The government cannot lawfully deprive a person of part or all of their property via a grant of lease to another person.

Brief facts

The appellant challenged the decision of the Court of Appeal which partly allowed an appeal against the decision of the Environment and Land Court on the award of damages. The respondent was the registered owner of the suit property measuring 425.7 hectares situate in the Coastal Region pursuant to a grant issued under the Registration of Titles Act, Cap 281 Laws of Kenya (repealed). The respondent claimed that in 2007, the appellant, without reference to or concurrence of the former, unilaterally issued duplicate title deeds over portions of the suit property in favour of third parties under the Registered Lands Act, Cap 300 Laws of Kenya (now repealed). It was the respondents claim that the duplicate title deeds were issued during the 2007 election period, at the behest of the politicians in the area, with a view to winning votes in favour of the respective candidates. The respondent further claimed that the decision by the appellant to issue duplicate titles to third parties encouraged more squatters to encroach and settle on the suit property. It was the respondents further claim that among other groups of people, the Department of Defence through the then Permanent Secretary to the Treasury, was granted a duplicate title over a parcel of land L.R. No. 24853 which was part of the suit property. 

Aggrieved, the appellants filed a petition at the trial court and claimed that the duplicate titles were issued to trespassers who had encroached on its suit property. The appellants case was that the respondents act of issuing titles over the suit property was illegal and amounted to unlawful compulsory acquisition and deprivation of its property. It further claimed that the respondents actions amounted to a violation of its rights under Article 40 (1) and (3) of the Constitution, and sought two declarations to that effect, and a consequential award of damages. The Environment and Land Court held that the issuance of duplicate titles over the appellants land, in favour of third parties, amounted to unlawful compulsory acquisition, and a violation of its right to property under article 40(3) of the Constitution. The learned Judge determined that the acreage unlawfully acquired was 51.129 ha and awarded the respondent a sum total of Kshs. 413,844,248.70/- as compensation for the land encroached and Kshs. 51,129,000/- as general damages for breach of the respondents right to property under article 40 of the Constitution. The Court of Appeal upheld the trial courts finding that the respondents right to property was violated, and determined that the appellants acts amounted to compulsory acquisition of portions of the suit property. Further, the appellate court held that the respondent was entitled to compensation under article 40(3) of the Constitution, on account of the compulsory acquisition. Additionally, the court faulted the trial Judge for failing to properly exercise his discretion in the computation of damages and determined that the respondent was entitled to compensation for the entire suit property. It found that upon payment of the compensation, the respondent would be deemed to have relinquished its title to the suit property. Finally, the Court of Appeal awarded damages of Kshs. 449, 434, 800/- for the compulsory acquisition of the suit property and Kshs. 42, 570, 000/- as damages for violation of the appellants right to property. Aggrieved, the petitioner filed the instant appeal before the Supreme Court.

Issues

1. Whether the government could lawfully deprive a person of part or all of their property via a grant of lease to another person.
2. What was the lawful procedure for the government to compulsorily acquire land?
3. What did the court consider in awarding damages for unlawful compulsory acquisition of land?
4. Whether the unlawful acquisition of a portion of its land which resulted in the diminution of the value of the whole of the suit property amounted to constructive compulsory acquisition.

Relevant provisions of the law

Constitution of Kenya, 2010 

Article 40 - Protection of right to property

(3)       The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description unless the deprivation--

(a)      results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b)      is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that--

(i)        requires prompt payment in full, of just compensation to the person; and

(ii)       allows any person who has an interest in, or right over, that property a right of access to a court of law.

