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Supreme CourtPartially AllowedPetition (Application) 11 of 2020

JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae)

Supreme Court of Kenya
16 July 2021
2,577 words in judgment
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The bottom line

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Court can admit a party as amicus curiae even if they don't qualify as an interested party.

What this practically means

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The Supreme Court of Kenya ruled on who can join a case as an interested party or friend of the court. To be an interested party, you must show a personal stake in the matter, that you will suffer harm if left out, and that your arguments are not just repeating what others will say. The court can still let you participate as a friend of the court (amicus curiae) in public-interest cases, even if you don't meet the strict interested-party test. This is a privilege, not a right, and the court limits participation to avoid overcrowding.

Executive summary

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This judgment concerns three applications for enjoinment in a Supreme Court petition. The Federation of Women Lawyers (FIDA Kenya) sought to be enjoined as an interested party, while the Law Society of Kenya (LSK) and a consortium of KELIN, ISLA, and HRW sought to be enjoined as amici curiae. The appellant opposed FIDA Kenya's application and the consortium's application but did not oppose LSK's application. The court applied the principles from the Muruatetu case, which require an interested party to demonstrate a personal stake, prejudice from non-joinder, and that their submissions are not a replication of the parties' submissions. The court found that FIDA Kenya did not meet these criteria for enjoinment as an interested party. However, in the exercise of its discretion and given the public-interest nature of the matter, the court admitted FIDA Kenya as the 1st amicus curiae, relying on its inherent power as recognized in the Muruatetu case. The court admitted LSK as the 2nd amicus curiae, noting its mandate to assist courts and its intention to submit on Article 45(3) of the Constitution. The court dismissed the application by KELIN, ISLA, and HRW, finding that they did not demonstrate how their admission was crucial to the matter and being wary of crowding the primary parties. The court ordered that participation by the enjoined parties be limited to filing written submissions and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the Federation of Women Lawyers (FIDA Kenya) should be enjoined as an interested party.
  2. 2.Whether the Law Society of Kenya (LSK) should be enjoined as amicus curiae.
  3. 3.Whether KELIN, ISLA, and HRW should be enjoined as amici curiae.

Key legal issues

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01

Whether FIDA Kenya met the criteria for enjoinment as an interested party under Rule 24 of the Supreme Court Rules, 2020.

Holding

FIDA Kenya did not meet the criteria because they failed to demonstrate a personal stake, prejudice, or that their submissions were not a replication of the parties' submissions.

Reasoning

The court applied the principles from the Muruatetu case, which require an interested party to show a personal interest, prejudice from non-joinder, and that their submissions are not a replication. FIDA Kenya's application did not satisfy these elements, as they only argued ongoing matrimonial property cases and did not show how their submissions would differ from the principal parties.

02

Whether the court can enjoin a party in a capacity different from that which they sought.

Holding

The court can, in its discretion and in unique public-interest matters, enjoin a party that sought enjoinment as an interested party in the capacity of amicus curiae.

Reasoning

The court relied on its decision in the Muruatetu case, where it admitted an intended interested party as amicus curiae due to the unique and public-interest nature of the matter. The court found that FIDA Kenya's submissions were more suited to the role of amicus curiae and would bring additional material on the subject of the petition.

03

Whether KELIN, ISLA, and HRW met the criteria for enjoinment as amici curiae under Rule 19 of the Supreme Court Rules, 2020.

Holding

They did not meet the criteria because their expertise was not shown to be crucial to the matter, and the court was wary of crowding the primary parties.

Reasoning

The court considered the principles from Mumo Matemu and Muruatetu, which require proven expertise, independence, impartiality, and public interest. The court found that while the applicants claimed expertise in women's, land, and property rights, they did not demonstrate how their admission was crucial to the specific issues in the petition. The court also noted that they could liaise with admitted amici curiae.

Legal principles established

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  • An interested party must show a clear, personal stake in the case and harm if not joined.
  • An interested party's submissions must not simply repeat what other parties will argue.
  • The court can, in its discretion, admit a party as amicus curiae even if they sought to be an interested party.
  • Admission as amicus curiae is a privilege, not a right, and the court guards against diverting proceedings.
  • A proposed amicus curiae must prove their expertise is crucial to the specific issues in the case.
  • The court may deny joinder to avoid crowding the primary parties in the case.

