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)

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 & VP, MK Ibrahim, SC Wanjala, N 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 1. 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; 1. the proven expertise of the person; 2. independence and impartiality of the person; or 3. the public interest involved. 2. 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: 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 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. 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. 3. 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 1. _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._ 2. _No orders as to costs._ Citations **Cases**** _Kenya_** _Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae)_ Petition 12, 11 & 13 of 2021 (Consolidated); [2022] KESC 8 (KLR) - (Applied)_Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others_ Petition 12 of 2013; [2015] KESC 26 (KLR); [2015] eKLR - (Applied)**Statutes**** _Kenya_** Supreme Court Rules, 2020 (cap 9B Sub Leg) rule 19 — (Interpreted)**Texts** Bhatia, G., (2019) _The transformative Constitution : a Radical Biography in Nine Acts_ Gurgaon: Harper Collins PublishersAdvocatesNone mentioned Ruling 1.Upon perusing the notice of motiondated and lodged before this courton August 22, 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 applicantherein, 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 courtgive 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 motionsworn by Dr. Gautam Bhatia and his written submissions dated August 21, 2024to 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,](https://cir.nii.ac.jp/crid/1130566853776391168) 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](/akn/ke/judgment/kesc/2022/8) [“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](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%209B) 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](/akn/ke/judgment/kesc/2015/26) 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](/akn/ke/judgment/kesc/2015/26) 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 August 22, 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 30 TH DAY OF AUGUST, 2024****………………………………………………………****M. K. KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA****………………………………………………………****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 COURT****…………………………………………****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****…………………………………………****I. LENAOLA W. OUKO****JUSTICE OF THE SUPREME COURT**