Commission on Administrative Justice v Kisumu County Government & 2 others (Reference E001 of 2025) [2025] KESC 51 (KLR) (15 August 2025) (Ruling)

Commission on Administrative Justice v Kisumu County Government & 2 others (Reference E001 of 2025) [2025] KESC 51 (KLR) (15 August 2025) (Ruling) Neutral citation: [2025] KESC 51 (KLR) Republic of Kenya In the Supreme Court of Kenya Reference E001 of 2025 PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ August 15, 2025 Between Commission On Administrative Justice Applicant and Kisumu County Government 1st Respondent Mombasa County Government 2nd Respondent Judicial Service Commission 3rd Respondent (Being an oral application for admission of the Law Society of Kenya and Katiba Institute as Participants/Interveners in the Reference) Conditions that the Supreme Court considers in applications to admit a party in an Advisory Opinion Reference _The Commission on Administrative Justice (CAJ) sought an advisory opinion under article 163(6) of the Constitution on the scope of its mandate and powers under articles 59(2) and 252. The Supreme Court dismissed CAJ’s oral application to admit the Law Society of Kenya and Katiba Institute as participants, struck out the named respondents for being improperly joined, and made no order as to costs._ Reported by John Wainaina **_Civil Practice and Procedure_** _– advisory opinion reference – admission of parties to an advisory opinion reference – oral application - what were the circumstances under which an oral application be could be made before the Supreme Court - what were the conditions that the Supreme Court considered in an application to admit a party in an Advisory Opinion Reference – Supreme Court Rules, 2020 (Cap 9B Sub Leg) rule 51._ Brief facts The Commission on Administrative Justice filed Reference No. E001 of 2025 seeking the Supreme Court’s advisory opinion on the scope of its constitutional mandate under articles 59(2) and 252. During directions, its counsel orally requested the admission of the Law Society of Kenya and Katiba Institute as participants without a formal application. The Deputy Registrar referred the request to the Court for determination under Rule 51 of the Supreme Court Rules, 2020. Issues 1. What were the circumstances under which an oral application could be made before the Supreme Court? 2. What were the conditions that the Supreme Court considered in an application to admit a party in an Advisory Opinion Reference? Held 1. Ordinarily, all applications to the Supreme Court ought to be made in writing and filed under the relevant Supreme Court Rules. Oral applications could only be made in limited circumstances and mostly in open Court and where a formal written, reasoned ruling of the Supreme Court supported by the law and authorities could not be required. 2. An applicant that sought the admission of a participant to a Reference must comply with rule 51 of the Supreme Court Rules, 2020 (the Rules) which provided that an applicant could propose such admission or the Court could on its own motion identify persons whose participation was required for purposes of a fair determination of the questions posed in a reference. Whereas no specific procedure was outlined in rule 51, it would be expected that an applicant, in making a proposal for admission of a participant to a reference, ought to disclose the purpose for which the proposal was made, by way of a formal application with the intended participants served, and expected to appear and indicate their willingness or otherwise to participate in a reference. 3. Rule 51 of the Rules did not envisage a situation where an applicant may name any party as a respondent or interested party or even an intervener because Advisory Opinion References were not ordinary civil or adversarial proceedings hence the edict in rule 51(5) that applications for joinder of interested parties shall not be allowed. 4. Parties with proven expertise on the subject of a Reference could apply to be joined as _amicus curiae_ but such a party had to satisfy the Supreme 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 must consider the proven expertise of the person, their independence and impartiality, and the public interest involved. 5. 