Circumstances in which a party can be admitted as amicus curiae in court proceedings.

Brief facts

The Law Society of Kenya sought to be enjoined as amicus curiae in the instant suit. The crux of the petition revolved around the jurisdiction of the Employment and Labour Relations Court (ELRC) vis--vis the jurisdiction of the High Court to entertain disputes that did not emanate from an employer-employee dispute. In particular, the question was whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court or the ELRC. LSK proposed an amicus brief that related to the question of the jurisdiction of the ELRC to determine the aforementioned issues.

Issues

1. What was the role of the amicus curiae (friend of the court) in court proceedings?
2. What conditions did an amicus brief need to fulfill for one to be enjoined as amicus curiae (friend of the court)?
3. Whether the principle that costs followed the event applied to applications to be enjoined as amicus curiae (friend of the court) that were made in the public interest.

Held

1. The role of an amicus curiae in any proceedings was to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty; and the guiding principles for admission of an amicus curiae as set out by rule 19 of the Supreme Court Rules, 2020 and in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR in the following terms:
   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 Constitutions call for resolution of disputes without undue delay. The court may therefore, and on a case- by- case basis, reject amicus briefs that did not comply with the instant principle.
   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.
2. The points of law set out above, which Law Society of Kenya (LSK) intended to advance related to the question of the Employment and Labour Relations Courts (ELRCs) jurisdiction to determine the constitutionality of the NSSF Act, 2013. The arguments in the proposed amicus brief had largely been addressed in one way or another by the parties to the consolidated appeal through their pleadings and/or submissions. 
3. The proposed amicus brief did not introduce novel aspects of the legal issue in question. The motion was not brought within reasonable time. LSK had not met the conditions which would warrant its admission as amicus curiae in the consolidated appeal.
4. Whereas costs generally followed the events, each party was to bear their own costs. That would serve the ends of justice. To order otherwise would have the effect of barring bona fide applications for admission of persons who would assist the court as amicus curiae. The applicant was motivated by public interest to advance the law save that the issues it intended to raise were well covered by the pleadings and submissions on record

Agent in a power of attorney could not be joined as an interested party in a suit in which the principal is a substantive party.

Brief facts

The applicants sought leave to be admitted as interested parties in the instant petition. They sought to be allowed to be granted an opportunity to submit written and oral arguments in the petition. The applicants alleged to be holders of a power of attorney of the 1^st respondent over land that was allegedly the subject of the instant case.

The respondents opposed the application on grounds that the applicants lacked locus standi to approach the court as the 1^st respondent was a substantive party to the proceedings and that the land that they referenced in their application was separate and distinct form the suit property. 

Issues

Whether a holder of a power of attorney could apply to be joined as an interested party in a suit in which the principal was a substantive party to a suit.

Held

1. In determining applications to be joined as an interested party, the Supreme Court was guided by rule 24 of the Supreme Court Rules 2020, and the principles established in  Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others and  Francis Karioki Muruatetu & Another v Republic & 5 Others. 
2. The 1^st respondent, the alleged grantor of the Power of Attorney to the applicants, was at all times an active party to the proceedings before the trial court and at the Court of Appeal. There was no basis upon which the applicants could be admitted as interested parties. 
3. The power of attorney could not be activated on behalf of the very person, who had been and remained a party to the proceedings. The applicants had not set out any personal interest or stake that was clearly identifiable and proximate, or the prejudice they were likely to suffer in case of non-joinder.

A court of law has to be moved under the correct provisions of the law.

Brief facts

The applicant filed the instant appeal seeking to be granted whistle blower award and protection. The applicant contended that he had given his ideas, information and intelligence to the Kenya Revenue Authority to map out and register all landlords and estate property owners and agents to curb tax evaders. He sought compensation for his efforts. His petition before the High Court was dismissed and his first appeal was yet to be determined by the Court of Appeal. Aggrieved by the alleged delay the applicant filed the instant appeal before the Supreme Court. 

