Winfred Clarkson Otieno Ochieng, Enock Joseph Aura, Kituo Cha Sheria,Kenya Himan Rights Commission,Eliud Karanja Matindi, Mbarak Hamid,Reginald M. J. Oduor, Michael Mutinda Mumo, Otieno Paul Peter, Catherine Mugure Njore, Susan Mbugua, Edah Joan Beuttah & Mary Kathiomi Riungu v Cabinet Secretary, Ministry of Health, Attorney General, Cabinet Secretary, Ministry of Transport,Housing and Infrastructure, Inter-Faith Council on the National Virus to the Coronavirus Pandemic, Ministry of Health, Inspector General of Police,Council of Governors,Pharmacy & Poisons Board, National Assembly of Kenya & Senate of Kenya ; Shanice Wanjiku & Kimberley Atieno Otieno(Interested Parties) ; Kenya Legal & Ethical Issues Network on HIV & AIDS (Kelin)(Intended Amicus Curiae) [2022] KEHC 1542 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
(Coram: A.C. Mrima J.)
CONSTITUTIONAL PETITION NO. E500 OF 2021
(Consolidated with Petition Nos. E505 of 2021, E518 of 2021, E520 of 2021 and E27 of 2021)
BETWEEN
1. WINFRED CLARKSON OTIENO OCHIENG
2. ENOCK JOSEPH AURA
3. KITUO CHA SHERIA
4. KENYA HIMAN RIGHTS COMMISSION
5. ELIUD KARANJA MATINDI
6. MBARAK HAMID
7. DR. REGINALD M. J. ODUOR
8. MICHAEL MUTINDA MUMO
9. OTIENO PAUL PETER
10. CATHERINE MUGURE NJORE
11. SUSAN MBUGUA
12. EDAH JOAN BEUTTAH
13. MARY KATHIOMI RIUNGU.......................................................................................PETITIONERS
VERSUS
1. THE CABINET SECRETARY, MINISTRY OF HEALTH
2. THE HON. ATTORNEY GENERAL
3. CABINET SECRETARY, MINISTRY OF TRANSPORT,HOUSING AND INFRASTRUCTURE
4. INTER-FAITH COUNCIL ON THE NATIONAL VIRUS TO THE CORONAVIRUS PANDEMIC
5. MINISTRY OF HEALTH
6. THE INSPECTOR GENERAL OF POLICE
7. THE COUNCIL OF GOVERNORS
8. PHARMACY & POISONS BOARD
9. THE NATIONAL ASSEMBLY OF KENYA
10. THE SENATE OF KENY...............................................................................................RESPONDENTS
AND
1. SHANICE WANJIKU
2. KIMBERLEY ATIENO OTIENO...................................................................INTERESTED PARTIES
AND
KENYA LEGAL & ETHICAL ISSUES NETWORK
ON HIV & AIDS (KELIN)......................................................................INTENDED AMICUS CURIAE
RULING NO. 1
Introduction:
1. By a Notice of Motion dated 3rd February, 2022 (hereinafter referred to as‘the application’) and supported by the two Affidavits of Allan Maleche deposed to on the 3rd and 5th February, 2022 Kenya Legal & Ethical Issues Network On HIV & AIDS (hereinafter referred to as‘KELIN’or‘the Applicant’) intends to be enjoined in the consolidated Petitions herein as an Amicus Curiae.
2. A snapshot of the events leading to the instant dispute and the Applicant’s quest to be enjoined is essential.
3. On 21st November 2021, The Cabinet Secretary Ministry of Health made a Press Release dubbed, Brief No. 605A - National Emergency Response Committee Press Release on COVID - 19 (hereinafter referred to as ‘the Directives’).
4. The directives sought inter-alia to compel everybody seeking Government services in person to be fully vaccinated and avail proof of such vaccination. It also made the requirement that all drivers, conductors, boda boda riders, pilots, air hostesses working in the transport sector should be fully vaccinated and carry proof of such vaccination at all times.
