JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae) (Petition (Application) 11 of 2020) [2021] KESC 48 (KLR) (16 July 2021) (Ruling)

JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Intended Amicus Curiae) (Petition (Application) 11 of 2020) [2021] KESC 48 (KLR) (16 July 2021) (Ruling) JOO v MBO; Federation of Women Lawyers (Intended Interested Party); Law Society of Kenya & 3 others (Amici Curiae) [2021] eKLR Neutral citation: [2021] KESC 48 (KLR) Republic of Kenya In the Supreme Court of Kenya Petition (Application) 11 of 2020 PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ July 16, 2021 Between JOO Petitioner and MBO Respondent and Federation of Women Lawyers Intended Interested Party and Law Society of Kenya Intended Amicus Curiae Kenya Legal and Ethical Issues Network on HIV & Aids (KELIN) Intended Amicus Curiae Initiative for Strategic Litigation in Africa(ISLA) Intended Amicus Curiae Human Rights Watch (HRW) Intended Amicus Curiae Supreme Court's discretion to enjoin a party in a capacity different from that sought. _The case emphasized the point that admission as amicus curiae was a matter of discretion and a privilege, not a right. An intended amicus needed to show neutrality, demonstrate expertise or knowledge relevant to the issues at hand, and ensure that their participation would not prejudice the primary parties or distort the proceedings. The Court reserved the power to summarily evaluate amicus applications and to reject applications that would crowd the proceedings or divert attention from the primary issues_ Reported by Diana Mutunga **_Civil Practice & Procedure _**_– parties – parties to a suit – where applicant applied to be enjoined as interested party in the proceedings before court - where applicant applied to be enjoined as amicus in the proceedings before court – circumstances under which a party can be enjoined in a capacity different from that sought – Supreme Court Rules, rule 19; 25_ Brief facts Before the Court were three applications seeking enjoinment in the matter. The first application, seeking enjoinment as an Interested Party was filed by the Federation of Women Lawyers (FIDA Kenya), and was anchored on Rules 24 and 31 of the Supreme Court Rules, 2020, while the second application, seeking enjoinment as _amicus curiae_ was filed by the Law Society of Kenya (LSK), and was grounded in Rules 19 and 31 of the Supreme Court Rules, 2020. The third application sought to enjoin the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Initiative for Strategic Litigation in Africa (ISLA), and Human Rights Watch (HRW) as amici curiae.FIDA Kenya submitted that it sought to assist the Court in interpreting Article 45(3) of the Constitution, arguing that it envisaged equality in matrimonial property distribution. FIDA Kenya further proposed to provide comparative jurisprudence and insights from international legal instruments ratified by Kenya to support their argument for a 50:50 distribution matrix.The LSK submitted that it had substantial expertise in constitutional and family law and aimed to assist the Court in interpreting the Constitution by providing relevant legal perspectives and comparative foreign jurisprudence. The LSK underscored its independence, impartiality, and lack of connection to either party.The third set of applicants argued that they met the criteria for enjoinment as _amici curiae_ based on their proven expertise in advocating for women's rights, land, and property rights, and their prior participation as amici in similar matters before Kenyan courts. All applicants emphasized that their contributions would provide neutral, relevant, and informed perspectives essential to the Court’s determination of the issues at hand. Issues 1. Whether FIDA Kenya qualifies to be enjoined as an interested party under Rule 25 of the Supreme Court Rules 2. Whether the Law Society of Kenya (LSK), KELIN, ISLA, and HRW qualify for admission as amicus curiae 3. Whether the court has discretion to admit a party in a different capacity where it does not meet the criteria for admission in the capacity sought Relevant provisions of the Law **Supreme Court Rules, 2020****Rule 19**(1) The Court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.(2)The Court shall before admitting a person as a friend of the Court, consider— 1. proven expertise of the person. 2. independence and impartiality of the person; or 3. the public interest. **Rule 25**(1)A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.(2)An application under sub-rule (1) shall include— 1. a description of the interested party; 2. a depiction of such prejudice as the interested party would suffer if the intervention was denied; and 3. the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.” Held 1. While FIDA Kenya did not qualify for enjoinment as an interested party under the Supreme Court Rules, 2020, its submissions demonstrated suitability as _amicus curiae_. It's expertise in public interest litigation and matters of matrimonial property distribution would provide additional material beneficial to the resolution of the case. 2. Ordinarily, the Court would not enjoin a party in proceedings in a capacity different from that which they had sought. A party that sought to be enjoined as an interested party had to demonstrate having met the prerequisites of Rule 25 of the _Supreme Court Rules_ , failing which they were not to be enjoined whether as interested parties or amicus curiae. Likewise, a party that applied to be enjoined as amicus curiae had to prove that they had complied with the requisite conditions. An applicant should have sought to be enjoined in a capacity that was suitable for him/her. It was in view of the unique, and public-interest nature of the matter, that the Court was inclined to enjoin FIDA Kenya in the capacity of _amicus curiae_ ; it was not as a matter of course. 