Issues

1. Whether the Supreme Court had the jurisdiction to hear and determine matters that were still pending at the Court of Appeal.
2. Whether the Supreme Court could be moved to determine an appeal as a matter of general public importance where the proper procedure had not been followed and where appellant had not cited the correct provisions of the law.

Held

1. The application had not been filed pursuant to the provisions of article 163(4)(a) or (b) of the Constitution, as read together with section 15, 15A and 15B of the Supreme Court Act which granted the Supreme Court the jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as involving general public importance. The application was also not seeking certification or review under article 163(4)(b) of the Constitution.
2. A certification for leave to appeal to the Supreme Court on a matter of general public importance ought to be first filed at the Court of Appeal and a party with the Court of Appeals decision in that regard, was at liberty to seek a review of that decision from the Supreme Court. That was the import of rule 33 of the Supreme Court Rules, 2020.
3. There was neither an appeal nor an intended appeal preferred to the Supreme Court from the Court of Appeal. The applicant had not made reference to any decision by the Court of Appeal in the instant case. The genesis of the matter was High Court Petition No 538 of 2016 filed by the applicant. The same was dismissed and the applicant appealed to the Court of Appeal in Nairobi Civil Appeal No E005 of 2020, which appeal was yet to be heard and determined on its merits. The applicant had instead invoked the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and had sought orders that were not in the nature envisaged under the Constitution or the Supreme Court Act for which the Supreme Court had original jurisdiction.
4. Rules 7 and 33 of the Supreme Court Rules quoted by the applicant were not reflected in the prayers sought by the applicant or the grounds in support of the application. Rule 7 related to the sittings of the Supreme Court while rule 33 related to certification of a matter as involving general public importance, which the applicant had not complied with. A court of law had to be moved under the correct provisions of the law.

Conditions precedent to adduce additional evidence before the Supreme Court

Brief facts

The plaintiff had filed an application for waiver of fees that had been dismissed by the Registrar of the Supreme Court. Aggrieved the plaintiff filed for review before a single judge of the Supreme Court that was aggrieved. Further aggrieved, the plaintiff filed the instant application.

Issues

Whether the Supreme Court had the jurisdiction to review a decision by a single judge of the Supreme Court in a review of a decision by the Registrar of the Supreme Court to deny waiver of fees. 

Held

1. Rule 63 (2) of the Supreme Court Rules, 2020 conferred powers on the Registrar to entertain an application for request for waiver of fees. Any party aggrieved by the decision of the Registrar was permitted to apply for review to a single judge whose decision shall be final by dint of rule 6(2) and (3) of the Supreme Court Rules, 2020. The applicant had failed to invoke that procedure and instead filed a motion directly to the court seeking waiver of court fees to prosecute his application. While aware that the applicant was acting in person and may not be aware of the correct procedure, the Supreme Court was constrained not to grant his application.
2. The instant application sought to review the decision of a single judge emanating from a decision of the Registrar. The Deputy Registrar of the Supreme Court had dismissed the applicants plea to lodge his pleadings and a single judge of the Supreme Court had on February 17, 2023 declined to review that decision. That decision was final. Granting the instant application would be an action in vain. The Supreme Court had no jurisdiction to revisit that decision. The application lacked merit.

Proof of adverse possession is through interrogation of evidence and thus not a question to be set forth as a matter of general public importance

Brief facts

The instant application sought the review of the ruling and orders of the Court of Appeal dismissing the application for grant of certification. Among the orders sought by the applicants were; a certificate that the applicants' intended appeal raised a matter of general public importance and that substantial miscarriage of justice may occur if an appeal was not lodged against the judgment delivered by the Court of Appeal.

The applicants had instituted their claim through an originating summons where they sought orders under the doctrine of adverse possession in relation to the suit property. The High Court dismissed the applicants action on the ground that it had failed to prove the claim of adverse possession. Subsequently, the applicants filed an appeal to the Court of Appeal which upheld the decision of the High Court and dismissed the appeal. The applicants aggrieved by the judgment of the Court of Appeal sought certification to appeal to the instant court. The Court of Appeal dismissed the application for certification.

