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Supreme CourtAllowedReference 3 of 2020

County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) (Reference 3 of 2020)

Supreme Court of Kenya
25 January 2021
972 words in judgment
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AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Supreme Court has general discretion to allow an expert friend of the court to participate.

What this practically means

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The Supreme Court ruled on when an outside expert can join a case as a friend of the court. This privilege is granted only if the expert is neutral, has no personal interest in the outcome, and offers specialized knowledge that helps the judges. The Law Society of Kenya met this test and was allowed to file a written brief, but not to speak in court. The decision confirms courts can use outside experts to develop the law without favoring any side.

Executive summary

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This ruling concerns an application by the Law Society of Kenya (LSK) to be admitted as amicus curiae in a constitutional reference filed by the County Assemblies of Kericho and Nandi. The reference raises questions about the procedure for amending the Constitution under Article 257, including the meaning of 'approves' in Article 257(6), the proper parliamentary procedure for amendment bills, and whether referendum questions can be single or multiple. The Supreme Court, applying its earlier decisions in Muruatetu and Trusted Society, held that admission of an amicus is a discretionary privilege requiring the applicant to demonstrate neutrality, expertise, and no direct or indirect interest in the matter. The court found that the LSK, by virtue of its statutory mandate under the Law Society Act to assist courts and the public in legal matters, and its demonstrated expertise in constitutional matters, met these criteria. The court noted that the LSK's draft amicus brief showed no partiality and that its participation would assist the court in reaching a fair determination without prejudice to any party. Consequently, the court admitted the LSK as amicus curiae but limited its participation to filing a written brief, with no oral submissions, and ordered no costs. The ruling underscores the court's discretion in admitting amici curiae and the importance of such participation in developing 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 Law Society of Kenya meets the criteria for admission as amicus curiae in this reference

Key legal issues

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01

Whether the Law Society of Kenya should be admitted as amicus curiae in the reference.

Holding

The court admitted the LSK as amicus curiae, finding it had the requisite expertise, neutrality, and that its participation would assist the court without prejudice to any party.

Reasoning

The court applied the criteria from Muruatetu and Trusted Society, noting that the LSK is mandated under the Law Society Act to assist courts and the public in legal matters, has expertise in constitutional matters, and its draft amicus brief showed no partiality. The court also found no prejudice to any party and that the brief would assist in determining the reference's issues.

Legal principles established

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  • Being a friend of the court is a privilege, not a right, granted at the court's discretion.
  • The applicant must prove it is neutral and has no direct or indirect interest in the case.
  • Expertise in the legal area and a track record of impartiality are key requirements.
  • The court may admit a friend if this helps develop the law and serves the public interest.
  • The court can limit the friend's role to written submissions only, without oral arguments.
  • Costs are not awarded against a friend of the court allowed to participate.

Court orders

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  1. 1.The Law Society of Kenya is admitted as an amicus curiae.
  2. 2.It shall file and serve its amicus Brief, 7 days after responses are filed by all the Interested Parties.
  3. 3.The Law Society of Kenya’s participation shall be limited to the filing of the amicus Brief aforesaid and it shall not make oral submissions.
  4. 4.There shall be 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. MwiluCJ
Currently serving
majority

Wrote the judgment

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(4)(a) of the Constitution (implied by the nature of the reference as a constitutional reference under the Supreme Court's original jurisdiction)

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 Law Society of Kenya is admitted as an amicus curiae.
p. 5 Admission of amicus curiae
It shall file and serve its amicus Brief, 7 days after responses are filed by all the Interested Parties.
p. 5 Filing timeline for amicus brief
The Law Society of Kenya’s participation shall be limited to the filing of the amicus Brief aforesaid and it shall not make oral submissions.
p. 5 Scope of amicus participation
There shall be no orders as to costs.
p. 5 Costs order
such admission is a matter of discretion and a privilege granted to an intended amicus. Further, that such an amicus must show that it is neutral and should have no discernible direct or indirect interest in the matter.
p. 4 Criteria for amicus curiae admission

Key timeline

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Application filed
Law Society of Kenya applies to be admitted as amicus curiae in a constitutional reference by Kericho and Nandi County Assemblies.
Ruling date not specified
Supreme Court admits the LSK as amicus curiae, limited to filing a written brief.

Practical implications

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For lawyers

Strategic use of amicus briefs

When representing a client, consider whether a neutral expert organization like the LSK can strengthen your case by providing specialized insight on constitutional interpretation. Ensure the proposed amicus has no stake in the outcome and can draft a brief that assists the court without repeating party arguments.

For businesses

No direct business impact here

This ruling does not change business obligations or rights. However, companies involved in constitutional litigation affecting their sector may coordinate with industry bodies to seek amicus status, provided the body maintains neutrality and offers unique expertise to the court.

For individuals

Friend of court helps fair rulings

If you are part of a case affecting public interest, you cannot be a friend of the court yourself unless you are truly neutral. But such experts can help judges decide more fairly by explaining complex legal issues, especially in high-stakes constitutional matters like the one here involving the constitutional amendment process.

Frequently asked questions

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What is an amicus curiae in Kenya?+

An amicus curiae, or friend of the court, is a person or organization with special expertise who helps a judge decide a case. They must be neutral and have no personal interest. In Kenya, the Supreme Court decides whether to allow them and can limit their role to filing written arguments only.

Who can be an amicus curiae in Kenya Supreme Court?+

Any neutral expert organization or individual can apply. They must show they have no direct or indirect interest in the case and can assist the court with specialized knowledge. The Law Society of Kenya qualified because its legal mandate includes helping courts, and it showed expertise on constitutional issues.

Does the Supreme Court always allow amicus curiae in Kenya?+

No. Admission is a privilege granted at the court's discretion. The court carefully checks that the applicant is neutral, has no stake in the outcome, and offers useful expertise. Even if admitted, the court can restrict participation to written submissions without oral argument, as happened here.

What was the case County Assembly of Kericho v Attorney General about in Kenya?+

The case involves a constitutional challenge by two county assemblies about how to amend Kenya's Constitution under Article 257. They dispute the meaning of 'approves' in Parliament, the correct parliamentary procedure for amendment bills, and whether referendum questions can be single or multiple. The Supreme Court has not yet decided the main issues.

Cite this brief

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Cite this brief

Caselaw, "County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) (Reference 3 of 2020)", Case Analysis (2021). Reference 3 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/66/eng@2021-01-25

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