/interveners in the reference dated March 12, 2025 and filed on March 17, 2025 is hereby dismissed
  2. 2.The 1st, 2nd and 3rd respondents are hereby struck-off from the reference
  3. 3.We make no orders as to 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
majority
Smokin Charles Wanjala
S.C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution

Relief refused

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Admission of Law Society of Kenya and Katiba Institute as participants/interveners

The oral application was not made in writing as required; the proposal was bare and without a clear juxtaposition of the mandates of the two agencies with the issues in the Reference

Costs

We make no orders as to costs

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.

Ordinarily, all applications to this court ought to be made in writing and filed under the relevant rules of the court. Oral applications may only be made in limited circumstances and mostly in open court and where a formal written, reasoned ruling of the court supported by the law and authorities may not be required.
p. 4 Civil Procedure - Applications to the Supreme Court
parties called respondents are not known to the nomenclature of references in as far as the rules of this court is concerned
p. 5 Advisory Opinion - Parties in References
The applicant’s oral proposal to admit the Law Society of Kenya and Katiba Institute as participants/interveners in the reference dated March 12, 2025 and filed on March 17, 2025 is hereby dismissed
p. 6 Final Orders - Dismissal of Oral Application
The 1st, 2nd and 3rd respondents are hereby struck- off from the reference
p. 6 Final Orders - Striking Out Respondents
We make no orders as to costs.
p. 6 Costs Order

Key timeline

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March 12, 2025
Commission on Administrative Justice files a reference seeking an advisory opinion under Article 163(6) of the Constitution.
2025
Supreme Court dismisses oral proposal to admit Law Society of Kenya and Katiba Institute, and strikes off named respondents.

Practical implications

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For lawyers

File written applications only

Never make oral applications to add parties or interveners in Supreme Court references. Always file a formal written application under the relevant rules. If you want to bring in an amicus curiae, prepare a detailed application showing their expertise, independence, and how they relate to the issues. This ruling confirms strict procedural compliance is required.

For businesses

Know reference procedure

If your business is involved in a constitutional reference before the Supreme Court, understand that you cannot be named as a 'respondent' – that label does not apply. To participate, you must apply formally as an amicus curiae or interested party, following the written application process. Oral requests will be dismissed immediately.

For individuals

No shortcuts in court

If you want to join a Supreme Court case that seeks an advisory opinion, you cannot simply ask in court orally. You must file a written application explaining why you should be allowed to participate. The court will also check that you are independent and have relevant expertise. This ensures the process is fair and orderly.

Frequently asked questions

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Can I make an oral application in the Supreme Court of Kenya?+

Generally no. The Supreme Court requires all applications to be in writing and filed under the rules. Oral applications are only allowed in very limited circumstances, usually in open court where a formal written ruling is not needed. This ruling confirms that oral proposals to add participants are not permitted.

What is an advisory opinion reference in Kenya?+

An advisory opinion reference is a request to the Supreme Court for its opinion on a constitutional matter, under Article 163(6) of the Constitution. It is not a normal adversarial case. The court's rules for references are different – for example, there are no 'respondents' and joinder of interested parties is prohibited.

Who can be a respondent in a Supreme Court reference in Kenya?+

No one. The Supreme Court Rules do not recognize 'respondents' in advisory opinion references. If you are named as a respondent in such a case, the court will strike you off. To participate, you must apply formally as an amicus curiae or interested party, following the written application process.

How do I join as an amicus curiae in the Kenya Supreme Court?+

You must file a formal written application showing your proven expertise on the subject, your independence and impartiality, and that your participation serves the public interest. The application should explain how your mandate relates to the issues in the case. Oral requests will be dismissed.

Cite this brief

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Cite this brief

Caselaw, "Commission on Administrative Justice v Kisumu County Government & 2 others", Case Analysis (2025). Reference E001 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/51/eng@2025-08-15

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