5. The directives further sought to have all persons visiting public places including National Parks, Game Reserves, Hotels, Bars, Restaurants and businesses including small and medium enterprises to be vaccinated and have proof of that vaccination.
6. In addition to the foregoing, the directives sought to restrict all indoor gatherings to two thirds capacity with proof of vaccination of all persons in attendance.
7. The Petitioners herein,Herein Winfred Clarkson Otieno Ochieng, Enock Joseph Aura, Kituo Cha Sheria, Kenya Himan Rights Commission, Eliud Karanja Matindi, Mbarak Hamidwere aggrieved by the directives. They all filed constitutional Petitions which were later consolidated.
8. It was their respective cases that as at the time of the press release, only an approximate of 8. 8% of Kenyans were fully vaccinated and the directive that all persons be vaccinated by 21st December, 2021 would deny over 24 Million Kenyans Government services as well as the freedom of association, assembly and will further infringe on the freedom of movement, access to justice among other violations.
9. The Petitioners prayed that the directives issued be declared unconstitutional and irregular for contravening Article 10(1) and (2), 24(1), 26, 31, 32(2), 38 and 118(1) of the Constitution.
10. The Respondents variously opposed the consolidated Petitions.
The Application:
11. On the foregoing factual background, the Applicant sought the following Orders: -
1. Spent
2. Spent
3. Spent
4. That upon admission to these proceedings as amicus curiae, the Applicant be granted leave to submit information to the Court by way of an amicus brief and oral arguments, or any other information or documentation that may be relevant in this Petition as the Honourable Court deems fit.
5. The Court do grant any other Order it deems just and appropriate in the circumstances.
6. There be no costs against the Amicus Curiae
12. The Applicant grounded its quest to be enjoined on the claim that it is a longstanding organization with knowledge and expertise in health-related human rights laws; has extensive engagements on the right to health including transparency and accountable governance in matters of health including Covid-19 response processes.
13. The Applicant pleaded that it is an independent and impartial expert not aligned to any party before the Court and that its submissions will assist the Court in determination of the issues at hand.
14. In the Supporting Affidavit, Allan Maleche made reference to the Organization’s Certificate of Registration and deposed that its mandate is to promote and protect health-related human rights in Kenya with knowledge and practical expertise in health-related human rights laws including their interpretation and applicability, incorporation of rights-based approach and promotion of human rights principles.
15. It was his case that at the onset of the Covid-19 pandemic, the Intended Amicus-curiae launched and implemented a programme whose aim was to monitor, document and advocate for a rights-based, transparent and accountable COVID-19 response in Kenya.
16. To that end, he deposed that the Applicant mobilized over 60 civil society organizations, community-based organizations, professional bodies and economic and governance experts to collaboratively develop an advisory note on ensuring a rights-based response to curb the spread of COVID-19 which led to establishment of “COVID-Rights Based Approach (Covid-RBA)’’.
17. It was his case that ‘The Covid-RBA’ enabled sharing of real-time information around COVID-19 responses, lessons learnt, trends observed and gaps in implementation and to facilitate that it created an SMS hotline (40091), toll free number (0800-720-721) and email address (complain@kelinkenya.org) to enable people report health-related human rights violations during the pandemic.
18. He deposed that the intended amicus-curiae has litigation experience in regard to the limitation of rights in the prevention of the spread of infectious diseases and as such is able to demonstrate the conflict and balance between the need to protect the rights of individuals with infectious diseases and the right of the general public to be protected from infection.
19. To buttress the foregoing reliance was placed on Daniel Ng’etich & 2 others v Attorney General & 3 others[2016] eKLR, where the Applicant successfully challenged the detention of defaulting patients living with tuberculosis in prisons as per Section 27 of the Public Health Act.
20. On the foregoing authority, he reiterated that the Applicant has expertise in the response to health-related human rights, and related access to services in response to contain the spread of infectious diseases and is, therefore, well placed to provide information to this Court that would provide guidance as it determines the Petition.