Held

1. The fact that the respondent was the registered proprietor of the suit property had never been called into question, or challenged by the appellant. During the proceedings at both the trial and appellate courts, the ownership status of the suit property was never in doubt. It remained an uncontroverted fact that the respondent acquired the suit property pursuant to a grant of lease by the government. By the time the cause of action arose, the lease in favour of the respondent was intact.
2. The only way the government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution, and the procedure stipulated in the Land Acquisition Act (repealed) which was the applicable law at the time. The government did not acquire the portion of the suit property compulsorily. The facts on record did not point towards compulsory acquisition. Being the custodian of the Land Register, and the guarantor of titles emanating there-from, the government was acutely aware that the suit property was privately owned by the respondent.
3. Any compulsory acquisition process, ought to have commenced with a requisite notice to the respondent, and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired, ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with prompt payment in full of a just compensation to the respondent. There was nothing on the record to show, that any of those mandatory processes, was followed before a portion of the suit property was acquired. The issuance of titles over a portion of the suit property, in favour of third parties was unlawful, un-procedural, and an egregious violation of the respondents right to property. The issuance of titles to third parties over a portion of the suit property, amounted to a violation of article 40(3)(a) and (b) of the Constitution.
4. Any injury or loss suffered by a person either through a tortious act, omission or breach of contract, attracted redress in a court of law. The redress included an award of damages to the extent possible as may be determined by the court. The question regarding the type, extent, and quantum of damages to be awarded, had long been settled through a long line of decisions from the courts. Under article 22(1) of the Constitution, every person had the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed, or was threatened. Among the reliefs that a court could grant upon proof of violation of a fundamental right, was an order for compensation. The quantum of damages to be awarded, depended on the nature of the right that was proven to have been violated, the extent of the violation, and the gravity of the injury caused.
5. Both courts granted special and general damages. There was no reason to interfere with the findings of the two superior courts in that regard. In arriving at the quantum of special damages, the trial court placed reliance upon a valuation report by a private valuer. The main basis upon which special damages could be granted for the deprivation of property, was the market value of the suit property. In case of general damages, a court of law exercised discretion guided by the circumstances of each case. In granting special damages, the trial court was guided by the valuation report tabled by the respondent. In the absence of a contrary report on record, there was no basis upon which to interfere with the award. Even if there had been one such other report, the Supreme Courts jurisdiction to interfere would have been largely circumscribed, unless the award had clearly ignored the fundamental principles of valuation as demonstrated by the counter-report.
6. The principles governing compensation for compulsorily acquired land, could not be applicable to the suit land, as the same had not been so acquired. The most appropriate remedy was an award of damages, as held by the trial court and partially upheld by the Court of Appeal. The Supreme Court approved of the Court of Appeals decision to award compensation in difficulty, not just with regard to a portion of the land, but for the whole of the suit property including the un-acquired portion. Nor could the Supreme Court justify an award of damages that extended to that part of the land that had neither been compulsorily, nor unlawfully acquired. The respondents contention that the unlawful acquisition of a portion of its land had resulted in the diminution of the value of the whole of the suit property was a matter of fact, which ought to have been authoritatively established at the trial court. But even if the said fact had been established at the trial court, the same would not have constituted a constructive compulsory acquisition, a legal tenet unknown to Kenyan law.

Circumstances in which the Supreme Court could vary its decisions.

Brief facts

The applicant sought to review, vary and or set-aside the Supreme Courts ruling that upheld the Court of Appeals decision denying certification and to reinstate it for fresh hearing. 

Issues

Under what circumstances could the Supreme Court vary of its judgments, rulings or orders?

Held

1. The extent of the Supreme Courts review of certification jurisdiction was provided for in article 163(5) of the Constitution which provided that a certification by the Court of Appeal under clause 4(b) could be reviewed by the Supreme Court, and either affirmed, varied or overturned. Where one applied to the Court of Appeal for leave to appeal to the Supreme Court, and the party was not satisfied by the decision of the Court of Appeal, no appeal lay. The only recourse was for the party to apply for review of the matter to the Supreme Court.
2. The Supreme Court could only vary any of its judgments, rulings or orders under the following instances:
   1. where the judgment, ruling or order was obtained by fraud or deceit.
   2. Where the judgment, ruling or order was a nullity, such as when the court itself was not competent;
   3. where the court was misled into giving judgment, ruling or order under a mistaken belief that the parties had consented;
   4. where the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.
3. The applicant had not laid any basis, upon which the court should review its ruling. None of the conditions had been demonstrated as prevailing so as to warrant a review or variation of the courts ruling.

A natural person does not have the locus standi to move the Supreme Court to issue an advisory opinion.

Brief facts

The applicants sought for the Supreme Court findings on the gender principle in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, be declared unconstitutional. In opposition, the 1^st respondent filed a preliminary objection on grounds the applicants lacked locus standi to seek an advisory opinion of the Supreme Court under the Constitution and therefore also lacked the legal standing to seek a review of the Supreme Courts advisory opinion.

Issues

1. Whether a natural person had the locus standi to move the Supreme Court to issue an advisory opinion.
2. Whether a person who was not a party in previously determined Supreme Court proceedings had the locus standi to file an application that sought to review the orders issued.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163 - Supreme Court

(6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

Held

1. Article 163(6) of the Constitution granted the Supreme Court jurisdiction to issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government. A party that sought an advisory opinion under article 163(6) had to have locus standi.
2. The Supreme Court had to always consider whether the party that sought to move it fell within the categories of parties decreed as having such locus standi by the Constitution. The applicants did not fall within the categories contemplated under article 163(6) of the Constitution and therefore they did not have locus standi to seek a review of orders issued by the Supreme Court in the advisory opinion. The applicants were not parties to the proceedings in Advisory Opinion No. 2 of 2012 and as such, they lacked locus standi to approach the Supreme Court to review and/or vary its orders.

The court could not take away the liberty of a party to withdraw a suit.

Brief facts

The 1^st respondent had previously applied for orders to strike out the petition of the appeal by the petitioner. Following the respondents application, the petitioner filed an application to withdraw the petition.

Issues

Whether the court could take away the liberty of a party to withdraw a suit. 

Held

1. While a party could move the Supreme Court to have an appeal struck out; rule 27(1) of the Supreme Court Rules, 2020, a party could, with the leave of the court, withdraw the proceedings at any time before the delivery of the judgment. A partys liberty to withdraw a matter could not be taken away. A court had to allow a party who had approached the court to withdraw such a matter if he deemed so fit to do.
2. Since the application to withdraw the petition had been granted, there was no need to delve into the application by the 1^st respondent to strike out the petition of appeal because the petitioner on his own motion had moved to withdraw the petition in the appeal. That did not in itself connote bad faith as the appeal stood withdrawn, which was essentially what the 1^st respondent sought to have the court do by seeking orders to have the appeal struck out. No prejudice would be caused to the 1^st respondent by the petitioner moving the court to have the proceedings withdrawn.

An appeal to the Supreme Court could not lie from a different set of facts other than the set of facts that were adjudicated before the High Court and the Court of Appeal.

Brief facts

The appellants contested the application of the curfew imposed by the government in Garrisa Town following the unfortunate terrorist attack on Garissa University. At the High Court, the appellants challenged the constitutionality of the curfew and the constitutionality of sections 8 and 9 of the Public Order Act, CAP. 56. The High Court dismissed the petition on grounds that the petitioners had not pointed out any articles of the Constituion impeded by sections 8 and 9 of the Public Order Act. The High Court also dismissed the petition on grounds that the curfew only limited the rights of the residents of the four counties affected by the curfew but it did not take away their rights. The court further found that under article 58 of the Constituion of Kenya, 2010 (Constitution), the Presidents power to declare a state of emergency imposed military law which was dissimilar from imposition of curfew orders which were fundamentally police and internal security matters intended to maintain law and order to enable investigations to be conducted. Further, each case of imposition of a curfew order had to be considered on its own merits. The court ultimately found that the impugned curfew order was justified at the time it was imposed and not unconstitutional. 

Aggrieved, the appellant filed an appeal at the Court of Appeal that was similarly dismissed.  Further aggrieved, the applicant approached the Supreme Court and filed the instant application in which the appellant sought conservatory orders to halt the curfew set by the President through the Cabinet Secretary for the Ministry of Interior and Coordination of National Government aimed at curbing the spread of Covid 19. The application also challenged the constitutionality of sections 8 and 9 of the Public Order Act. 

Issues

1. What were the principles that guided the Supreme Court in determining applications for conservatory orders?
2. Whether the Supreme Court had the jurisdiction to determine an appeal as of right in any case involving the interpretation or application of the Constitution where the issue in question had not been adjudicated at the High Court or Court of Appeal.
3. Whether an appeal before the Supreme Court challenging the application of a law that involved the interpretation or application of the Constitution could lie from a different set of facts other than the set of facts that were adjudicated before the High Court and Court of Appeal.

Relevant provisions of the law

Public Order Act (cap 56)

Section 8 - Curfew orders

Section 9 - Curfew restriction orders

Held

1. The principles that guided the Supreme Court in determining applications for conservatory orders were:
   1. the Appeal or intended appeal was arguable and not frivolous.
   2. Unless the orders sought were granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
   3. That it was in public interest that the conservatory orders be granted.
2. The question whether an appeal was arguable, did not call for the interrogation of the merit of the appeal. The Supreme Court at an interlocutory was not to make any definitive findings of either fact or law. An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the Court.
3. In the time it had taken for the appeal to reach the Supreme Court, the world had been rocked by the Covid-19 pandemic which was first identified in December of 2019 and declared a global pandemic in March 2020. The Supreme Court took judicial notice that on March 25, 2020, the President, as part of the Governments containment and treatment protocols announced a nationwide overnight curfew to take effect from March 27, 2020 between the hours of 7 p.m. to 5 a.m. The night time curfew had been continuously extended with some modifications on the effective hours being reduced but the same had since been lifted by Presidential directive on October 20, 2021. The curfew imposed after the 2015 Garissa University attack, was prompted by security concerns. However, the contested curfew orders in the application were due to the Covid-19 pandemic, which had been declared a public health emergency.
4. For an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must have had first been in issue at both the High Court and then the Court of Appeal for determination. The Supreme Court recognized and respected the constitutional competence of courts in the judicial hierarchy to resolve matters before them.
5. The underlying challenge for the curfew orders of 2015 and the curfew orders of 2020 was the constitutionality of sections 8 and 9 of the Public Order Act on which the curfew orders were premised. The facts giving rise to the cause of actions were premised on different aspects; the 2015 curfew orders on security concerns following a terrorist attack and the 2020 curfew orders on a public health emergency following the continuing threat of a global pandemic.
6. At no point were the superior courts called on or had opportunity to render themselves on the legality and constitutionality or otherwise of the 2020 curfew orders issued with a view to contain the Covid-19 virus as a public health emergency. It would be greatly dishonest for the applicant to seek to introduce that new aspect when on final appeal before the Supreme Court. More so without having argued it before both the High Court and Court of Appeal.

Principles that guide the Supreme Court in determining an application for leave for extension of time.

Brief facts

The dispute resolved as to whether the 5^th, 6^th and 7^th respondents were procedurally appointed as commissioners of the Judicial Service Commission. The petitioner claimed that the nomination and appointment of the aforementioned was undertaken without public participation. The 1^st, 2^nd and 5^th respondents filed the instant application in which they sought leave to file replying affidavits out of time. They sought for the court to extend the time to file their replying affidavits.

Issues

1. What were the principles that guided the Supreme Court in determining an application for leave for extension of time? 
2. What was the purpose of a replying affidavit?

Held

1. Rule 15(2) of the Supreme Court Rules, 2020 granted the Supreme Court the discretion to extend time. The Supreme Court could, in its discretion, extend time for any action under the Rules. The guiding principles for extension of time were:
   1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
   2. A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
   3. Whether the Supreme Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis
   4. Whether there was reasonable reason for the delay; the delay should be explained to the satisfaction of the court.
   5. Whether there would be any prejudice suffered by the respondent if the extension was granted.
   6. Whether the application had been brought without undue delay.
   7. Whether in uncertain cases, like election petitions, public interest should be a consideration for extending time.
2. No prejudice would be occasioned to the respondents if leave was granted as prayed. The purpose of the replying affidavits was to reinforce the grounds of objections already filed. A replying affidavit was the principal document wherein a respondents reply was set and the basis of any submissions and/or list of authorities that may be subsequently filed.

