Initiative For Strategic Litigation In Africa (isla) v Federation of Women Lawyers Kenya (fida Kenya) & 1 other
The bottom line
#Kenya's Court of Appeal allowed an expert women's rights organisation to join a key matrimonial property case as a 'friend of the court' — free of charge to any party.
What this practically means
#Executive summary
#Key legal issues
#Whether ISLA meets the criteria for admission as amicus curiae in the appeal
The applicant qualifies: it has regional and international expertise in women's property rights, is independent and impartial, has no personal interest in the outcome, and its input will assist the court on a matter of great public importance.
The court applied the criteria in Trusted Society of Human Rights Alliance v Mumo Matemo, requiring expertise, independence and impartiality, and public importance of the issues. The applicant's work on women's property rights and its prior admission as amicus in the underlying petition demonstrated its value. Its submissions are confined by court direction to defined areas, preserving its non-party, neutral character.
The constitutional foundation for admitting friends of the court
Articles 20(3)(a) and 259(1) of the Constitution mandate courts to develop the law, and the Mutunga Rules define a friend of the court as an independent and impartial expert whose expertise benefits the court.
The court grounded its jurisdiction to admit amici in the constitutional duty to develop law to give effect to rights, reinforced by the interpretive mandate of Article 259(1) which permits the development of the law. The Mutunga Rules supply the procedural framework, defining a friend of the court as an independent, impartial, non-party expert.
Legal principles established
#- The admission of an amicus curiae rests on the constitutional mandate that courts develop the law, justifying well-informed expert inputs before the court, subject to limitation of the amicus brief to the issues on which the expert assistance is required.
Court orders
#- 1.The Notice of Motion dated 23rd November 2018 is allowed and the applicant is admitted as amicus curiae to the proceedings
- 2.The amicus brief is limited to addressing the court on regional and international law on distribution of matrimonial property upon dissolution of marriage; comparative jurisprudence on distribution of matrimonial property; relevant law reform initiatives in comparable jurisdictions; and judicial pronouncements that have had retrospective effect to the property rights of women
- 3.No orders as to costs, the matter being a public interest matter
- On appeal from
- High Court of Kenya
- Petition No. 164B of 2018
- Jurisdiction invoked
- Article 22(3)(e) of the Constitution and rules 2 and 6 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Initiative For Strategic Litigation In Africa (isla) v Federation of Women Lawyers Kenya (fida Kenya) & 1 other", Case Analysis (2024). Not stated in the judgment (application arising from Petition No. 164B of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/181/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.