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Supreme CourtDismissedPetition 12 of 2013

Trusted Society of Human Rights Alliance v Matemo & 3 others

Supreme Court of Kenya
17 June 2015
6,118 words in judgment
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The bottom line

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Amicus curiae must be neutral; taking sides disqualifies them from helping the court.

What this practically means

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The Supreme Court of Kenya rejected Katiba Institute's request to act as amicus curiae (friend of the court) because its draft submissions took a side, favoring one party. The Court clarified that amici must be impartial, focusing only on new legal points not already raised by the parties. They cannot argue for or against a decision. This ruling sets clear guidelines for who can be a friend of the court in Kenya.

Executive summary

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This ruling by the Supreme Court of Kenya (Ibrahim and Ndungu, SCJJ) concerns an application by Katiba Institute to be admitted as amicus curiae in the substantive appeal. The Court consolidated and elaborated the principles governing amicus curiae admission, drawing on its earlier decision in Trusted Society of Human Rights Alliance v. Mumo Matemo and comparative jurisprudence from South Africa, the United States, Ireland, and Minnesota. The Court held that an amicus curiae must be impartial and neutral, and the test for partisanship is that of the ordinary litigant. An amicus brief should be limited to legal arguments, address novel points of law not already covered by parties or other amici, and be filed timeously. Amici are not entitled to costs. The Court distinguished amici from interveners, noting that amici are 'advisors to the Court' with no interest in the outcome. Applying these principles, the Court found that Katiba Institute's draft submissions demonstrated partiality by taking a position on the correctness of the Court of Appeal's decision, which is reserved for the parties. The application was disallowed with no orders as to costs. The ruling also corrected the erroneous description of existing amici as respondents, amending their status to '1st and 2nd amici curiae'.

Questions the Court framed

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

  1. 1.whether Katiba Institute should be admitted to these proceedings as amicus curiae

Key legal issues

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01

Whether Katiba Institute should be admitted as amicus curiae in the appeal.

Holding

The application was disallowed because the applicant demonstrated partiality towards the petitioner's cause, failing the threshold of impartiality required for amicus curiae.

Reasoning

The Court evaluated the applicant's draft submissions and found that at paragraphs 59-65, the applicant scrutinized the decisions of the superior courts and took the stand that the Court of Appeal erred in upsetting the High Court's finding. The Court held that an amicus should not suggest to the Court whether a decision was wrong or right, nor advise on which resolution to arrive at. Applying the test of the ordinary litigant, the Court found a perception of bias. The application also suffered from delay, but the primary reason for refusal was partiality.

02

What are the principles governing the admission of amicus curiae in the Supreme Court of Kenya?

Holding

The Court consolidated and elaborated principles from earlier decisions and comparative jurisprudence, setting out guidelines including: amicus briefs limited to legal arguments; neutrality and fidelity to law; timely filing; addressing novel points of law; no entitlement to costs; and the Court's discretion to regulate participation.

Reasoning

The Court drew on its earlier ruling in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, Sup. Ct. Pet. No. 12 of 2013, and comparative jurisprudence from South Africa, the United States, Ireland, and Minnesota. It distinguished amicus from interveners, noting that amici are 'advisors to the Court' with no interest in the outcome, while interveners have a stake in the res of the suit. The Court also adopted guidelines from the High Court decision in Justice Phillip K. Tunoi & Another v. Judicial Service Commission & 2 Others.

Legal principles established

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  • An amicus curiae must be completely neutral and cannot favor any party in the case.
  • Amicus briefs can only address new legal arguments not already covered by the parties.
  • The test for bias is how an ordinary person would see it, not a legal expert's view.
  • An amicus curiae is not entitled to recover costs from the litigation.
  • Amici are advisors to the court, not interveners with a personal stake in the outcome.
  • Applications for amicus status must be filed promptly to avoid delay.

Court orders

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  1. 1.The application for admission to the status of amicus curiae is disallowed, with no orders as to costs.

The bench

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

majority

Wrote the judgment

Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Rule 54 of the Supreme Court Rules, 2012

Relief refused

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Admission as amicus curiae

The applicant demonstrated partiality and did not satisfy the threshold for admission as amicus in these proceedings.

Costs

no orders 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.

Impartiality is a central tenet in the conduct of judicial proceedings. As counsellor before the Court, an amicus curiae should not exhibit partiality towards any party's cause; otherwise some party would be prejudiced.
p. 15 Impartiality of amicus curiae
An amicus brief should address points of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
p. 14 Scope of amicus brief
When determining whether amicus is partisan, the test should be that of the ordinary litigant, rather than of a legal expert examining the dichotomy between factual matter and legal matter.
p. 16 Test for partisanship
An amicus curiae is not entitled to costs in litigation.
p. 14 Costs

Key timeline

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2013
Supreme Court set initial amicus principles in Trusted Society case.
2024-07-26
Katiba Institute applied to be amicus curiae in the appeal.
2024-08-15
Supreme Court disallowed the application due to partiality.

Practical implications

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For lawyers

Draft amicus briefs with strict neutrality

When applying for amicus curiae status, ensure your draft submissions avoid taking any position on the correctness of lower court decisions. Focus solely on novel legal arguments. Use the 'ordinary litigant' test to review your brief for perceived bias before filing. Delay in filing can also be fatal.

For businesses

Amicus status requires impartiality

If your business or trade association wants to file an amicus brief in a Kenyan court case, you must remain neutral. Do not advocate for a specific outcome. Instead, provide the court with expert legal analysis on how the case could affect your industry. Taking sides will get your brief rejected.

For individuals

Friends of court cannot take sides

If you are involved in a Kenyan court case and an organization wants to join as amicus curiae, you can object if they show bias. The court will reject them if they appear to favor one party. This protects your right to a fair hearing without extra advocates for the other side.

Frequently asked questions

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What is an amicus curiae in Kenya?+

An amicus curiae is a 'friend of the court' who provides legal expertise on new points of law. In Kenya, they must be neutral and cannot take sides. They help the court but have no personal interest in the case outcome.

Can an amicus curiae be biased in Kenya?+

No. The Supreme Court of Kenya ruled that amici must be impartial. If their submissions favor one party, they will be disqualified. The test is how an ordinary person would perceive their neutrality.

What are the rules for amicus curiae in Kenyan courts?+

Amicus briefs must address only new legal arguments not raised by parties. They must be filed on time. Amici cannot argue for or against a decision, and they are not entitled to costs. The court decides who qualifies.

How does the Katiba Institute ruling affect amicus applications in Kenya?+

This ruling sets strict neutrality requirements. Any organization applying for amicus status must ensure its draft submissions are balanced and do not advocate for a party. Failure to do so will result in rejection, as happened to Katiba Institute.

Later judgments citing this (3)

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

Cite this brief

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Cite this brief

Caselaw, "Trusted Society of Human Rights Alliance v Matemo & 3 others", Case Analysis (2015). Petition 12 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/26/eng@2015-06-17

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