An attempt by an advocate to conceal material facts in a matter was unethical and a breach of the duties of an advocate as an officer of the court.

Brief facts

The Court of Appeal had overturned the judgment and orders of the High Court in Petition No. 72 of 2011. In dismissing the 1^st to 4^th respondents petition, the High Court had held that the petitioners had acted within the law in demanding payment of excise duty on returnable containers and that there was no breach of any constitutional rights of the 1^st to 4^th respondents. 

Aggrieved by the decision of the Court of Appeal, the petitioners filed the instant petition of appeal and the matter was eventually set for hearing. However, before the hearing and upon perusing the filed pleadings and record of appeal, the Supreme Court noted some serious anomalies: that the petition of appeal omitted any prayer for relief, and that the petition filed in the High Court as well as a substantial part of the affidavit supporting it, was missing from the record of appeal. As such, the court found that it was necessary to ascertain the status of these documents before proceeding to hear the matter. 

Counsel for the petitioners indicated that their petition of appeal contained the reliefs sought. It was their submission that the court ought to make pronouncements on the principles of taxation in terms of that paragraph. Counsel further urged the court to allow them to ventilate the matter and not strike out the appeal, arguing that such a move was too draconian and that if necessary, the petitioners should then be allowed to amend the petition. On the other hand, counsel representing the respondents submitted that the petition did not contain any reliefs sought. In that regard, he submitted that the petition could not now be amended and urged that the omission was fatal because the arguments to be advanced by the parties had to result in reliefs that the court could properly grant. It was further contended that there being no reliefs sought, proceeding to hear the matter would be undertaking an academic exercise as a court determined issues pleaded and granted reliefs sought by the parties.

Issues

1. Whether a record of appeal that did not contain the required documents relating to the proceedings at the trial court was fatally defective.
2. Whether an attempt by an advocate of the High Court of Kenya to conceal material facts of a matter was unethical and a breach of the duties an advocate owed to the court as an officer of the court.

Held

1. There were no actual legally recognized reliefs pleaded by the petitioners for the court to grant, the petition of appeal before the court was fatally defective for lack of reliefs sought and ought to be struck out.
2. The record indicated that the instant matter was severally mentioned before the Deputy Registrar for the petitioners to file a supplementary record of appeal. The mentions culminated into a consent dated October 5, 2020 adopted as a court order on October 8, 2020 where the court directed and ordered that the supplementary record of appeal be filed and served within 14 days from the date of recording the consent. The petitioners filed a supplementary record but it only contained the order and proceedings of the Court of Appeal. Therefore, the defect was not cured as the High Court petition and part of the affidavit were still missing.
3. Rule 33(4) of the Supreme Court Rules, 2012 (repealed) which rules were applicable at the time of filing stated that for the purpose of an appeal from a court or tribunal in its appellate jurisdiction, the record of appeal had to contain documents relating to the proceedings in the trial court corresponding as nearly as possible to the requirements under sub rule (3) and had to further contain the following documents relating to the appeal in the first appellate court  being the certificate, if any, certifying that the matter was of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. The petitioners were obligated by law to include all the pleadings and documents relied upon during the hearing in the two superior courts. Failure to comply with section 33(4) of the Supreme Court Rules, 2012 (repealed) was fatal as the window for such compliance was closed. The petition was fatally defective and incurable
4. The Supreme Court was concerned with the demeanour of counsel appearing for the petitioners. Even when he was aware that essential documents were missing from the record of appeal, he intended to proceed with the matter without duly informing the court or the other parties in the matter. That apparent attempt by counsel to mislead the court, fell short of professional etiquette and conduct that was expected from an advocate and officer of the court. It was improper, dishonest, and discourteous for an advocate to deliberately conceal material facts that were important to arriving at a just and fair decision. The Supreme Court frowned greatly upon such behaviour.

Factors considered by the Supreme Court in determining whether to consolidate matters.

Brief facts

The 71^st, 72^nd and 73^rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted.

Issues

What factors did the Supreme Court consider when determining whether to consolidate matters?

