UPON perusing the Notice of Motion application by the Applicant, Prof. Migai Akech, dated 20th October, 2021 and filed on 22nd October 2021 brought under the provisions of Rules 3, 19(1) and (2), 31 and 50 of the Supreme Court Rules 2020 and Rules 8, 31 and 38 of the Supreme Court (General) Practice Directions, 2020 and the supporting affidavit sworn by the Applicant seeking leave of the Court to appear as amicus curiae in the appeal and to present written and oral submissions by way of an amicus brief and;
UPON considering the Applicant’s grounds in support of his application, his intended amicus brief and the Applicant’s written submissions filed on 22nd October 2021 wherein the Applicant submits that he has the relevant expertise as a professor of law and author of several books and articles on the history of the making of the Constitution and contends that he intends to assist the Court to carefully consider the history of the making of the Constitution given that the history formed the primary basis of the determinations of the High Court and the Court of Appeal on the applicability of the basic structure doctrine in Kenya and the implications of this doctrine for the amendment of the Constitution and in relation to the following arguments:i.That the Court of Appeal endorsed the High Court’s selective and erroneous reading of the history of the making of the 2010 Constitution without interrogating it, thereby denigrating the role that political compromise and the political elites played in the attainment of the 2010 Constitutionii.That it is vital for this Honourable Court to embrace a holistic account of the history of the making of the Constitution of Kenya 2010 given the implications of this history for the applicability of the basic structure doctrine in Kenya and the amendment of this Constitution and;
UPON further arguments by the Applicant that he has filed his application timeously, has demonstrated the relevant qualifications, is neutral in the appeal and has potentially pointed out the relevant fundamental principles as was determined in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others Sup Ct. Petition No. 12 of 2013  eKLR;
AND considering the submissions by the 14th Respondent not opposing the joinder of the Applicant as amicus by submitting that he will undoubtedly assist the Court to develop the law in this area but leaves the question of joinder to the Court and;
FURTHER noting the submissions by the 18th Respondent not opposing the joinder of the Applicant subject to the Court defining the precise roles and limits of his participation as amicus by assigning specific questions of law to research on as was decided in Raila Odinga & 5 Others v Independent Electoral Boundaries Commission & Others Sup. Ct. Petition No. 5 of 2013  eKLR and limiting the participation of the Applicant as amicus to his amicus brief and;
In the above context, WE NOW OPINE as follows:i.An Applicant for joinder as amicus has to satisfy this Court that they have satisfied the legal requirements for joinder. The relevant law is Rule 19 of the Supreme Court Rules 2020. The said Rule provides as follows:ii.The guiding principles applicable in determining an application to be enjoined in that capacity was settled in Trusted Society of Human Rights Alliance v. Mumo Matemu and 5 Others (supra), where the Court on this occasion, pronounced itself on its inherent power to admit amicus curiae and emphasized that;“(i) An amicus brief should be limited to legal arguments.“(ii) 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.“(iii) An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may, therefore, and on a case-by-case basis, reject amicus briefs that do not comply with this principle.“(iv) 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...“(vi) Where, in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue...”We also affirmed the above guiding principles in Francis Karioki Muruatetu & another v. Republic & 5 Others Sup Ct. Petition No. 15 and 16 of 2015  eKLRiii.The role of amici in Court is to aid the Court to arrive at a determination based on the law. We take note that the Applicant wishes to restrict himself to only addressing the history of the making of the Constitution vis-à-vis the basic structure doctrine and its application. We perceive from the application and submissions that the Applicant is neutral on the dispute, and he will restrict his submissions to the issues raised in his amicus brief. We are also of the view that the Applicant’s amicus brief will be of valuable assistance to this Court and the Applicant has demonstrated expertise in his field relevant to this Court. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on joinder of amicus curiae.
HAVING therefore considered the Application, we make the following Orders:a)The application dated 20th October 2021 and lodged on 22nd October 2021 by the intended amicus curiae is allowed.b)The amicus brief attached to the application is deemed as filed and the Applicant shall not make oral submissions at the hearing of the petitions.c)Parties shall bear their own respective costs.
It is so ordered.
DATED and DELIVERED AT NAIROBI this 9TH day of NOVEMBER 2021..........................P. M. MWILUDEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURT..........................M. K. IBRAHIM JUSTICE OF THE SUPREME COURT ..........................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT .............................. I. LENAOLA JUSTICE OF THE SUPREME COURT ..............................W. OUKOJUSTICE OF THE SUPREME COURT I certify that this is a true copy of the originalREGISTRAR, SUPREME COURT OF KENYA