INTRODUCTION
In legal proceedings, parties may be designated as either “Amicus Curiae” or
“Interested party,” each carrying distinct implications and levels of participation. This
article aims to elucidate the circumstances under which parties assume these
designations and explores the extent of their involvement in legal proceedings.
- AMICUS CURIAE
An Amicus Curiae is simply a friend of the Court. In Kenya, the Mutunga Rules define a
‘friend of the court’ as an impartial expert on the cases’ subject matter, benefiting the
court with their expertise. An amicus curiae provides the court with important
information to aid in decision-making.
The Supreme Court in the case of Trusted Society of Human Rights Alliance v
Mumo Matemu & Others (2015) eKLR set the standards for the joining of an amicus
curiae. The court held that the Constitution of Kenya, 2010 requires the court to develop
the law to the extent that it does not give effect to a fundamental right or freedom and
adopts an interpretation that promotes the same. This, the Court argued, was the very
foundation for well-informed inputs before the Court, which inherently, justifies the
admission of amici curiae. Specifically, the Court was emphatic that an amicus curiae
ought to come into the proceedings on a foundation of neutrality. In simple terms, an
amicus curiae joins only to assist the Court in arriving at a just determination. They
should therefore be impartial.
On the procedure of admitting an amicus curiae, the Mutunga Rules provide that a
person may be admitted as a friend of the court either on oral or written application or
on the court’s own motion if the court is satisfied that the person has expertise that may
benefit the court in determining the matter before it.
Moreover, Rule 54 of the Supreme Court Rules of 2012 provides that the Court may in
any matter allow an amicus curiae or appoint a legal expert to assist the Court in legal
submission, or at the request of a party or on its own initiative, appoint an independent
expert to assist the Court on any technical matter.
Further, it provides that the Court shall before allowing an amicus curiae, take into
consideration the expertise, independence and impartiality of the person in question
and the public interest or any other relevant factor it deems fit. Lastly, it provides that
the fees and expenses of an advocate or expert appointed by the Court on its own
motion shall be paid out of the Judiciary Fund in accordance to the scale of the Fees set
out by the Chief Justice from time to time. - INTERESTED PARTY
Section 2 of the Mutunga Rules provides that an interested party is a person or entity
that has an identifiable stake or legal interest or duty in the proceedings before the
court but is not a party to the proceedings or may not be directly involved in the
litigation.
The basis for joining a person or entity as an interested party into proceedings are
founded in the Constitution of Kenya, 2010 under Articles 3 and 258 which mandate
any person, regardless of personal injury, to defend the Constitution. These provisions
bestow every person, natural or juristic, a locus standi before any court in the event a
right or freedom is or likely to be breached.
In addition, Article 22 gives every person claiming that a right is being denied,
breached, infringed or threatened a right to institute proceedings in court. It further
provides under sub-article 2 (b) and (d) that the proceedings may be instituted by a
person acting on behalf of a class of people or an association acting on behalf of its
members. This provision allows joining of societies, persons acting in matters of public
interest, and professional organizations to be joined in matters of public importance.
The Supreme Court in the Communication Commission of Kenya & 4 others v
Royal Media Services Limited & 7 others [2014] eKLR provided the qualifications for
one to be joined as an interested party. The Court relied on the holding of the High
Court in case of Meme vs Republic [2004] 1 EA 124 where the court held that joinder
of the interested party would result in the complete settlement of the matter in dispute,
provide for the protection of the rights of party which would otherwise be adversely
affected and to prevent a likely course of proliferated litigation. The court further noted
that two key questions need to be answered in determining whether or not to join a
party into the proceeding. These questions are: what is the intended party’s state
and relevance in the proceedings? and, will the intended interested party suffer
any prejudice if denied joinder?
In accordance with Order 1 Rule 10(2), an interested party can be joined into
proceedings either on application by the party or by the court on its own volition. A
party applying to be joined into proceeding will do so vide a Notice of Motion supported
by an affidavit stating the reasons why the party should be joined as an interested party.
In conclusion, the role an interested party plays in proceedings cannot be understated.
The role of an interested party in proceedings serves to protect the rights or an interest
of a party that was not included ab initio. An intended interested party must demonstrate
that they have an interest in the proceedings that would otherwise be adversely
affected. The joinder of an interested party seeks to ensure that a matter is completely
settled.
CONCLUSION
In conclusion, unlike an amicus curiae, an interested party has a direct interest in the
subject matter of the suit and will be affected by the Court’s Judgment. An amicus
curiae, on the other hand, serves as an “advisor to the court” rather than to the parties
involved. They are not bound by the resulting judgment, except as a matter of
precedent. Additionally, amici curiae cannot be perceived as extensions of the court;
they should not advance any party’s case and must not extend their participation into
the realm of an interested party in legal proceedings.
AUTHORS
Caroline Kimani
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