Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International (Amicus Curiae)
The bottom line
#Supreme Court blocks Privacy International from joining case due to lack of impartiality.
What this practically means
#Privacy International wanted to join a Supreme Court case as a neutral friend of the court, but the judges said no. The Court ruled that Privacy International's arguments against a government device system were one-sided, favoring one party. Under Kenyan law, a friend of the court must be neutral and impartial. Since Privacy International failed to show this, its application was dismissed without costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant, Privacy International, has met the legal requirements for joinder as amicus curiae in these proceedings.
Key legal issues
#Whether the Applicant met the criteria for admission as amicus curiae under Rule 19 of the Supreme Court Rules, 2020 and the principles in Mumo Matemu.
The Applicant failed to demonstrate impartiality and therefore did not meet the threshold for admission as amicus curiae.
The Court considered the Applicant's expertise in privacy was not doubted, but found its proposed stance on the Device Management System (DMS) to be partisan, favoring the Appellant and the High Court decision. This lack of impartiality, as objected to by the 1st and 6th Respondents, meant the Applicant did not satisfy the criteria set out in Rule 19 and the guiding principles from Mumo Matemu, which require neutrality and fidelity to the law.
Legal principles established
#- An amicus curiae must prove expertise, independence, and impartiality under Supreme Court Rule 19.
- A partisan stance that favors one party disqualifies an applicant from being amicus curiae.
- The Court applies the Mumo Matemu principles to assess amicus applications.
- Even proven expertise in an area does not override the requirement for neutrality.
- Objections from parties about lack of impartiality can block an amicus application.
Court orders
#- 1.The Notice of Motion Application by the Applicant, Privacy International, dated 8th October 2020 is dismissed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 19 of the Supreme Court Rules, 2020
Relief refused
#Joinder of Privacy International as amicus curiae
The Applicant did not satisfy the threshold for admission as amicus curiae, particularly the requirement of impartiality.
Costs
There shall 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.
An Applicant for joinder as amicus curiae has to satisfy this Court that it has met the legal requirements for joinder. The relevant law in that regard is Rule 19 of the Supreme Court Rules, 2020.
We are therefore not convinced that the Applicant has demonstrated impartiality and agree with the 1st and 6th Respondents that the Applicant does not satisfy the threshold for admission as amicus curiae in these proceedings.
HAVING therefore considered the Application and submissions by the respective parties, we find no merit in this application and we accordingly choose not to exercise discretion, and accordingly, dismiss it.
There shall be no order as to costs.
Key timeline
#Practical implications
#Amicus applications need strict neutrality
When applying to appear as amicus curiae in the Supreme Court, ensure your proposed submissions are balanced and not aligned with any party. Even if your client has strong views, frame arguments as neutral legal analysis. The Court will reject applications that appear to advocate for one side, as happened here.
Third-party interventions face high bar
If your business wants to influence a Supreme Court case as a friend of the court, you must show you are impartial. Any hint of favoring one side will get you thrown out. Prepare a neutral brief that explains legal principles, not advocacy. This ruling shows the Court is strict about this requirement.
Neutrality key for court participation
If you or your organization wants to join a Supreme Court case as a friend of the court, you must be completely neutral. The Court rejected Privacy International because its arguments were one-sided. To succeed, your input must help the Court understand the law, not take sides.
Frequently asked questions
#What is an amicus curiae in Kenya?+
An amicus curiae is a 'friend of the court' who helps the judge by providing expertise or a different perspective. In Kenya, they must be neutral and impartial, not take sides. The Supreme Court rejected Privacy International because its arguments favored one party.
Why did the Supreme Court reject Privacy International's application in Kenya?+
The Court found Privacy International's proposed arguments against the Device Management System were partisan and favored the appellant. Under Rule 19 of the Supreme Court Rules, an amicus must be impartial. Since Privacy International failed to show neutrality, its application was dismissed.
What is Rule 19 of the Supreme Court Rules 2020 in Kenya?+
Rule 19 sets the requirements for someone to join a Supreme Court case as amicus curiae. They must prove expertise, independence, and impartiality, or show public interest. The Court uses the Mumo Matemu case to guide its decision. Failure to meet these criteria leads to rejection.
Can an organization with expertise in privacy join a Kenyan Supreme Court case?+
Yes, but expertise alone is not enough. The organization must also be neutral and impartial. In this case, Privacy International had privacy expertise but was rejected because its arguments were one-sided. To succeed, the organization must present balanced, non-partisan legal analysis.
Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Communications Authority of Kenya & 5 others; Privacy International (Amicus Curiae)", Case Analysis (2021). Petition 8 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/6/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.