Held

1. The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2021, which stipulated that the court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time.
2. The essence of consolidation was to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that sought it, nor was it intended to occasion any disadvantage towards the party that opposed it.
3. Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment.
4. The instant application had met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others, and encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellants Petitions No. 11 (E015) of 2021, which raised only one question.
5. The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.

Principles that guide the Supreme Court in determining an application to be joined as an amicus curiae (friend of the Court).

Brief facts

The applicants sought to be enjoined as amici curiae (friends of the court). The applicants contended that they had expertise and intended to submit to the court on constitutional issues. 

Issues

What were the principles that guided the Supreme Court in determining an application to be enjoined as amicus curiae (friend of the court)?

Relevant provisions of the law

Supreme Court Rules, 2020

Rule 19 - Participation of friends of the Court

(1)       The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.

(2)       The Court shall before admitting a person as a friend of the court, consider

(a)      proven expertise of the person;

(b)      independence and impartiality of the person; or

(c)      the public interest.

(3)       Any fees or expenses incurred by a person appointed by the Court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.

(4)       An application to be admitted as an amicus or a friend of the Court shall be done within 7 days upon filing of a response in any proceedings before the Court.

Held

1. An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.
2. The guiding principles applicable in determining an application to be enjoined as amicus curiae were:
   1. An amicus brief should be limited to legal arguments.
   2. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
   3. An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010s call for resolution of disputes without undue delay. The court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
   4. An amicus brief should address point(s) 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.
   5. Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
3. At the core of the petition was the application and interpretation of articles 255, 256 and 257 of the Constitution on amendment of the Constitution. The applicants had demonstrated scholarly expertise in constitutional law. The submissions advanced by the applicants would be of valuable assistance to the Supreme Court.
4. The court was not convinced by the arguments by the 20^th and 23^rd respondents on bias and lack of neutrality as the respondents had not provided anything which pointed to a lack of impartiality on the part of the applicants. With no evidence pointing to lack of impartiality on the applicants, the applicants had met the criteria set out in Mumo Matemu on joinder of amici curiae. Their participation would bring on board the much needed additional material on the subject of the petition; and that would aid the court in arriving at a judicious determination.

Principles that guide the Supreme Court when determining applications to be joined as amicus curiae (Friend of the Court).

Brief facts

The applicant sought to be joined as amicus curiae (friend of the court). The applicant contended that he had the expertise and intended to submit to the court on the history of the making of the Constitution vis--vis the basic structure doctrine and its application. 

Issues

What were the principles that guided the Supreme Court in determining an application to be joined as amicus curiae (friend of the court)?

Relevant provisions of the law

Supreme Court Rules, 2020

Rule 19 - Participation of friends of the Court

(1)       The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.

(2)       The Court shall before admitting a person as a friend of the court, consider

(a)      proven expertise of the person;

(b)      independence and impartiality of the person; or

(c)      the public interest.

(3)       Any fees or expenses incurred by a person appointed by the Court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.

(4)       An application to be admitted as an amicus or a friend of the Court shall be done within 7 days upon filing of a response in any proceedings before the Court.

Held

1. An applicant for joinder as amicus had to satisfy the Supreme Court that they had satisfied the legal requirements for joinder under rule 19 of the Supreme Court Rules 2020.
2. The guiding principles applicable in determining an application to be joined as amicus curiae were:
   1. An amicus brief should be limited to legal arguments.
   2. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
   3. An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution of Kenya, 2010s call for the resolution of disputes without undue delay. The Court could, therefore, and on a case-by-case basis, reject amicus briefs that did not comply with the principle of timeous filing.
   4. An amicus brief should address point(s) 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.
   5. Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue.
3. The role of amici in Court was to aid the court to arrive at a determination based on the law. The applicant wished to restrict himself to only addressing the history of the making of the Constitution vis--vis the basic structure doctrine and its application. The applicant was neutral on the dispute, and he would restrict his submissions to the issues raised in his amicus brief.
4. The applicants amicus brief would be of valuable assistance to the court and the applicant had demonstrated expertise in his field relevant to the Supreme Court.