21. In sum, the Applicant submitted that it will bring on board information regarding the necessary infrastructure that ought to be implemented when limiting people’s rights on the basis of securing community health; the instances where mandatory vaccination is a warranted response to a public health emergency or pandemic; the core human rights obligations that guide mandatory vaccination mandates; any acceptable limitation to human rights in the response to public health emergencies and pandemics, including limitation of access to services for non-vaccinated persons and the importance of public education before limitation of health rights as provided for under the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.
22. On the foregoing, he deposed that the intended amicus curiae is an independent and impartial expert who is not aligned to any of the parties before Court.
23. He stated that it is in the interests of justice that the application be allowed.
24. The intended Amicus Curiae further urged its case through written submissions dated 16th February, 2022.
25. It submitted that Article 22(3) of the Constitution donates power to Court to develop the law to the extent that it does not give effect to a right or fundamental freedom; and to adopt the interpretation that most favours the enforcement of a right or fundamental freedom. Support was found in Petition 12 of 2013, Trusted Society of Human Rights Alliance -vs- Mumo Matemu & 5 others [2015] eKLR.
26. It was stated further that under Rule 6 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (hereinafter referred to as ‘the Mutunga Rules’) allow for admission of amicus curiae to proceedings.
27. It was its case that, while the Supreme Court Rules, 2012, set forth the criteria for admission of Amicus Curiae, the Supreme Court Rules apply only to cases before the Supreme Court and are not applicable in this case since they were established as per under Article 163(8) of the Constitution.
28. Reference to that end was made to S W K & 5 others -vs- Medecins Sans Frontiers - France & 10 others[2016] eKLR where it was observed: -
… In that context, whereas the applicable law in regard to joinder of Parties in constitutional Petitions is the Mutunga Rules as read with Article 22 (3) (e) of the Constitution, the mere fact that a party brings an application for joinder under the provisions of the Civil Procedure Act, in my view, is a curable defect and a Court of law should not be technical on the question. I appreciate that the Civil Procedure Act is the general law that governs the conduct of civil matters and the Mutunga Rules are a special set of Rules governing constitutional litigation under the Bill of Rights and the latter makes express provisions in regard to the filing of applications such as the present ones.
29. On the parameters a Court ought to abide by while admitting an amicus curia,reliance was found in Trusted Society of Human Rights Alliance -vs- Mumo Matemu & 5 others [2015] eKLR and in Justice Philip K. Tunoi & Another -vs- Judicial Service Commission & 2 Others [2014] eKLR (High Court Petition No. 244 of 2014).
30. Miss. Nyokabi, Counsel for the Applicant, reiterated the Applicant’s expertise in promotion and protection of health-related human rights laws including their interpretation and applicability, incorporation of a rights-based approach and promotion of human rights principles.
31. Counsel urged the Court to return the verdict that it was impartial and independent, by stating that the Applicant was neither aligned to nor hostile towards any of the parties to the suit.
32. It was also her case that the issue of vaccination, which the Petition is about, is of great public importance and presents diverse aspects of public interest. Such include the rights-based responses to pandemics and epidemics, protection of the population and the respect for human rights and the context in which a limitation of rights can occur.
33. In the end, Counsel urged that its contribution to the dispute will help illuminate the issues for the Court to make an informed decision.
The 2nd Petitioner’s case:
34. The 2nd Petitioner, Joseph Enoch Aura, opposed the application for joinder through his Replying Affidavit deposed to on 4th February, 2022.
35. Counsel for the 2nd Petitioner, Mr. Harrison Kinyanjui also held brief for Counsel for the 1st Petitioner. Mr. Kinyanjui also appeared for the 5th Petitioner herein, Eliud Karanja Matindi, solely for the purposes of the application.
36. The 2nd Petitioner deposed that the Applicant had not made out its case to allow this Court to permit the joinder sought. He stated that the Applicant did not meet the requirements under Rule 19 of the Supreme Court Rules, 2020.
37. He deposed that the Applicant had not established expertise upon which the Court can base its decision to allow its participation.
38. It claimed that the agenda served by the Applicant is funded directly and indirectly by the same foreign entities whose "vaccines" are at the centre of the consolidated Petitions herein and as such cannot be an objective friend of Court.
