The Supreme Court has the discretion of allowing amendments to a petition to determine the real questions in dispute

Brief facts

The applicant contended that it filed its appeal without the proceedings of the Court of Appeal and the High Court as they had not been typed by then and that the record of appeal was incomplete without the proceedings of the courts. The applicant further contended that it was necessary to amend the petition of appeal so as to bring out the inadvertently omitted background information on the matters raised in the arbitration and that the information would enable the court to make a determination from a fully informed position.

The applicant argued that the amendment would give the court a wider latitude to either hear and ventilate through the issues raised before the arbitrator and give its final determination or remit the same back to the arbitrator for a fresh hearing. The applicant stated that application ought to be allowed in the spirit of the courts judicial authority under article 159 of Constitution of Kenya, 2010 (Constitution) and that no prejudice would be suffered by the respondent should the orders sought be granted. The applicant finally contended that the amendment was necessary so as to bring out the background information and material and that the information had a direct bearing on the main issue of the appeal. 

Issues

1. Whether the Supreme Court had discretion to allow amendments to a petition to determine the real questions in dispute. 
2. Whether the Supreme Court could delve into the merits or the likelihood of success of a matter in an application to amend a petition and to file a supplementary record of appeal. 

Held

1. The provisions of section 21(2) of the Supreme Court Act, 2011 and rule 3(5) of the Supreme Court Rules, 2020 granted the court inherent power to make any ancillary or interlocutory orders as may be necessary for the ends of justice. The court therefore had discretion to allow amendments to determine the real questions in dispute and to do substantial justice. Thus, the purpose of any amendment was to define the real question in controversy and the respondent would, in any event, have an opportunity to respond to the same.
2. The court had powers to grant leave to file a supplementary record under rule 40(4) of the Supreme Court Rules, 2020, when satisfied that the amendment sought to introduce a critical document that had been omitted.
3. From a perusal of the draft amended petition, the applicant sought to set out the background of what transpired before the arbitrator including an additional prayer. The applicants argument was that it merely intended to place the issues in disputation in perspective to facilitate the just determination of the appeal.
4. In the courts earlier ruling delivered on January 27, 2023 in the instant matter (Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)), the court noted some of the contentions that rendered the appeal arguable. Taking into account the respondents perception as to the nature and extent of issues in the intended appeal, the court, like in the earlier ruling, shall not at that juncture delve into the merits or the likelihood of success. The parties would have ample time to fully ventilate their arguments in line with the courts jurisdiction under article 163(4)(a) of the Constitution. The respondents prejudice to be suffered, if any, would be discernible then.
5. On the leave to file a supplementary record of appeal containing the proceedings of the High Court and Court of Appeal, the same were not available at the time of filing the record of appeal. The unavailability of the proceedings of the superior courts below and the time taken to secure them was not attributed to the fault of the applicant. The respondent had not controverted that limb of argument or demonstrated any likely prejudice if that prayer was granted. That rendered the prayer as one that was merited.
6. The interest of justice was best served by allowing the amendment of the petition and for the petitioner to file the supplementary record containing the proceedings before the superior courts below for the purposes of placing before the court all matters in controversy for the courts determination.

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.