3. The Court reiterated the principles set out in the _Mumo Matemu_ and _Muruatetu_ cases, emphasizing that admission as _amicus curiae_ was a matter of discretion and a privilege, not a right. An intended _amicus_ needed to show neutrality, demonstrate expertise or knowledge relevant to the issues at hand, and ensure that their participation would not prejudice the primary parties or distort the proceedings. The Court reserved the power to summarily evaluate _amicus_ applications and to reject applications that would crowd the proceedings or divert attention from the primary issues. 4. LSK met the criteria for admission as _amicus curiae_ , given its statutory mandate to assist courts in legal matters and its significant expertise in constitutional and family law. It's submissions on Article 45(3) of the Constitution, particularly on apportionment and division of matrimonial property, would provide valuable guidance. The Court found that LSK had demonstrated impartiality and had no connection to either party in the matter, thereby meeting the neutrality requirement. 5. However, the Court declined to admit KELIN, ISLA, and HRW as _amicus curiae_. It held that their submissions, while highlighting their expertise in women’s rights, land rights, and succession reforms, were not sufficiently connected to the specific issues under consideration in the case. The Court emphasized that admission as _amicus curiae_ must align with the core principles of neutrality, relevance, and the absence of prejudice to the primary parties. Participation by _amicus_ should not overwhelm the proceedings or unduly limit the time and focus available to the primary parties. 6. The role of _amicus curiae_ was to assist the Court by providing additional material and perspectives that enhance the adjudication of legal issues without advocating for a specific outcome. Admission as an interested party, on the other hand, required a demonstrable stake in the matter and was subject to stricter scrutiny under the Supreme Court Rules, 2020. The Court underscored that these distinctions ensured the integrity and efficiency of judicial proceedings. _Application partly allowed._ Orders 1. _The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) was partly disallowed to the extent that they sought to be enjoined as interested party._ 2. _The Federation of Women Lawyers (FIDA Kenya), the intended interested party was enjoined as 1st amicus curiae._ 3. _The application by the Law Society of Kenya was allowed and the applicant admitted as the 2nd amicus curiae._ 4. _The application by KELIN, ISLA and HRW as intended amici curiae was dismissed._ 5. _Participation by the enjoined parties was limited to the filing of written submissions._ 6. _There were no Orders as to costs._ Citations **Cases**** _Kenya_** 1. _Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)_ Petition 15 & 16 of 2015 (Consolidated); [2017] KESC 2 (KLR) - (Followed) 2. _Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others_ Petition 12 of 2013; [2015] KESC 26 (KLR) - (Followed) **Statutes**** _Kenya_** 1. Constitution of Kenya article 45(3) - (Interpreted) 2. Supreme Court Rules, 2020 (cap 9B sub leg) rules 19, 24, 31- (Interpreted) AdvocatesNone mentioned Ruling A. Introduction 1.Before this court are three applications severally seeking enjoinment in this matter. 2.The first application by the Federation of Women Lawyers (FIDA Kenya) is dated September 24, 2020 and lodged on October 6, 2020. The same is anchored on rule 24 and 31 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) and is supported by an affidavit sworn by Anne W. Ireri on even date and seeks enjoinment as an interested party in the Petition. 3.The Law Society of Kenya (LSK) has filed the second application dated October 31, 2020 and lodged on December 1, 2020, seeking enjoinment as amicus curiae. It is anchored on the provisions of rule 19 and 31 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) and all other enabling provision of the law. The application is supported by the annexed affidavit of Mercy Wambua, the applicant’s Chief Executive Officer. 4The third application dated October 7, 2020, and lodged on October 19, 2020, seeks to enjoin in this matter as amici curiae, the Kenya Legal & Ethical Issues Network on HIV and AIDS Network (KELIN), Initiative for Strategic Litigation in Africa (ISLA), and Human Rights Watch (HRW). B. Parties Respective Submissions (i) The intended interested party’s submissions 5.In its submissions dated September 24, 2020, the 1st intended interested party states that it is involved in several cases touching on the interpretation of article 45(3) of the [Constitution](/akn/ke/act/2010/constitution) whose spirit envisages equality of parties, including their propriety rights, before, during and at the dissolution of marriage. They argue that their submissions are different from those of the substantive parties as they intend to demonstrate that article 45(3) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng@2010-09-03) speaks to equality and should be used as a distribution matrix for matrimonial property. Further, that they will proffer comparative jurisprudence from other jurisdictions and perspectives from international legal instruments that have been ratified by Kenya which support the 50:50 distribution matrix enshrined in article 45(3) of the [Constitution.](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng@2010-09-03) Finally, they urge that the issues on appeal before this court are of great public interest whose judgement would affect those who are not party to this matter and this interest merits their participation. (ii) The 1st intended amicus curiae’s submissions 6.In its submissions dated