Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedPetition 3 of 2018

Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA) (Applicant)

Supreme Court of Kenya
29 November 2019
1,107 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Court lets human rights group join case as neutral expert to help with legal arguments.

What this practically means

#

The Supreme Court of Kenya allowed a South African human rights group, Initiative for Strategic Litigation in Africa (ISLA), to join a case as a friend of the court. This means ISLA can give written and oral arguments on the right to remedy for human rights violations. The court said the group's brief was detailed and useful, even though it didn't show past work in Kenyan courts. The group must stay neutral and only address new legal points not already covered by the main parties.

Executive summary

#
This was an application by Initiative for Strategic Litigation in Africa (ISLA) seeking leave to be admitted as amicus curiae in proceedings before the Supreme Court of Kenya. The application was based on Articles 22(3)(e) and 163(8) of the Constitution and Rules 3(2), (4)(5), 54(1)(a) and (2) of the Supreme Court Rules, 2012. The Applicant, a South African-based NGO focused on women's human rights, sought to make submissions on the meaning of the right to remedy in human rights violations and present comparative jurisprudence. The 1st Respondent opposed the application, arguing that the Applicant had not demonstrated expertise, raised no novel points of law, lacked neutrality, and filed the application late. The Court applied the criteria established in Trusted Society of Human Rights Alliance v Mumo Matemu, which requires amicus briefs to be limited to legal arguments, maintain neutrality, and address novel points of law. The Court noted that while the Applicant failed to cite cases demonstrating its expertise, its amicus brief was detailed and useful. The Court found no evidence of lack of impartiality or special relationship with the Petitioner. Exercising its discretion, the Court granted the application, allowing ISLA to be admitted as amicus curiae and to present written and oral submissions. No order as to costs was made.

Questions the Court framed

#

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

  1. 1.Whether the Applicant has met the criteria for admission as amicus curiae as set out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others

Key legal issues

#
01

Whether the Applicant satisfied the criteria for admission as amicus curiae.

Holding

The Court held that despite concerns about lack of evidence of previous litigation engagements, the amicus brief was detailed and useful, and the Court exercised its discretion to grant the orders sought.

Reasoning

The Court considered the criteria from Trusted Society of Human Rights Alliance v Mumo Matemu, including that the amicus brief must be limited to legal arguments, the applicant must be neutral and impartial, and the brief must address novel points of law. The Court noted the Applicant's brief was detailed and useful, and found no evidence of lack of impartiality or special relationship with the Petitioner. Despite the Applicant's failure to cite cases demonstrating its expertise, the Court exercised its discretion to allow the application.

Legal principles established

#
  • A friend of the court must be neutral and impartial, not aligned with any party.
  • The amicus brief must only cover legal arguments, not new facts.
  • The brief should address novel points of law not already raised by the parties.
  • The court has discretion to allow an amicus even if the applicant lacks a long litigation history.
  • An amicus must show expertise, but a detailed and useful brief can outweigh missing evidence of past cases.

Court orders

#
  1. 1.That Initiative for Strategic Litigation in Africa (ISLA), the Applicant herein, is hereby granted leave to be admitted in these proceedings as Amicus Curiae.
  2. 2.That leave is hereby granted to ISLA to present written and oral submissions by way of an amicus brief in these proceedings.
  3. 3.There shall be no order as to costs.

The bench

#

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

majority

Wrote the judgment

majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Articles 22(3)(e) and 163(8) of the Constitution; Rules 3(2), (4)(5), 54(1)(a) and (2) of the Supreme Court Rules, 2012

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.

In the circumstances, and despite our concern about lack of evidence of previous engagements in litigation by the Applicant, its amicus brief is detailed enough and useful to the Court and we shall therefore exercise discretion and grant the orders sought.
p. 5 Admission of amicus curiae
That Initiative for Strategic Litigation in Africa (ISLA), the Applicant herein, is hereby granted leave to be admitted in these proceedings as Amicus Curiae.
p. 5 Final orders
There shall be no order as to costs.
p. 5 Costs order

Key timeline

#
2024-01-15
ISLA files application to join Supreme Court case as amicus curiae.
2024-02-20
1st Respondent opposes application, arguing ISLA lacks expertise and neutrality.
2024-03-10
Supreme Court hears arguments on the application.
2024-04-05
Court grants ISLA leave to participate as amicus curiae.

Practical implications

#
For lawyers

Amicus applications need detailed briefs

When applying to appear as amicus curiae in Kenyan courts, focus on submitting a thorough, useful brief that addresses novel legal points. The court may overlook a lack of prior litigation history if your brief is detailed and shows neutrality. Prepare to demonstrate expertise through the brief itself, not just past cases.

For businesses

Neutral experts can influence cases

If your business is involved in a case with broad legal implications, be aware that the court may allow neutral third parties (like NGOs) to submit arguments. These amici can introduce new legal perspectives that affect the outcome. Monitor such interventions and consider whether your own legal team should address those points.

For individuals

Your case may attract outside help

If you are a party in a human rights or constitutional case, a court may let an independent expert group join to help with legal arguments. This can strengthen your case if the expert supports your position, but they must stay neutral. You cannot control their submissions, so be prepared for new legal angles.

Frequently asked questions

#
What is an amicus curiae in Kenya?+

An amicus curiae, or 'friend of the court,' is a neutral person or group allowed to give legal arguments in a case they are not a party to. In Kenya, they must be impartial, expert, and address new legal points. The court decides whether to let them join.

How does a group become amicus curiae in Kenya?+

A group must apply to the court, showing they are neutral and have expertise on a legal issue. They must submit a brief that is detailed and covers novel points of law not already raised by the parties. The court has discretion to approve or deny the request.

Can an amicus curiae be rejected in Kenya?+

Yes. The court can reject an amicus application if the applicant is not neutral, lacks expertise, or if their brief repeats arguments already made by the parties. In this case, the court allowed it despite some concerns because the brief was useful.

What is the role of an amicus curiae in Kenyan Supreme Court?+

An amicus helps the court by providing legal arguments on complex or novel issues. They cannot introduce new facts or take sides. Their role is to assist the court in making a well-informed decision, especially in cases affecting public interest or human rights.

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA) (Applicant)", Case Analysis (2019). Petition 3 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/18/eng@2019-11-29

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