Court orders

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  1. 1.The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) is partly disallowed to the extent that they seek to be enjoined as interested party.
  2. 2.The Federation of Women Lawyers (FIDA Kenya), the intended interested party is hereby enjoined as 1st amicus curiae.
  3. 3.The application by the Law Society of Kenya is allowed and the applicant is hereby admitted as the 2nd amicus curiae.
  4. 4.The application by KELIN, ISLA and HRW as intended amici curiae is dismissed.
  5. 5.Participation by the enjoined parties shall be limited to the filing of written submissions.
  6. 6.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. 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
Rule 24 and 31 of the Supreme Court Rules, 2020

Relief refused

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Enjoinment of Federation of Women Lawyers (FIDA Kenya) as an interested party

They do not qualify in line with the criteria set out in the Supreme Court Rules, 2020 and the principles previously laid with relation to admission of interested parties.

Enjoinment of KELIN, ISLA, and HRW as amici curiae

The court did not see how their admission is crucial to the matter at hand and was wary of crowding the primary parties.

Costs

There shall be 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.

The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) is partly disallowed to the extent that they seek to be enjoined as interested party.
p. 8 Disposition of FIDA Kenya's application
The Federation of Women Lawyers (FIDA Kenya), the intended interested party is hereby enjoined as 1st amicus curiae.
p. 8 Enjoinment of FIDA Kenya as amicus curiae
The application by the Law Society of Kenya is allowed and the applicant is hereby admitted as the 2nd amicus curiae.
p. 8 Admission of Law Society of Kenya as amicus curiae
The application by KELIN, ISLA and HRW as intended amici curiae is dismissed.
p. 8 Dismissal of KELIN, ISLA, and HRW's application
There shall be no Orders as to costs.
p. 8 Costs order
An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio.
p. 6 Definition of interested party
an amicus is only interested in the court making a decision of professional integrity.
p. 6 Definition of amicus curiae

Key timeline

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2014
Supreme Court of Kenya delivers judgment on applications to join a family law petition.
Before 2014
FIDA Kenya, LSK, KELIN, ISLA, and HRW file applications to be enjoined in the petition.
2014
Court partly allows FIDA Kenya's application, admitting them as amicus curiae instead of interested party.
2014
Court allows LSK's application to join as amicus curiae.
2014
Court dismisses application by KELIN, ISLA, and HRW to join as amici curiae.

Practical implications

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For lawyers

Drafting joinder applications carefully

When applying to join a case as an interested party, clearly state your personal stake, the specific prejudice you will suffer if not joined, and how your submissions differ from the main parties. If you cannot meet this test, consider applying as amicus curiae instead, but be prepared to show your expertise is crucial to the case. The court may convert your application, but it's not guaranteed.

For businesses

Joining public-interest litigation

If your business wants to participate in a public-interest case, you must show a direct and identifiable interest in the outcome, not just a general concern. For example, if a case affects your industry's regulations, you may qualify as an interested party. Otherwise, you might be admitted as a friend of the court, but only if your expertise is essential and you don't duplicate existing arguments.

For individuals

Your rights to join a court case

If you want to join a case that affects you personally, you must prove you have a direct stake in the outcome and that you will be harmed if you are not included. Simply having a general interest or similar experiences is not enough. The court may still let you participate as a friend of the court in special public-interest cases, but this is at the court's discretion and not a guaranteed right.

Frequently asked questions

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What is the difference between an interested party and amicus curiae in Kenya?+

An interested party has a direct personal stake in the case and will be affected by the outcome. An amicus curiae (friend of the court) provides expert assistance to the court but has no personal interest. In Kenya, the Supreme Court requires interested parties to show a clear interest, prejudice, and unique submissions, while amici curiae must prove their expertise is crucial.

Can I join a Supreme Court case in Kenya as an interested party?+

Yes, but you must meet strict criteria: show a personal and proximate interest in the matter, demonstrate you will suffer prejudice if not joined, and prove your submissions are not just repeating what other parties will say. If you don't meet these, the court may still admit you as amicus curiae in public-interest cases, but this is a privilege, not a right.

What is the Muruatetu case and how does it affect joinder in Kenya?+

The Muruatetu case is a landmark Supreme Court decision that set the rules for joining cases as interested parties or amici curiae. It requires interested parties to show a personal stake, prejudice, and unique arguments. The FIDA Kenya case applied these principles, allowing the court to convert an interested party application to amicus curiae in public-interest matters.

How does the court decide who can be amicus curiae in Kenya?+

The court considers whether the applicant has proven expertise that is crucial to the specific issues in the case, independence, and impartiality. It also guards against overcrowding the primary parties. Admission is a privilege, not a right, and the court may limit participation to written submissions only, as seen in the FIDA Kenya case.

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, "JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae)", Case Analysis (2021). Petition (Application) 11 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/48/eng@2021-07-16

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