39. The 2nd Petitioner further faulted the intended amicus curiae for not presenting an amicus briefor informationon any aspect of the Petition but was nonetheless holding the Court at ransom.
40. He deposed that the Applicant ought to bring on board proven expertise of the person, independence and impartiality and public interest aspect which had not been demonstrated.
41. It was his case that the 3rd and 4th Petitioners herein was in a position to articulate the Applicant’s issues and its joinder was not necessary.
42. He deposed further that the Applicant seeking to be enjoined as an amicus curieought to file its case timeously. He stated that delayed filing compromises their essence as well as the Constitution which call for determination of disputes expeditiously.
43. It was his case that the Applicant had not made any points of law that it will address not already addressed by the parties so as to introduce any novel aspects of the legal issues.
44. He deposed that the Applicant had not demonstrated any scholarly expertise in constitutional law as to warrant joinder.
45. As a result, it was claimed that the application was not merited and ought to be dismissed with costs.
46. In its written submissions dated 21st February, 2021 the 2nd Petitioner further reiterated his case. In his oral highlights, Mr. Kinyanjui, submitted that the timing of the filing of the application was prejudicial to the expeditious conclusion of the dispute. He relied on the Supreme Court decision in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others[2015] eKLR to buttress the guiding principles to include a party as amicus curiae.
47. It was urged that this Court must abide by doctrine of stare-decisis and disallow the application.
Analysis and Determination:
48. From the foregoing discourse, this Court has discerned two areas for discussion. They are: -
i. The guiding principles for admission of a party as an ‘amicus curiae’.
ii. Whether the application is merited.
49. I will deal with each issue separately.
The guiding principles for admission of a party as an ‘amicus curiae’:
50. Anamicus curie is defined in Black’s Law Dictionary 11th Edition, Thomson Reuters publication, at page 106 as follows: -
Someone who is not a party to a lawsuit but who petitions the Court or is requested by the Court to file a brief in the action because that person has a strong interest in the subject matter... – often termed as ‘amicus’ - also termed as friend of Court.
51. Jowitt’s Dictionary of English Law defines ‘a friend of Court’ as follows: -
A friend of the court, that is to say a person, whether a member of the bar not engaged in the case or any other bystander, who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked.
52. The legal framework for admission of a party as a friend of Court is anchored in Article 22(3)(e) of the Constitution. It provides as follows: -
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—
(e) an organisation or individual with particular expertise may, with the leave of the Court, appear as a friend of the Court.
53. Rule 6 of the Mutunga Rules adds flesh to the foregoing constitutional provisions as under: -
Friend of the Court.
6. The following procedure shall apply with respect to a friend of the Court—
a. The Court may allow any person with expertise in a particular issue which is before the Court to appear as a friend of the Court.
b. Leave to appear as a friend of the Court may be granted to any person on application orally or in writing.
c. The Court may on its own motion request a person with expertise to appear as a friend of the Court in proceedings before it.
54. In Kenya, apart from the above constitutional provisions, there has never been any legislation or rules governing the admission of amici. As a result, guidance on the subject has variously been given by Courts.
55. Before I look at some of the guidelines, suffice to say that an amicus curiae is to be discerned from an interested party or an intervener. In Petition No. 12 of 2013, Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, [2015] eKLR, Supreme Court rendered itself as follows on the distinction: -
24. …….. 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.
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 [or her] cause is to ensure that a legal and legitimate decision is achieved.
56. Furthering the discussion on the amicus curiae, the Supreme Court also dealt with the place and role of amicus curiae as follows: -
[38] Amicus participation is a matter of privilege, rather than of right. And “intervention” in a case, as provided under Rule 25 of the Supreme Court Rules, 2012 allows parties with sufficient interest in the matter to apply to be enjoined as interveners or interested parties. This avenue is set apart from that of amicus. As opposed to amicus, interveners have an interest in the rest of the suit, as to be affected by the resulting Judgement of the Court. Amicus curiae on the other hand, are “advisors to the Court”, and not to the parties, and are in no way bound by the resulting Judgement, except by way of precedent. Amici curiae cannot be perceived as an extension of the Court; and they are not to advance any party’s case, and ought not to extend their participation to the realm of interveners in any legal proceedings. The interposition of amici in judicial proceedings is terminated when they have put forward the points of law outlined in their amici brief.
