[2024] KESC 55 (KLR)

Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae) (Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated)) [2024] KESC 55 (KLR) (30 August 2024) (Ruling)

Neutral citation: [2024] KESC 55 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (Consolidated)

MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

August 30, 2024

Between

The Cabinet Secretary for the National Treasury and Planning

1st Appellant

The Attorney General

2nd Appellant

The National Assembly

3rd Appellant

The Speaker of the National Assembly

4th Appellant

Kenya Revenue Authority

5th Appellant

and

Okiya Omtatah Okoiti

1st Respondent

Eliud Karanja Matindi

2nd Respondent

Michael Kojo Otieno

3rd Respondent

Benson Odiwour Otieno

4th Respondent

Blair Angima Oigoro

5th Respondent

Victor Okuna

6th Respondent

Florence Kanyua Lichoro

7th Respondent

Daniel Otieno Ila

8th Respondent

Rone Achoki Hussein

9th Respondent

Hon Senator Eddy Gicheru Oketch

10th Respondent

Clement Edward Onyango

11th Respondent

Paul Saoke

12th Respondent

Law Society of Kenya

13th Respondent

Azimio La Umoja One Kenya Coalition Party

14th Respondent

Kenya Human Rights Commission

15th Respondent

Katiba Institute

16th Respondent

The Institute for Social Accountability (TISA)

17th Respondent

Transparency International Kenya

18th Respondent

International Commission of Jurists-Kenya (ICJ Kenya)

19th Respondent

Siasa Place

20th Respondent

Tribeless Youth

21st Respondent

Africa Center for Open Governance

22nd Respondent

Robert Gathogo Kamwara

23rd Respondent

Trade Unions Congress of Kenya

24th Respondent

Kenya Medical Practitioners’ Pharmacists and Dentist Union

25th Respondent

Kenya National Union of Nurses

26th Respondent

Kenya Union of Clinical Officers

27th Respondent

Fredrick Onyango Ogola

28th Respondent

Nicholas Kombe

29th Respondent

Whitney Gacheri Micheni

30th Respondent

Stanslous Alusiola

31st Respondent

Herima Chao Mwashigadi

32nd Respondent

Dennis Wendo

33rd Respondent

Mercy Nabwire

34th Respondent

Benard Okelo

35th Respondent

Nancy Otieno

36th Respondent

Mohamed B. Dub

37th Respondent

Universal Corporation Limited

38th Respondent

Cosmos Limited

39th Respondent

ELYS Chemical Industries

40th Respondent

Regal Pharmaceuticals

41st Respondent

Beta Healthcare Limited

42nd Respondent

Dawa Limited

43rd Respondent

Medisel Kenya Limited

44th Respondent

Medivet Products Limited

45th Respondent

Lab And Allied Limited

46th Respondent

Bioppharm Limited

47th Respondent

Biodeal Laboratories Limited

48th Respondent

Zain Pharma Limited

49th Respondent

The Speaker of the Senate

50th Respondent

Consumers Federation of Kenya (COFEK)

51st Respondent

Kenya Export Floriculture Horticulture, and Allied Workers Union

52nd Respondent

Dr Maurice Jumah Okumu

53rd Respondent

and

Dr Gautam Bhatia

Intended Amicus Curiae

(Being an application for Admission of Dr. Gautam Bhatia as Amicus Curiae in the Consolidated Appeals)

Guiding principles for admission of an amicus curiae in a suit

The applicant sought to be admitted in the instant appeals as amicus curiae. The court reiterated the guiding principles for admission of an amicus curiae in a suit.

Reported by Kakai Toili

Civil Practice and Procedure– parties to a suit – amicus curiae - what were the guiding principles for admission of an amicus curiae in a suit - Supreme Court Rules, 2020, rule 19.

Brief facts The applicant sought to be admitted in the instant appeals as amicus curiae. The applicant contended that; he was an expert in comparative constitutional law, and a practicing constitutional lawyer before the Supreme Court of India; and he possessed and had demonstrated his scholarly expertise with regards to the questions that formed the subject matter of the appeal, in particular the doctrine, history, practice and theory of public participation that would assist the court in answering the questions raised in the appeal. The applicant submitted that he was impartial, had no professional relationship with any of the parties involved in the appeal, nor did he have any personal or pecuniary interest in the appeal and its outcome.

Issues What were the guiding principles for admission of an amicus curiae in a suit?

Held

An applicant seeking to be enjoined as amicus curiae had to satisfy the court that he or she had satisfied the legal requirements for such an application. In that context, rule 19 of the Supreme Court Rules, 2020 provided that, before admitting a person as a friend of the court, the court had to consider; the proven expertise of the person;

independence and impartiality of the person; or

the public interest involved.

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. The guiding principles for admission of an amicus curiae were: An amicus brief should be limited to legal arguments.

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.

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’s 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 that principle.

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.

The applicant had, with the necessary precision, set out germane points of law that he intended to address the court on and they resonated with the issues in dispute in the consolidated appeal. The amicus brief would be of valuable assistance to the court in addressing the issues raised in the consolidated appeal and the applicant had demonstrated expertise in the field of comparative constitutional law which was relevant to the appeal. None of the parties to the appeal had raised any issue of bias in the intended brief and there was none on the court’s part and should any arise, the court was quite capable of identifying and rejecting it made its final decision on the appeal.

