Nairobi — The Supreme Court has allowed an application by the Law Society of Kenya (LSK) to be enlisted as a friend of the court in the presidential election petition challenging the declaration of William Ruto as President-Elect.
The court's seven-judge bench noted in a decision rendered on Monday that LSK's application met the threshold for admission as amicus curiae having demonstrated impartiality, a key requirement for admission as friend of the court.
Justices Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko however noted that as amicus, LSK will only address the court through its written brief and will not be allowed to make oral submissions.
The Koome-led court cited Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, SC Petition No. 12 of 2013; [2015] eKLR where the Supreme Court held, in a decision rendered on June 17, 2015, that "impartiality is a central tenet in the conduct of judicial proceedings."
"It is now clear that impartiality to a party's cause is one of the conditions for admission to the status of amicus curiae," the court stated in the Mumo Matemu case.
"As counsellor before the Court, an amicus curiae should not exhibit partiality towards any party's cause; otherwise some party would be prejudiced. Given the role of amicus as friend of the Court, impartiality is required of an amicus curiae," Justices Ibrahim and Ndungu stated in the 2015 decision.
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The two justices also held that amici should confine themselves to issues of law that may not have been addressed by other litigants in court.
"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."
The court held that amici, unless expressly allowed by the court, will not be allowed to participate in interlocutory applications.
In Monday's decision to admit LSK as amicus curiae, the Supreme Court also cited Francis Muruatetu & Another v. Republic and 5 Others, SC Petition No. 15 &16 of 2015 (Consolidated): [2016] eKLR.
LSK's admission was among several others rulings transmitted electronically ahead of a status conference of the presidential petition on Tuesday during which the court was expected to give directions on how parties will conduct themselves.
The court also limited contributions by legal teams of the three main parties in the petition -- Raila Odinga and Martha Karua (The Petitioners), the Independent Electoral and Boundaries Commission (Respondent) as well as William Ruto and Rigathi Gachagua (Respondents) -- to four lawyers for each of the three.
The court allowed a single lawyer to IEBC Chairperson Wafula Chebukati and each of the four dissenting commissioners -- Juliana Cherera, Francis Wanderi, Justus Nyang'aya, Francis Wanderi and Irene Masit -- who disowned Chebukati's declaration of Ruto as President-Elect following the August 9 presidential election.
