County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) [2021] KESC 66 (KLR)

County Assembly of Kericho County & another v Attorney General & 4 others; Law Society of Kenya (Intended Amicus Curiae) (Reference 3 of 2020) [2021] KESC 66 (KLR) (25 January 2021) (Ruling)

In the matter of an Application by the County Assemblies of Kericho and Nandi Counties [2021] eKLR

Neutral citation: [2021] KESC 66 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Reference 3 of 2020

PM Mwilu, Ag.CJ & Ag. P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

January 25, 2021

In The Matter Of An Application By The County Assemblies Of Kericho And Nandi Counties For An Advisory Opinion Under Article 163(6) Of The Constitution Of Kenya

Between

The County Assembly of Kericho County

1st Applicant

The County Assembly of Nandi County

2nd Applicant

and

Attorney General

1st Interested Party

The Senate

2nd Interested Party

The National assembly

3rd Interested Party

The Independent Electoral and Boundaries Commission

4th Interested Party

Katiba Institute

5th Interested Party

and

Law Society of Kenya

Intended Amicus Curiae

Ruling

A. Introduction 1. Before the Court is an application dated 8th December 2020. It is premised on Rules 19, 31 and 51(2) of the Supreme Court Rules, 2020 and seeks the admission of the Law Society of Kenya (LSK) as amicus curiae in the present Reference.

2. The LSK proposes to submit a brief and address the Court on the following questions:a.How is the theory of a wholistic interpretation and Kenya’s constitutional amendment culture relevant to the Reference?b.What is the link between constitutional supremacy and amendment?c.What is the place of public participation in constitutional amendment?d.What are the general principles governing a free and fair referendum?e.What is the meaning and purpose of the “single-subject rule” and how does it impact the scope, and content of a constitutional amendment Bill?

3. A draft amicus brief has been attached to the affidavit of Mercy Wambua, Chief Executive Officer of the LSK and answers all the above question in detail.

B. The Law 4. Rule 19 of the Supreme Court Rules, 2020 provides as follows: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.Rule 51(6) then provides as follows:51(6) Where a friend of the Court or an expert has been admitted in any proceedings, the Court shall give directions on whether such person shall—a.file written submissions; orb.address the Court orally.

5. On the criteria for admission of a party as amicus curiae in Francis Karioko Muruatetu & anor v Republic & 5 others [2016] eKLR, this Court stated that such admission 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.

C. Analysis And Determination 6. The LSK has submitted that it has met the set criteria for admission as amicus curiae because it has the expertise, experience and knowledge relevant to determination of the Reference; was involved in the amendments of the former Constitution and is therefore familiar with Kenya’s constitutional amendment history; and is neutral and has no connection with either party to the Reference.

7. We note in the above context that the Reference before us raises questions as to the manner in which the Constitution 2010 can be amended including by way of a referendum. The Applicants, the County Assemblies of Kericho and Nandi have thus framed a number of questions including:i.What does the term “approves” in Article 257(6) of the Constitution mean and specifically in the context of a County Assembly?ii.What is the proper and correct procedure that Parliament must invoke in the consideration and passage of an Amendment Bill under Article 257 of the Constitution?iii.What is the requirement of the Constitution in regard to referenda including on whether the questions to be submitted to a referendum are single or multiple.

8. We have considered the application in the context of the law as expressed above and taking into account our decision in Muruatetu (supra) as well as Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2015] eKLR where in the latter we stated that admission of amici curiae is a useful tool in achieving our constitutional mandate to develop the law with the assistance of well informed inputs from parties appearing before us. We have furthermore noted that under Section 4 of the Law Society Act, the LSK is mandated to assist the Courts and the public in matters relating to the law generally and the administration of justice in particular and is therefore made up of, inter alia, experts in constitutional matters.

9. It is also our view that, looking at the Reference before us, there is no prejudice to be caused to any party if LSK is admitted as amicus curiae and we see no partiality expressed in its draft amicus brief. We are also satisfied that the brief will assist this Court in reaching a fair determination of the issues raised in the Reference.

D. Disposition 10. Having stated as above, we shall exercise discretion and Order as follows:i.The Law Society of Kenya is admitted as an amicus curiae.ii.It shall file and serve its Amicus Brief, 7 days after responses are filed by all the Interested Parties.iii.The Law Society of Kenya’s participation shall be limited to the filing of the Amicus Brief aforesaid and it shall not make oral submissions.iv.There shall be no orders as to costs.

11. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JANUARY, 2021……………..…………......................... ……..……………………………………P. M. MWILU M. K. IBRAHIMAg. CHIEF JUSTICE &Ag. PRESIDENT OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT…………………………………………………………………………………S. C. WANJALA NJOKI NDUNGUJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT………………………………………….I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA