Katiba Institute v Judicial Service Commission, Speaker of the National Assembly, Attorney General, Aaron Gitonga Ringera, Jennifer Shamallah, Ambrose Otieno Weda, Mutua Kilaka, Commission on Administrative Justice & Law Society of Kenya (Civil Appeal 343 of 2014) [2017] KECA 478 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts may refuse a 'friend of the court' applicant if partisanship is suspected, but timing matters most.
What this practically means
#Executive summary
#Key legal issues
#Whether partisanship is a proper criterion for refusing amicus curiae admission
Yes - partisanship is a settled and relevant consideration in adversarial proceedings, per the Supreme Court in Raila Odinga and Trusted Society v Mumo Matemu; it entails an inquiry whether the applicant is biased, partial or prejudiced.
Article 22(3) and Rule 2 of the Mutunga Rules require an amicus to be an independent and impartial expert. The Supreme Court in Raila Odinga held that allegations of bias or partisanship against a proposed amicus must be considered seriously, and it reaffirmed this in Trusted Society v Mumo Matemu. Although those pronouncements were made in a contested election petition, they are of general application in adversarial proceedings.
Whether the question whether the appellant was in fact partisan was justiciable
No - that question was moot because the petition had been heard and determined, there was no appeal from the substantive decision and no stay; any holding would have no practical effect.
The substantive petition was finally determined by the High Court and no appeal was lodged against that decision nor was it stayed. Even if the Court found partisanship unproven, the appellant would never participate in the case as amicus and the decision would serve no useful purpose. The rejection was based on the particular circumstances of the case, namely the appellant's publications, and did not bar future applications.
Whether the Court should disregard the Trusted Society v Mumo Matemu decision as rendered by an improperly constituted Supreme Court
The Court declined to address that issue because it is live in a pending matter before the Supreme Court.
Counsel invited the Court to hold that a two-judge Supreme Court decision is not a binding 'decision' under Article 163(3)(7) and not properly constituted under Article 163(2). The Court declined the invitation since a matter in which that issue arises is pending before the Supreme Court.
Legal principles established
#- The requirements a person seeking leave to appear as amicus curiae must meet are expertise, independence and impartiality.
- Partisanship is a relevant consideration when considering an application to admit amicus curiae in adversarial proceedings, as settled by the Supreme Court.
- An appellate court will not interfere with the exercise of judicial discretion unless the decision is clearly wrong because of misdirection, consideration of irrelevant matters, or failure to consider relevant matters.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya, Constitutional & Human Rights Division at Nairobi
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution (appeal against refusal of leave to be admitted as amicus curiae in a Bill of Rights petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katiba Institute v Judicial Service Commission, Speaker of the National Assembly, Attorney General, Aaron Gitonga Ringera, Jennifer Shamallah, Ambrose Otieno Weda, Mutua Kilaka, Commission on Administrative Justice & Law Society of Kenya (Civil Appeal 343 of 2014) [2017] KECA 478 (KLR)", Case Analysis (2017). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/478/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.