Attorney General & 3 others v PAK & another; Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) & 2 others (Intended Amicus Curiae) (Civil Appeal (Application) E030 of 2022) [2025] KECA 44 (KLR)
The bottom line
#The Court of Appeal allowed KELIN, FIDA and others to join a key reproductive rights appeal as friends of the court, but only to file written legal briefs, not evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether KELIN, WLW and FIDA Kenya should be granted leave to be joined as joint amici curiae in the appeal, to file a joint amici brief, and to submit information and/or evidence
- 2.Whether the Law Society of Kenya should be granted similar leave under its application dated 30th June 2024
- 3.If leave is granted, the extent of the amici's participation
Key legal issues
#Criteria for admission of amici curiae in a pending appeal
The Supreme Court guidelines in Trusted Society of Human Rights Alliance v. Mumo Matemo govern; the applicants, having demonstrated extensive experience in health-related rights and no prejudice or bias to the parties, qualified for admission.
The Court applied the Mumo Matemo guidelines: neutrality and fidelity to the law; briefs limited to legal argument; novelty of legal points; court regulation of participation; demonstrated assistance and expertise. The applicants' affidavits showed health-rights expertise; the appeal concerned public interest in reproductive health services; no party demonstrated prejudice or lack of neutrality.
Scope of amicus participation once leave is granted
Participation is confined to filing an amici brief on the issues in the appeal; the prayer to submit information and/or evidence was declined, and the hearing bench controls the extent of oral participation.
The Court tailored the relief, granting leave only to file written submissions by way of amici brief confined to the appeal issues, deferring questions of oral audience to the hearing bench, and expressly refusing the evidential prayer to avoid prejudicing the parties.
Legal principles established
#- An amicus brief must be limited to legal arguments, introduce novel points of law not already addressed by the parties or other amici, and the applicant must demonstrate relevant expertise and assistance to the Court; party consent is not the determining factor and the Court regulates the extent of amicus participation.
- Leave granted to an amicus at the interlocutory stage does not guarantee a right to address the Court; the hearing bench retains discretion over the extent of amicus participation.
Court orders
#- 1.Applications dated 31st May 2024 and 30th June 2024 allowed to the extent that the applicants are at liberty to file submissions by way of amici brief confined only to the issues in the appeal
- 2.The bench that will hear the appeal shall determine whether, and the extent to which, the amici may address the Court
- 3.Prayer to submit any information and/or evidence declined
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- Not stated in the judgment
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal over a pending appeal; guided by Supreme Court amicus curiae guidelines in Trusted Society of Human Rights Alliance v. Mumo Matemo
Relief refused
#Admission as amici with liberty to submit any information and/or evidence they deem fit
Leave limited to filing an amici brief confined to the issues in the appeal; the evidential prayer was expressly declined
Costs
There will be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I allow the applications dated 31st May 2024 and 30th June 2024 to the extent, and extent only, that the applicants are at liberty to file submissions by way of amici brief confined only to the issues in the appeal
The bench that will hear the appeal shall determine whether, and the extent to which, the amici may address the Court.
For the avoidance of doubt the prayer for the amici curiae “to submit any information and/or evidence it may deem fit” is declined.
There will be no order as to costs.
whereas consent of the parties, to proposed amicus role, is a factor to be taken into consideration, it is not the determining factor
Issues in the judgment
#The memorandum of appeal as summarised describes the appeal as against the holding that abortion is a fundamental right, yet the named 1st respondent (PAK) appears in the ruling as a respondent to the appeal while the applicants seek to support the respondents; the precise alignment of parties in the main appeal is not fully set out in this ruling.
The judgment does not state the case number of the appeal or the applications, and the decision is rendered by a single Judge of Appeal rather than a full bench.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & 3 others v PAK & another; Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) & 2 others (Intended Amicus Curiae) (Civil Appeal (Application) E030 of 2022) [2025] KECA 44 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/44/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.