[39] There is, however, an exception in amicus interventions, in the case of advisory-opinion proceedings before this Court, as signalled in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No.2 of 2011. The absence of a live controversy in such proceedings opens a window for the amicus to steer the Court, by specific proposals, towards a definite legal position. The ultimate decision, however, lies with the Court.
57. On the justification for amici, the Supreme Court in Petition No. 12 of 2013, Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, [2015] eKLR, dealt with the subject at length. Save for the express provision of Article 22(3)(e) allowing participation of an amicus curiae, another justification was traced to Article 20(3)(a) of the Constitution by the Court in where the Learned Judges observed as follows: -
….. The Constitution of Kenya, 2010, by express terms, requires Courts to “develop the law to the extent that it does not give effect to a right or fundamental freedom” (Art. 20(3)(a)). This is the very foundation for well -informed inputs before the Court, which inherently, justifies the admission of amici curiae. We have a duty to ensure that our decisions enhance the right of access to justice, as well as open up positive lines of development in jurisprudence, to serve the judicial system within the terms of the Constitution.
58. Upon laying down the above constitutional justification, the Learned Judges further outlined the parameters and principlesthat guide admission of a party as amicus. The Court stated as follows: -
[41] From our perceptions in the instant matter, we would set out certain guidelines in relation to the role of amicus curiae:
i. An amicus brief should be limited to legal arguments.
ii. The relationship betweenamicus curiae, the principal parties and the principal arguments in an appeal, and the direction ofamicusintervention, 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 amicusbriefs 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 otheramici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
v. The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General is not defeated solely by the subsistence of a State interest, in a matter of public interest.
vi. Where, in adversarial proceedings, parties allege that a proposed amicus curie is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue (see: Raila Odinga & Others v. IEBC & Others; S.C.Petition No. 5 of 2013-Katiba Institute’s application to appear asamicus).
vii. An amicus curiae is not entitled to costs in litigation. In instances where the Court requests the appearance of any person or expert as amicus,the legal expenses may be borne by the Judiciary.
viii. The Court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role in to partisan role.
ix. In appropriate cases and at its discretion, the Court may assign questions for amicusresearch and presentation.
x. An amicus curie shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.
[42] In addition, we would adopt, with respect, certain guidelines which emerge from Mr. Justice Odunga’s decision in the Justice Tunoi case (op.cit.): -
xi. The applicant ought to raise any perception of bias or partisanship, by documents filed, or by his submissions.
xii. The applicant ought to be neutral in the dispute, where the dispute is adversarial in nature.
xiii. The applicant ought to show that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available. The applicant ought to draw the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. Therefore, the applicant ought to show that there is no intention of repeating arguments already made by the parties. And such new matter as the applicant seeks to advance, must be based on the data already laid before the Court, and not fresh evidence.
xiv. The applicant ought to show expertise in the field relevant to the matter in dispute, and in this regard, general expertise in law does not suffice.
xv. Whereas consent of the parties, to proposed amicus role, is a factor to be taken into consideration, it is not the determining factor.
[43] In addition to these guiding principles, the following directions may be applied by a Court considering an amicusapplication:
i. A party seeking to appear in any proceedings as amicus curiae should prepare an amicus brief, detailing the points of law set to be canvassed during oral presentation. This brief should accompany the motion seeking leave to be enjoined in the proceedings as amicus.
ii. The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
iii. In proceedings before the Supreme Court, the Bench as constituted by the President of the Court, may exercise its discretion to admit or decline an application from a party seeking to appear in any proceedings as amicus curiae, and denial or acceptance such of an application should have finality.
iv. The Court reserves the right to summarily examine amicus motions, accompanied by amicus briefs, on paper without any oral hearing.
v. The Court may also consider suggestions from parties to any proceedings, to have a particular person, State Organ or Organisation admitted in any proceedings as amicus curiae.