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 Law Society of Kenya and Katiba Institute contended that they had statutory and/or expert subject mandates that would assist the Supreme Court in answering the questions posed by the applicant in the Reference. Such a bare proposal and without a clear juxtaposition of the mandates of the two agencies with the issues in the Reference would not attract a favorable exercise of the court’s discretion. Further, without highlighting their relationship, if any, with the applicant and the direction of their participation, then the guiding principles for admission of subject experts as _amici curiae_(friend of the court) in references would not have been met. The applicant ought to file a formal application setting out their expertise, independence, impartiality, and neutrality in the matter. _Applicant’s oral proposal dismissed._ Orders 1. _The 1 st, 2nd and 3rd respondents were struck off from the reference._ 2. _No orders as to costs._ Citations **Cases**** _Kenya_** 1. _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; [2024] KESC 55 (KLR) (Consolidated) - (Explained) 2. _Trusted Society of Human Rights Alliance v Matemo & 5 others_ Petition 12 of 2013; [2014] KESC 32 (KLR) - (Explained) **Statutes**** _Kenya_** 1. Access to Information Act (cap 7M) section 23(1)(a) - (Interpreted) 2. Commission on Administrative Justice Act (cap 7J) sections 26, 27, 29- (Interpreted) 3. Constitution of Kenya articles 59(2); 163(6); 252 - (Interpreted) 4. Supreme Court Rules, 2020 (cap 9B Sub Leg) rules 19, 51- (Interpreted) Advocates _Mr. Ochiel Dudley_ for the applicant. Ruling Representation:Mr Ochiel Dudley(Advocate for Commission on the Administrative Justice-the applicant)No appearance for the 1st, 2nd & 3rd respondents 1.Noting that the applicant, Commission on Administrative Justice (CAJ), by way of Reference No E001 of 2025, dated March 12, 2025 and filed on March 17, 2025, seeks to invoke this court’s advisory opinion jurisdiction under article 163(6) of the [Constitution](/akn/ke/act/2010/constitution) on the following questions:i.What is the extent of the CAJ’s mandate, functions, and powers under article 59(2) and 252 of the [Constitution](/akn/ke/act/2010/constitution) concerning county government officers, state officers, or constitutional commissioners?ii.In the Vision 2030 Delivery Board case, was the Supreme Court to, or did it consider, or interpret the extent of CAJ’s mandate, functions, and powers under article 59(2) of the [Constitution](/akn/ke/act/2010/constitution)? In that case, was the Vision 2030 Delivery Board case decided _per incuriam_? Could a narrow reading of the Vision 2030 Delivery Board case affect CAJ’s ability to give binding directives that remediate complaints against county government officers, state officers, or constitutional commissioners?iii.What are the limits under article 252(3)(a) of the [Constitution](/akn/ke/act/2010/constitution) and sections 26,27, and 29 of the [Commission on Administrative Justice Act](/akn/ke/act/2011/23), cap 71, on CAJ's power to issue summons to a witness from county government offices, state officers, or constitutional commissioners?iv.What are the limits under section 23(1)(a) of the [Access to Information Act](/akn/ke/act/2016/31), 2016 on CAJ’s power to issue summons or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission over county government officers, state officers, or constitutional commissioners?v.Exercising the powers in (iii) and (iv) can the CAJ summon county government officers, state officers, or constitutional commissioners? and; 2.Taking into account that, at paragraph 84 of the reference, the applicant proposed that the Law Society of Kenya and Katiba Institute be admitted as participants/ interveners, based on their respective statutory and expert standing, to assist the court in the administration of justice and provide subject matter expertise and; 3.Further noting that, when the reference came up for directions on April 3, 2025 before the Deputy Registrar of the court, learned counsel for the applicant, Mr Ochiel, orally and without a formal application on record, urged the court to consider admitting the Law Society of Kenya and Katiba Institute as participants/Interveners in the reference and; 4.Noting that, on that date, the Deputy Registrar referred the determination of the oral application for admission of the proposed participants/interveners to the court hence this ruling. And aware that the oral application has not been opposed, We now opine and determine as follows:i.Ordinarily, all applications to this court ought to be made in writing and filed under the relevant rules of the court. Oral applications may only be made in limited circumstances and mostly in open court and where a formal written, reasoned ruling of the court supported by the law and authorities may not be required.ii.An applicant seeking the admission of a participant to a Reference must comply with rule 51 of the [Supreme Court Rules](/akn/ke/act/ln/2020/101/eng@2022-12-31), 2020 which provides that an applicant may propose such admission or the court may on its own motion identify persons whose participation is required for