The applicants contended that the Court of Appeal failed to appreciate the gravamen of the application; and that the main issue that was yet to receive a firm and jurisprudence-setting address by the instant court was the interplay between the doctrine of adverse possession and entry into a property pursuant to a sale agreement that was not completed by no fault of the purchaser. The applicants urged that it was of importance to a sufficiently large section of the public; the point of law transcended the facts of the individual case as there were numerous other cases that had different outcomes with respect to the same issue and had a significant bearing on the public interest. 

Issues

Whether adverse possession was a question that could be set forth as a matter of general public importance capable of appeal at the Supreme Court. 

Held

1. Under article 163(4) and (5) of the Constitution of Kenya, 2010 (Constitution) appeals lay from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation and application of the Constitution and in any other case in which the Supreme Court or the Court of Appeal certified that a matter of general public importance was involved. A certification by the Court of Appeal may be reviewed by the Supreme Court, and either affirmed, varied or overturned. Under section 15B of the Supreme Court Act, 2011 as read with rule 33 of the Supreme Court Rules 2020, an aggrieved party may apply by way of originating motion to the court for review within fourteen days.
2. The applicants claim was solely premised on adverse possession. In Malcom Bell v Toroitich Arap Moi, Sup Ct Appl No 1 of 2013 [2013] eKLR (Malcom Bell case), the court held that what constituted adverse possession had been answered time and again by the superior courts. The Limitation of Actions Act at sections 7, 13, 17 and 38 provided the procedure that an applicant should undertake to ascertain a claim for adverse possession. Adverse possession was also an issue that was normally proven through interrogation of evidence in a particular case therefore not a question to be set forth as a matter of general public importance.
3. While acknowledging that there was need to align past decisions with regard to the question of when time starts running for purposes of adverse possessory rights, so as to create consistency, the court in the Malcom Bell case held that it was a straightforward issue, which lent itself to resolution on the basis of a review of factual scenarios, and a review of the decisions of the superior courts rendered over the years; and on that basis the Court of Appeal had power to canvass the legal principles and to settle the technicality of the law, for the time being. Such a scenario fell outside the profile of a matter of general public importance.
4. The dispute at the trial court and the Court of Appeal only related to the dispute between applicant and the 1^st respondent. The same did not encompass the prevalence of such agreements in informal settlements. Therefore, it could not be said to be a matter of public interest. The Court of Appeal in its judgment held that once applicant took possession of the suit property pursuant to the alleged agreement for sale, that in itself negated a claim based on adverse possession because the possession would have been with the consent of 1^st respondent. That equally resolved the question on the parameters of the doctrine adverse possession where the purchase price under the sale agreement was paid in full but the sale was not completed.
5. The issue whether adverse possession amounted to a right to property under article 40 of the Constitution was not raised by the applicants in the trial court and the Court of Appeal, and, that issue could not be raised at that stage hence the question did not meet the threshold to be a matter of general public importance worthy of the courts appellate jurisdiction. Further, that question had been skewed and or put differently to the question determined by the Court of Appeal in Mtana Lewa v Kahindi Ngala Mwahindi, Civil Appeal No 56 of 2014; [2015] eKLR. In the case the main issue for contention was whether sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act were not in contravention of article 40(2) (a) and (b) of the Constitution. The Court of Appeal in its determination held that the doctrine of adverse possession was neither an arbitrary nor an unconstitutional limitation of the right to property.
6. The applicants had restated the same arguments set out in its application at the Court of Appeal. They did not seek to distinguish how the Court of Appeal erred and/or arrived at an incorrect determination. The Court of Appeal correctly applied the principles in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone, SC Appl No 4 of 2012; [2013] eKLR and entered a proper determination in dismissing the application.