59. The guiding principles were further dealt with in Supreme Court Petition No. 1 of 2017, Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Law Society of Kenya(as Amicus Curiae) [2017] eKLRwherethe Court once again echoed with approval its earlier decision inTrusted Society of Human Rights Alliance v. Mumo Matemucase (supra) and went on to observe as hereunder: -
[15] Most important, as a friend of the Court, a party must not be partisan as he has no personal stake in the matter save for fidelity to the Constitution and assisting the Court reach a legally sound determination. The decision whether to admit apart is also as the discretion of the Court, though parties on record may be invited to respond to such an application.
60. To enable the Court to properly exercise its discretion, a party seeking to be enjoined as an amicus curiae must demonstrate its eligibility through evidence. The Court, on the other hand, has the obligation to assess a party’s propriety and the value it brings into the matter on a case-by-case basis.
61. In navigating that delicate balance, the Supreme Court in Raila Amolo Odinga & another -vs- Independent Electoral and Boundaries Commission & 2 others & Law Society of Kenyacase (supra) observed as follows: -
[17] In the application before this Court, while the applicant was previously denied admission before this Court as amicus curiae, in a similar Petition in 2013 that cannot be a ground for subsequent denial as urged by the 3rd respondent. Neither can the fact that Society was previously admitted by a ground for admission in subsequent proceedings as urged by the applicant. Each matter before the Court is unique and raises unique issues for determination and legal questions under different circumstances. This is the reason why an application has to be determined on its merit on a case to case basis so as to determine whether an intended applicant possesses the expertise relevant to assist the Court. The Court cannot take judicial notice of an amicus’ expertise. It is a matter fact to be pleaded and proved.
62. Having laid out the legal foundation and the developed principles guiding applications for joinder of amici, I now will consider whether the application measures up to the required standard.
Whether the application is merited:
63. Looking at the guidelines developed by the Supreme Court, one key requirement in an amicus application stands out. It is the filing of an amicus brief together with the application. There is no doubt the Supreme Court emphasized the need, role and contents for such a brief in the matters referred to above.
64. This Court is bound by the decisions of the Supreme Court through Article 163(7) of the Constitution which states as follows:
All Courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
65. The said constitutional provision buttresses the doctrine of stare decisis.
66. This Court has carefully perused the application. It appears that the Applicant did not file an amicus brief. As such, the application is counter the settled principles for joinder. The application, therefore, lacks any legal leg to stand on and is incompetent. It must be struck out.
67. Having said so, this Court’s attention has been drawn to Rule 6(c) of the Mutunga Rules. The rule states as follows: -
c) The Court may on its own motion request a person with expertise to appear as a friend of the Court in proceedings before it.
68. The essence of the above rule was reiterated by the Supreme Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others case (supra) in paragraph 43(ii) as follows: -
ii. The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
69. This Court, upon finding that the application cannot stand for want of the amicus brief, has keenly considered the role of the Applicant in the society. There is ample material on record.
70. There is the Applicant’s vision which is “the full enjoyment of health related human rights for all.’
71. Its mission is “to promote and protect health related human rights for all”.
72. The Applicant’s Strategic Plan for 2021-2025 is also on record. The Plan describes the Applicant as an institution working towards promoting and protecting health related human rights as guaranteed in the Constitution.
73. The focus areas as described in its Strategic Plan is HIV, TB, Health and Governance, Sexual reproductive health and rights, Strategic litigation, Women, Land and Property rights.
74. The Applicant’s strategic result is as follows -
By 2025, vulnerable and marginalized communities in Kenya have access to available, acceptable and quality health services, their health related human rights are protected and social justice for health is promoted.
75. Of further importance are the contents of the Applicant’s letter dated 28th March, 2020 addressed to the Cabinet Secretary for Health. It is titled: -
An Advisory Note on Ensuring A Rights Based Response To Curb The Spread of Covid – 19.