October 31, 2020, the LSK contends that other than meeting the criteria laid out in rule 19(2) of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022), it has significant experience and expertise on constitutional and family law due to its constant interaction with members of the public and the courts. They urge that their observations will be relevant in the interpretation and application of relevant constitutional principles, Kenyan jurisprudence, and comparative foreign law. It is their contention that the LSK has a proven track record of independence and impartiality, exercising only fidelity to the rule of law with no connection to either party in this matter. (iii) The 2nd, 3rd and 4th intended amicus curiae’s submissions 7.In their submissions dated October 7, 2020, the applicants contend that they meet the criteria set out in rule 19 of this [Court’s Rules](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) and the guidelines given by this court. They submit that they are qualified and experienced in advocating for women, land, and property rights as evidenced in their participation in previously admitted matters as amicus curiae in proceedings before Kenyan Courts. (iv) The appellant/respondent 8.The appellant is opposed to the application by FIDA and have on record submissions dated and filed on October 8, 2020. He argues that the application is incompetent and defective as the supporting affidavit is sworn without the authority of the applicant. Further, that the application lacks merit as it does not meet the conditions set out under rule 24 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022), fails to show what prejudice the applicant will suffer if the application is denied, and how the proposed submissions by the applicant will be useful and different from those of the principal parties. 9.The appellant urges that the only reason advanced by the applicant are the ongoing matrimonial property cases, which they should not be allowed to litigate through the instant petition. They argue that those cases will be guided by the decision this court on the issues pleaded and that the applicant ought not to be enjoined in these proceedings merely because similar questions have been raised in other unrelated matters, they are involved in. The appellant seeks the court to dismiss the application. 10.He is similarly opposed to the application by 2nd, 3rd & 4th intended amici curiae vide submissions dated October 8, 2020, contending that it lacks merit as it does not meet the conditions set out under rule 19(2) of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) as well as those outlined by this court. He argues that applicants have not demonstrated their expertise, impartiality, or that their intended submissions are novel and address issues not yet covered by the principal parties. He contends that the applicants deal with women's sexual rights, right of inheritance and interests in land which are not issues for determination in this petition. 11.The appellant has not opposed the application by the Law Society of Kenya. 12.We have taken note that the respondent in the Petition, MBO, did not file her response to any of the three applications. 13.The [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) provide that:24.(1)A person may, within seven days of filing a response in any proceedings, apply for leave to be joined as an interested party.(2)An application under sub-rule (1) shall include—(a)a description of the interested party;(b)a depiction of such prejudice as the interested party would suffer if the intervention was denied; and(c)the grounds or submissions to be advanced by the interested party, their relevance to the proceedings, and their departures from the standpoint of the parties.” 14.This court has laid down the principles for enjoinment as an interested party in the case of [Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others](/akn/ke/judgment/kesc/2015/26), SC Petition (Application) No 12 of 2013; [2014] eKLR where it was stated:(17)Suffice it to say that while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the courtroom.(18)Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. On the other hand, an amicus is only interested in the court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public expectation. As a ‘friend’ of the court, his cause is to ensure that a legal and legitimate decision is achieved.” 15.Similarly, in the case of [Francis Karioki Muruatetu & another v Republic & 5 others](/akn/ke/judgment/kesc/2017/2), SC Petition No 15 as consolidated with SC Petition No 16 of 2013 [2016] eKLR (_Muruatetu_ case) at paragraph [37], the court set out applicable principles where a party seeks to be enjoined in proceedings as an interested party as follows:… One must move the court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:(i)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.(ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.(iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.” 