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Supreme CourtOtherPetition 3, 4 & 5 of 2013 (Consolidated)

Kuria & 5 others v Hassan & 4 others (Petition 3, 4 & 5 of 2013 (Consolidated))

Supreme Court of Kenya
25 March 2013
872 words in judgment
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The bottom line

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Kenya's Attorney-General can be a neutral court advisor in election cases; the Law Society cannot if it is partisan.

What this practically means

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The Supreme Court ruled that the Attorney-General, as the government's chief legal advisor, can act as a neutral participant in presidential election petitions because his role is vital for constitutional matters. However, the Law Society of Kenya was denied because it had already taken sides by filing an affidavit supporting one petition. To be a neutral participant, you must remain impartial and not take sides.

Executive summary

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This judgment of the Supreme Court of Kenya, delivered on 25 March 2013, concerns two applications for admission as amicus curiae in consolidated petitions relating to a presidential election. The first application was by the Attorney-General, who argued that his office, as custodian of legal instruments of the executive branch and advisor to the state on matters of public interest, should be permitted to participate as a neutral amicus. The second application was by the Law Society of Kenya (LSK), which relied on its statutory mandate under section 4 of the Law Society of Kenya Act to assist the Government in law-making. The court admitted the Attorney-General as amicus curiae, holding that it would be improper to exclude his office given its constitutional role and that such admission would not prejudice the court's authority or the parties' interests. However, the court disallowed LSK's application, finding that an affidavit sworn by its vice-chairperson in aid of one of the petitions demonstrated that LSK had taken a partisan position, which is incompatible with the neutral role of an amicus curiae. The judgment establishes that a body seeking amicus status must demonstrate neutrality and non-partisanship, and that the Attorney-General, by virtue of his office, is presumptively entitled to such status in matters of public interest unless prejudice is shown.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Attorney-General should be admitted as amicus curiae in the petitions before the court.
  2. 2.Whether the Law Society of Kenya should be admitted as amicus curiae in the petitions before the court.

Key legal issues

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01

Whether the Attorney-General should be admitted as amicus curiae in presidential election petitions.

Holding

The Attorney-General should be admitted as amicus curiae because his office is the custodian of legal instruments of the executive branch and the recognised advisor of the state in matters of public interest, and his admission would not prejudice the court's authority or the parties' interests.

Reasoning

The court considered four factors: (1) the Attorney-General's office is the custodian of legal instruments of the executive branch and the recognised advisor of the state in matters of public interest; (2) the office is the main player in the performance of the Executive's role vis-a-vis the operationalization of the Constitution; (3) the Constitution expressly provides that the Attorney-General may obtain the court's permission to appear as amicus; and (4) the court remains in charge of regulating the precise role of the amicus. The court concluded that excluding the Attorney-General would be improper and that his admission would not be prejudicial.

02

Whether the Law Society of Kenya should be admitted as amicus curiae in presidential election petitions.

Holding

The Law Society of Kenya should not be admitted as amicus curiae because it had taken a partisan position in the proceedings, as evidenced by an affidavit sworn by its vice-chairperson in aid of one of the petitions.

Reasoning

The court noted that an affidavit sworn by the vice-chairperson of LSK in aid of one of the petitions left little doubt that LSK had taken a partisan position. This was the basis for opposition by multiple counsel. The court found the argument against admission more powerful than LSK's submission that its statutory mandate to assist the Government in law-making justified its admission.

Legal principles established

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  • The Attorney-General is entitled to amicus status in public interest proceedings unless it would prejudice the court's authority or the parties' interests.
  • A body seeking amicus status must demonstrate neutrality and non-partisanship.
  • Taking a partisan position, such as filing an affidavit in support of one party, disqualifies an applicant from being admitted as amicus curiae.
  • The court retains control over the amicus's role and can regulate their participation to ensure fairness.

Court orders

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  1. 1.The Attorney-General is admitted to the status of amicus curiae in the petitions before the court.
  2. 2.The application by the Law Society of Kenya for admission to the status of amicus curiae is disallowed.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Inherent jurisdiction of the Supreme Court to regulate its own proceedings and admit amici curiae

Relief refused

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Admission of the Law Society of Kenya as amicus curiae

The court found that LSK had taken a partisan position, as evidenced by an affidavit sworn by its vice-chairperson in aid of one of the petitions, and that this disqualified it from the neutral role of amicus curiae.

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an affidavit in aid of one of the petitions, sworn by the vice-chairperson of LSK, left little doubt that LSK had taken a partisan position
p. 4 Partisanship disqualifying amicus curiae status

Key timeline

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2013-03-25
Supreme Court delivers judgment on applications for amicus curiae by the Attorney-General and the Law Society of Kenya.

Practical implications

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For lawyers

Strategic use of amicus applications

Lawyers should note that clients seeking amicus status must demonstrate strict neutrality. The Attorney-General's office enjoys a presumption of impartiality in public interest cases, but other bodies like the Law Society can be disqualified if they pre-judge the case. Ensure your client has not taken any public position or filed any document supporting a party before applying.

For businesses

Engaging as neutral observers

Businesses or trade associations wishing to submit views in a case must maintain strict neutrality. Filing a supporting affidavit or public statement can disqualify you. If you want to be heard as a friend of the court, stay completely impartial and avoid any action that could be seen as taking sides.

For individuals

Your right to be heard in court

If you want to participate in a court case as a neutral observer offering your expertise, you must remain neutral. Taking sides, such as by swearing an affidavit in support of one party, will prevent you from being heard. The court expects complete impartiality from anyone seeking to help as a friend of the court.

Frequently asked questions

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What is an amicus curiae in Kenya?+

An amicus curiae, or 'friend of the court', is a person or organization that is not a party to a case but offers legal expertise or public interest perspective. In Kenya, the Attorney-General can be admitted as an amicus in presidential election petitions.

Why was the Law Society of Kenya denied amicus status in a Kenyan election case?+

The Law Society was denied because its vice-chairperson had filed an affidavit supporting one of the petitions. This showed the Society had taken a partisan position, which disqualifies it from being a neutral amicus curiae.

Can the Attorney-General be an amicus in Kenyan presidential election petitions?+

Yes, the Supreme Court ruled that the Attorney-General, as the government's chief legal advisor, can be admitted as a neutral amicus in presidential election petitions unless it would prejudice the court's authority or the parties' interests.

What does neutrality mean for amicus curiae in Kenya?+

Neutrality means you must not take sides in the case. You cannot file documents in support of one party, make public statements favoring one side, or have any partisan interest. The court requires strict impartiality from any amicus.

Cite this brief

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Cite this brief

Caselaw, "Kuria & 5 others v Hassan & 4 others (Petition 3, 4 & 5 of 2013 (Consolidated))", Case Analysis (2013). Petition 3, 4 & 5 of 2013 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/14/eng@2013-03-25

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