purposes of a fa+ir determination of the questions posed in a reference.iii.Whereas no specific procedure is outlined in rule 51 aforesaid, it would be expected that an applicant, in making a proposal for admission of a participant to a reference, ought to disclose the purpose for which the proposal is made, by way of a formal application with the intended participant(s) served, and expected to appear and indicate their willingness or otherwise to participate in a reference.iv.Rule 51 does not envisage a situation where an applicant may name any party as a respondent or interested party or even an intervener because Advisory Opinion References are not ordinary civil or adversarial proceedings hence the edict in rule 51(5) that applications for joinder of interested parties shall not be allowed.v.In references before this court, precedent has shown that parties with proven expertise on the subject of a reference may apply to be joined as amicus curiae but such a party has to satisfy this court that he or she has satisfied the legal requirements for such an application. In this context, rule 19 of the [Supreme Court Rules](/akn/ke/act/ln/2020/101/eng@2022-12-31), 2020 provides that, before admitting a person as a friend of the court, the court must consider the proven expertise of the person, their independence and impartiality, and the public interest involved. This position was emphasized by this court in [Cabinet Secretary for National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae)](/akn/ke/judgment/kesc/2024/55) Petition (Application) E031 of 2024 & Petition E032 & E033 of 2024 (consolidated) [2024] KESC 55 (KLR) wherein we stated thus:“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.”vi.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 ](/akn/ke/judgment/kesc/2014/32)[others](/akn/ke/judgment/kesc/2014/32) 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 an 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 ”vii.In the present reference, and noting the above guiding principles, we note that Mr Ochiel, learned counsel for the applicant stated before the Deputy Registrar of this court that, the Law Society of Kenya and Katiba Institute have statutory and/or expert subject mandates that would assist this court in answering the questions posed by the applicant in the reference. On our part, such a bare proposal and without a clear juxtaposition of the mandates of the two agencies with the issues in the Reference will not attract a favorable exercise of our discretion. Further, without highlighting their relationship, if any, with the applicant and the direction of their participation, then the guiding principles for admission of subject experts as _amici curiae_ in References would not have been met as enumerated in [Trusted Society of Human Rights Alliance](/akn/ke/judgment/kesc/2014/32) (supra).viii.Should the proposed participants be mindful of joining as _amici curiae_ in this matter, as seems to be the proposal by the applicant, then they ought to file a formal application setting out their expertise, independence, impartiality, and neutrality in the matter.ix.Although the issue was not raised by the applicant, we note that in the Reference, Kisumu County Government, Mombasa County Government and the Judicial Service Commission have been listed as 1st, 2nd and 3rd respondents. For reasons given above, and noting rule 51 aforesaid, parties called respondents are not known to the nomenclature of references in as far as the rules of this court is concerned. 5.Consequently,and for the reasons aforesaid, we make the following orders:i.The applicant’s oral proposal to admit the Law Society of Kenya and Katiba Institute as participants/interveners in the reference dated March 12, 2025 and filed on March 17, 2025 is hereby dismissed;ii.The 1st, 2nd and 3rd respondents are hereby struck- off from the reference and;iii.We make no orders as to costs. It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 15 TH DAY OF AUGUST, 2025****................................................****P.M MWILU****DEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT****................................................****M.K IBRAHIM****JUSTICE OF THE SUPREME COURT****................................................****S.C. WANJALA****JUSTICE OF THE SUPREME COUR****................................................****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****................................................****I. LENAOLA****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original.**REGISTRAR,****SUPREME COURT OF KENYA** *[CAJ]: Commission on Administrative Justice *[KESC]: Supreme Court of Kenya *[KLR]: Kenya Law Reports *[SC]: Supreme Court