Application allowed.

Orders

The amicus brief attached to the application was deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.

No orders as to costs.

Citations Cases Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated); [2022] KESC 8 (KLR)) — Mentioned

Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others (Petition 12 of 2013; [2015] KESC 26 (KLR); [2015] eKLR) — Applied

Statutes Supreme Court Rules, 2020 (cap 9B Sub Leg) — rule 19 — Interpreted

Texts Gautam Bhatia (2019), "The transformative constitution : a radical biography in nine acts" (HarperCollins Publishers India)

AdvocatesNone mentioned

Ruling

1. Upon perusing the Notice of Motion dated and lodged before this Court on 22nd August 2024, by Gautam Bhatia seeking, orders inter alia that-a.Dr Gautam Bhatia, the applicant herein, be granted leave to be admitted in the Appeals as amicus curiae.b.Dr Gautam Bhatia, the Applicant herein, be granted leave to present written and oral submissions by way of an Amicus brief in the Appeals.c.Upon granting leave to participate in the proceedings, the Honourable Court give directions on how the amicus curiae shall participate herein on such other or further directions as this Honourable Court may deem fit to give.d.There be no order on costs for or against the amicus curiae.

2. Taking into account the affidavit in support of the Motion sworn by Dr. Gautam Bhatia and his written submissions dated 21st August 2024 to the effect that; the applicant is an expert in comparative constitutional law, and a practicing constitutional lawyer before the Supreme Court of India; he possesses and has demonstrated his scholarly expertise with regards to the questions that form the subject matter of the Appeal, in particular the doctrine, history, practice and theory of public participation that will assist the court in answering the questions raised in the appeal; he is the author of The Transformative Constitution: A Radical Biography in Nine Acts, and of numerous scholarly articles in peer-reviewed comparative constitutional law journals; he has engaged with Kenyan constitutional law in a comparative context for some years and has been previously admitted as amicus curiae before this Court in Attorney-General and Others v David Ndii and Others [“the BBI Case”]; he is the author of Law Making, Political Process, and the State: Transformative Constitutionalism in Kenya – 2010 – 2025 (James Currey 2025, forthcoming), and of ‘The Hydra and the Sword: Constitutional Amendments, Political Process, and the BBI Case in Kenya’ (Global Constitutionalism 2025, forthcoming). In addition to his scholarly work, the applicant has also submitted that he has participated in legal proceedings involving the subject of public participation before the Supreme Court of India and the High Court of Bombay.

3. Further, it has been submitted that the applicant is impartial, has no professional relationship with any of the parties involved in this appeal, nor does he have any personal or pecuniary interest in the appeal and its outcome. That, he only seeks to provide his scholarly expertise in the service of the Court on the questions raised in the appeal that are of great importance to the people and the future of the Republic of Kenya. Specifically, he has urged the point that, if admitted as amicus curiae, he will make submissions, subject to this Court’s directions, on the following issues:a.Whether the national value of public participation entails an obligation upon State organs to give reasons in the event that they choose to reject the suggestions that have emanated from the public.b.If, after one round of public participation, a Bill is substantively amended by the National Assembly, whether there is an obligation to subject the amended provisions and/or new provisions to further public participation.

4. Noting that none of the parties in the consolidated appeals have opposed the application, We now opine and determineas follows;i.An applicant seeking to be enjoined as amicus curiae has to satisfy this Court that he or she has satisfied the legal requirements for such an application. In that context, rule 19 of the Supreme Court Rules 2020 provides that, before admitting a person as a friend of the court, this Court has to consider the proven expertise of the person; independence and impartiality of the person; or the public interest involved.ii.The role of an amicus curiae in any proceedings is to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty and in Trusted Society of Human Rights Alliance v Mumo Matemu & 4 Others SC Petition No 12 of 2023, this Court set out the guiding principles for admission of an amicus curiae in the following terms:“....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....”iii.Amongst the issues in dispute in the consolidated appeal are the place and extent of public participation in the legislative process; whether Parliament can amend bills after they have been subjected to public participation; the parameters and considerations of a declaration of the unconstitutionality of a statute; the orders to be issued upon such a declaration including whether to allow or disallow suspension or otherwise of the declaration to enable remedial action by the offending party.iv.Having considered the proposed amicus brief we note that the applicant has, with the necessary precision, set out germane points of law that he intends to address this court on and they clearly resonate with the issues in dispute in the consolidated appeal. We also perceive that the amicus brief will be of valuable assistance to this Court in addressing the issues raised in the consolidated appeal and that the applicant has demonstrated expertise in the field of comparative constitutional law which we find relevant to the appeal. We further note that none of the parties to the appeal has raised any issue of bias in the intended brief and we see none on our part and should any arise, we are quite capable of identifying and rejecting it as we make our final decision on the appeal. We therefore find that the Applicant has met the criteria set out in Mumo Matemu on admission of amicus curiae.

5. Consequently and for the reasons afore-stated, we make the following Orders:i.The Applicant’s Notice of Motion dated and filed on 22nd August 2024 by the intended amicus curiae is allowed.ii.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.iii.As the motion was not opposed, we make no orders as to costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF AUGUST, 2024………………………………………………………M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA………………………………………………………P.M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT………………………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………NJOKI NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………I. LENAOLA W. OUKOJUSTICE OF THE SUPREME COURT