16.Applying these principles to the matter at hand, we find that while Federation of Women Lawyers (FIDA Kenya) has applied for enjoinment as interested party, they do not qualify in line with the criteria set out in the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022) and the principles we have previously laid with relation to admission of interested parties. We therefore decline to admit them as such.Nonetheless, having looked carefully at their submissions, we are convinced that they are more suited to the role of amicus curiae, and we state so believing that their participation will bring on board the much-needed additional material on the subject of the petition. Further, their involvement in public interest litigation in matters touching on issues related to the propriety rights of women and their active involvement in litigation in matters concerning the distribution of matrimonial property will aid the court in arriving at a judicious determination. In finding so, we are guided by our decision in the [Muruatetu](/akn/ke/judgment/kesc/2017/2) case where we looked into the court’s inherent power to admit amicus curiae and experts and admitted an intended interested party as amicus curiae stating:(61)Ordinarily, this court will not enjoin a party in proceedings in a capacity different from that which they had sought. A party seeking to be enjoined as an interested party has to demonstrate having met the prerequisites of rule 25 of the [Supreme Court Rules](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022), failing which they are not to be enjoined whether as interested parties or amicus curiae. Likewise, a party that applies to be enjoined as amicus curiae has to prove that they have complied with the requisite conditions set out in _Mumo Matemu_. An applicant should seek to be enjoined in a capacity that is suitable for him/her. It is in view of the unique, and public-interest nature of this matter, that we are inclined to enjoin those parties that sought enjoinment as interveners, in the capacity of amici curiae; it is not as a matter of course.” 17.Consequently, we find that the applicant, FIDA, be enjoined in the capacity of amicus curiae. 18.Through the other two applications, three parties seek to be enjoined in this matter as amicus curiae. The provisions of the law for enjoinment as amicus curiae is found under rule 19 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/2011/7/eng@2022), which provides as follows:19.(1)The court may on its own motion, or at the request of any party, permit a person with particular expertise to appear in any matter as a friend of the Court.(2)The court shall before admitting a person as a friend of the court, consider—a.proven expertise of the person.b.independence and impartiality of the person; orc.the public interest.(3)Any fees or expenses incurred by a person appointed by the court as a friend of the court on its own motion, shall be paid out of the Judiciary Fund, in accordance with a scale determined by the President.(4)An application to be admitted as an amicus or a friend of the court shall be done within 7 days upon filing of a response in any proceedings before the court.” 19.In the Mumo Matemu case the court set guiding principles to be applied in consideration of an amicus application where it stated that the Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae reserving the right to summarily examine amicus motions, accompanied by amicus briefs without any oral hearing. In the [Muruatetu](/akn/ke/judgment/kesc/2017/2) case it was stated that admission as amicus curiae is a matter of discretion and a privilege granted to an intended amicus. Further, that such an amicus must show that it is neutral and should have no discernible direct or indirect interest in the matter. 20.Guided by the foregoing principles we note that the LSK is mandated to assist the courts in matters relating to law generally and that it is their intention to submit on apportionment and division of matrimonial property in the terms of article 45(3) of the [Constitution of Kenya](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng@2010-09-03) . We are therefore satisfied that they will assist this Court in reaching a fair determination of the issues raised in the Petition and that there is no prejudice to be caused to any party if LSK is admitted as amicus curiae. 21.On their part, while the 2nd, 3rd and 4th intended amici curiae urge that they are experts in advocating for women, land, and property rights, and have participated in various platforms including experience in women’s sexual rights, mediation before the Luo Council of Elders on Land Ownership, capacity building, and reforms in the Law of Succession in advancement of these rights, we do not see how their admission is crucial to the matter at hand. 22.We must emphasize that admission as _amicus curiae_ is a matter of privilege rather than of right and that the Court must always guard against diverting the proceedings in the matter. It is not automatic that every applicant is enjoined as _amicus curiae_ or interested party. We are wary of crowding the primary parties to the matter by bringing on board many additional parties, to the extent that the time given to primary parties to make their case is taken up by parties on the periphery. We do not see how the 2nd, 3rd and 4th intended _amici curiae_ applicants stand to be prejudiced should they not be enjoined, and in any event, should they wish to voice their opinions, they can always liaise with parties who have already been admitted as _amicus_. C. Orders 23.Having stated as above, we shall exercise discretion and make the following Orders:(i)The application by the intended interested party, Federation of Women Lawyers (FIDA Kenya) is partly disallowed to the extent that they seek to be enjoined as interested party.(ii)The Federation of Women Lawyers (FIDA Kenya), the intended interested party is hereby enjoined as 1st amicus curiae.(iii)The application by the Law Society of Kenya is allowed and the applicant is hereby admitted as the 2nd amicus curiae.(iv)The application by KELIN, ISLA and HRW as intended amici curiae is dismissed.(v)Participation by the enjoined parties shall be limited to the filing of written submissions.(vi)There shall be no Orders as to costs. **DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY, 2021.****………………****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****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original**REGISTRAR****SUPREME COURT OF KENYA** *[eKLR]: electronic Kenya Law Reports