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ELCPartially AllowedNotice of Motion dated 12/09/2024 in Petition (ELC Kitale)· [2024] KEELC 7017 (KLR)

JE & 42 others (Being Minors Suing Through Their Next Friend Legal Advise Centre t/a Kituo Cha Sheria)) v Tullow Kenya B.V. & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Constitutional Petition E001 of 2024) [2024] KEELC 7017 (KLR)

Environment and Land Court
22 October 2024
6,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed two human rights NGOs to join a Tullow Oil case as neutral legal experts, but strictly limited their role.

What this practically means

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Executive summary

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By a Notice of Motion dated 12/09/2024, KELIN and ISLA sought to be admitted as joint amici curiae in a Petition challenging the social and environmental impacts of oil exploration and drilling in the South Turkana Basin, brought under Article 22(3)(e) of the Constitution and Rules 2 and 6 of the Mutunga Rules. The Applicants, human rights NGOs with expertise in women's socio-economic rights and extractives, proposed to file a joint amicus brief on the gendered impacts of extractive industries and the nature of state obligations to eliminate discrimination against women, confining themselves to legal arguments without adducing evidence or participating in interlocutory applications. The 1st Respondent opposed, arguing the Applicants were biased and partisan, lacked exceptional expertise, and intended to introduce fresh evidence and a new claim of gender discrimination foreign to the pleadings. The court set two issues: whether the application was merited, and costs. Reviewing the amicus principles in Trusted Society v Mumo Matemu, Tunoi v JSC, Muruatetu and the Ndii decisions, the court held that the Applicants met the criteria: their gendered-legal perspective was novel, their independence intact, and the bias complaint a misconception, since the women petitioners sued as individuals rather than on women-specific discrimination claims. The application succeeded. The court admitted the Applicants as joint amici, directed them to file their appointment within seven days, confined their role to legal submissions at the final determination, barred evidence and interlocutory participation, ordered each party to bear its own costs, and scheduled a mention on 24/10/2024 on the pending joinder application.

Key legal issues

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01

Whether the Applicants met the criteria for admission as amici curiae

Holding

The court found the Applicants satisfied the Mumo Matemu/Tunoi criteria - expertise, independence, novelty, and no evidence adduction - and admitted them as joint amici

Reasoning

The court compared the Applicants' application against the principles in Trusted Society v Mumo Matemu and Tunoi v JSC. It found that the Applicants would confine themselves to legal arguments, would not adduce evidence or participate in interlocutory applications, and had no interest in the outcome. The 1st Respondent's allegation of bias rested on the Applicants' stated intention to expound on gendered impacts of oil extraction, which the court held was a novel, legally relevant perspective rather than partisanship.

p. 14
02

Whether the Applicants were biased or partisan

Holding

The court rejected the 1st Respondent's bias argument as a misconception

Reasoning

The 1st Respondent argued that intending to show how oil extraction disproportionately affects women revealed bias favouring the petitioners. The court held this stretched the argument too far: the Applicants' role was to expound on domestic and international law, and the fact that women petitioners were already in the case did not cover issues of gendered discrimination, since they sued as individuals and not on women-specific claims.

p. 14
03

Whether the proposed issues were novel or fresh evidence

Holding

The gendered-impact perspective was novel law, not fresh evidence, and the Applicants undertook not to adduce evidence

Reasoning

The court accepted that the Applicants would only advance legal arguments on international and domestic law regarding how oil extraction affects women's rights differently from men's. Since no evidence would be tendered and the perspective was not a regurgitation of the parties' arguments, the 1st Respondent's fresh-evidence objection failed.

p. 14

Legal principles established

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  • Article 22(3)(e) permits an organization or individual with particular expertise to appear as a friend of the court with leave of the court
  • A proposed amicus must show expertise, neutrality, novelty of legal argument, and no intent to adduce fresh evidence; general legal expertise does not suffice
  • Explaining a gendered legal perspective on women's rights in extractives does not demonstrate bias where the women petitioners sued as individuals and not on women's-specific discrimination claims

Court orders

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  1. 1.KELIN and ISLA admitted as joint Amici Curiae in the Petition
  2. 2.The Amici Curiae to file and serve their Appointment within seven (7) days on all parties
  3. 3.Amici not permitted to participate in interlocutory applications nor adduce any evidence
  4. 4.Amici's role limited to submissions on legal matters in the final determination of the Petition
  5. 5.Each party to bear its own costs
  6. 6.Petition to be mentioned on 24/10/2024 for the 1st Respondent to confirm whether it continues to oppose the application dated 02/07/2024 seeking joinder of more Petitioners
Jurisdiction invoked
Article 22(3)(e) of the Constitution; Rules 2 and 6 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "JE & 42 others (Being Minors Suing Through Their Next Friend Legal Advise Centre t/a Kituo Cha Sheria)) v Tullow Kenya B.V. & 2 others; National Environment Management Authority & another (Interested Parties) (Environment and Land Constitutional Petition E001 of 2024) [2024] KEELC 7017 (KLR)", Case Analysis (2024). Notice of Motion dated 12/09/2024 in Petition (ELC Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7017/eng@2024-10-22

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