76. The letter is an advisory to the Ministry of Health to provide guidance on a transparent response to Covid-19 response that safeguards the health and rights of the most vulnerable and underserved populations in Kenya.
77. The Applicant urged the State to put in place measures for social protection and solutions to alleviate socio-economic rights of all people including the vulnerable and marginalised in view of implementation of Covid-19 containment measures.
78. In view of the fact that the letter was authored more than one and a half years before this suit was instituted, it can be deduced that the Applicant genuinely agitates and promotes health-related human rights.
79. This Court further takes judicial notice of the fact the Applicant has appeared before the High Court in respect to health-related human rights litigation including arguing such matters before yours truly.
80. The Court is, therefore, sufficiently seized with the conviction that the Applicant herein is a health-related human rights organization predominantly dealing in the enjoyment, promotion and protection of health related human rights. The Applicant is, hence, possessed with the requisite expertise.
81. There can be no doubt that the Covid -19 pandemic is a scourge that has left the world grappling with ways to contain it. The world is stopping at nothing short of taking all precautions to keep its people alive. As a result, vaccination is a matter of great public interest.
82. The manner in which people will receive vaccines and whether access to Government services be tied to such vaccination is a matter of grave public concern and these proceedings are aimed at unravelling whether such has an impact on human rights and fundamental freedoms. Such falls squarely within the ambit of the Applicant’s expertise.
83. As to the partiality of the Applicant, there is no evidence to suggest that the Applicant shall not be a neutral party. Needless to say, a Court can limit the involvement of an amicus curiae in a matter.
84. On whether the joinder will delay the matter, I note that the proceedings herein were instituted on 23rd November, 2021. The Applicant herein sought for the joinder on 3rd February, 2022. That was a period of two months and 10 days after the institution of the main Petition. The Court also takes note of the fact that there was the December recess within the period in issue.
85. The delay, if any, was not inordinate as to amount to an injustice. It is this Court’s conviction that no party will stand prejudiced on account of the alleged delay.
86. To the contrary, this Court stands to benefit from the expertise of the Applicant. The subject of the Petition is novel and calls for the development of jurisprudence. Justice will be served if parties who will definitely aid the Court take part in this matter.
87. The dynamics of this case, therefore, tilt in favour of allowing the participation of the Applicant, as an amicus curiae. Whereas the application has failed on a technicality, still this Court, pursuant to Rules 3 and 6 of the Mutunga Rules, on its own motion and in the interest of time, and being satisfied that it stands to benefit from the input of the Applicant, exercises its inherent powers and calls upon the Applicant as an amicus curiae in this matter.
88. Consequently, the following final orders hereby issue: -
i. The Notice of Motion dated 3rd February, 2022 is hereby struck out with no orders as to costs.
ii. This Court on its own motion hereby admits KENYA LEGAL & ETHICAL ISSUES NETWORK ON HIV & AIDS (KELIN) as an Amicus Curiae in this matter.
iii. The Amicus Curiae shall not participate in any interlocutory matters.
iv. The Amicus Curiae’s participation in this matter shall be limited to filing written submissions on the following issues: -
a. The necessary infrastructure that ought to be implemented when limiting people’s rights on the basis of securing community health;
b. The instances where mandatory vaccination is a warranted response to a public health emergency or pandemic;
c. The core human rights obligations that guide mandatory vaccination mandates;
d. Any acceptable limitation to human rights in the response to public health emergencies and pandemics, including limitation of access to services for non-vaccinated persons, and;
e. The importance of public education before limitation of health rights as provided for under the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.
v. The Amicus Curiae shall file and serve its written submissions within 14 days of this ruling.
vi. Any party which is yet to comply with the directions on the filing of responses and written submissions shall do so within the next 7 days of this ruling.
vii. The Petitioners shall be at liberty to file any Further submissions, if need be, upon service of the submissions by the Amicus Curiae. That shall be within 7 days of such service.
viii. This matter shall be fixed for a mention to confirm compliance and for further directions.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF MARCH, 2022
A. C. MRIMA
JUDGE