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Court of AppealDismissedCivil Appeal (Nairobi)· [2017] KECA 478 (KLR)

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)

Court of Appeal
9 June 2017
3,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal (Gatembu, JA, writing the lead opinion; Musinga and Murgor, JJA concurring) dismissed Katiba Institute's appeal against the High Court's refusal to admit it as amicus curiae in a petition by the Judicial Service Commission challenging parliamentary proceedings for the removal of JSC members. The central question was whether 'partisanship' is a proper criterion for declining amicus admission. The Court held that Article 22(3) of the Constitution and Rule 2 of the Mutunga Rules require an amicus to demonstrate expertise, independence and impartiality, and that Supreme Court precedent in Raila Odinga v IEBC and Trusted Society v Mumo Matemu settles partisanship as a relevant consideration in adversarial proceedings. It rejected the submission that those pronouncements were confined to the context of a contested election petition, holding them to be of general application. The Court declined to rule on the appellant's argument that the two-judge Mumo Matemu decision is not binding under Article 163(7), because that issue was live in a pending Supreme Court matter. On whether the appellant was in fact partisan, the Court found the question moot: the petition had been heard and determined, no appeal lay from the substantive decision, and no stay was in place, so any ruling would have no practical effect. The rejection rested on the particular circumstances, namely the appellant's published views on the litigation, and did not bar future amicus applications. The appeal was dismissed with each party bearing its own costs, expressly in view of the public interest element.

Key legal issues

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01

Whether partisanship is a proper criterion for refusing amicus curiae admission

Holding

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.

Reasoning

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.

p. 6
02

Whether the question whether the appellant was in fact partisan was justiciable

Holding

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.

Reasoning

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.

p. 7
03

Whether the Court should disregard the Trusted Society v Mumo Matemu decision as rendered by an improperly constituted Supreme Court

Holding

The Court declined to address that issue because it is live in a pending matter before the Supreme Court.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 22(3)
  • Constitution of Kenya, 2010Article 163(2)
  • Constitution of Kenya, 2010Article 163(3)(7)
  • Constitution of Kenya, 2010Article 163(7)
  • Constitution of Kenya, 2010Article 251(4)
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 2

Cases cited (6)

  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2014] eKLR; also cited as [2015] eKLR
  • Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others
    [2013] eKLR
  • MEC for Education; Kwazulu-Natal and others v Navaneethum Pillay and others
    CCT 51/06
  • Mbogo and Another v Shah
    [1968] EA 93
  • Francis Karioki Muruatetu & another v Republic & 5 others
    [2016] eKLR
  • Republic v The Tribunal of Inquiry to Investigate the Conduct of Puisne Judge Tom Mbaluto
    [2013] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.