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)

Citation
Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Intended Amicus Curiae) [2024] KESC 55 (KLR)
Media Neutral Citation
[2024] KESC 55 (KLR)
Court
Supreme Court
Court station
Supreme Court of Kenya
Outcome
Allowed
Case number
Petition (Application) E031 of 2024
Judges
MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, W Ouko
Judgment date
30 August 2024
Language
English
Type
Judgment
Original source file
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Order
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.
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. MWILU DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT………………………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………NJOKI NDUNGU JUSTICE OF THE SUPREME COURT…………………………………………I. LENAOLA W. OUKOJUSTICE OF THE SUPREME COURT
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