In a recent ruling in the case of Republic v Mwangi; Equality Now & another (Intended Interested Party); Initiative for Strategic Litigation (ISLA) & 3 others (Intended Amicus Curiae) (Petition (Application) E018 of 2023) [2023] KESC 99 (KLR) (Civ) (10 November 2023), the Supreme Court of Kenya addressed three crucial applications aimed at optimizing judicial resources and ensuring a comprehensive examination of the matters at hand. The applications involved requests for joinder by interested parties and admission as amici curiae, adding complexity to a case concerning the constitutionality of mandatory minimum sentences under the Sexual Offences Act of 2006.
The first two applications were filed by Equality Now and CREAW, along with Nathan Khaemba Makokha and Hesbon Onyango Nyamweya, seeking to be joined as interested parties. The third application came from ISLA, KELIN, FIDA, and WLW, collectively seeking admission as amici curiae.
Upon meticulous review, the court delved into the intricacies of each application. Equality Now and CREAW, as the first joint intended interested parties, emphasized their role as non-profit organizations dedicated to advancing the rights of women and girls in Africa. They sought joinder based on their direct involvement in issues related to the constitutionality of mandatory minimum sentences, particularly in cases of sexual violence.
The court, however, observed that while the issues raised were of public interest, the first joint intended interested parties failed to demonstrate a personal stake in the matter or the prejudice they would suffer if not joined. Consequently, the court dismissed their application.
Similarly, the second joint intended interested parties, represented by inmates Nathan Khaemba Makokha and Hesbon Onyango Nyamweya, were unable to establish a personal stake or the prejudice they would endure without joinder. Despite their shared experiences with the respondent, the court deemed their participation unnecessary and dismissed their application.
Contrastingly, the joint intended amici curiae, represented by ISLA, KELIN, FIDA, and WLW, received a favorable ruling. The court acknowledged their expertise in women’s and children’s rights, highlighting their impartiality and independence. The amici curiae sought to contribute novel legal perspectives, focusing on the state’s due diligence obligation and international comparisons regarding mandatory minimum sentences. The court, recognizing the unique value they brought, allowed their participation, albeit limited to the already submitted amici brief.
In concluding the ruling, the court emphasized the importance of adhering to established principles for joinder and amici curiae participation, that is, emphasizing personal stake, prejudice, and a commitment to addressing novel legal issues. Acknowledging the public interest nature of the case, the court decided that each party should bear its own costs.
This landmark ruling reflects the judiciary’s commitment to efficient case management, ensuring that only relevant and necessary parties are involved in proceedings, ultimately contributing to a more streamlined legal process.
Author:
Zahra Nechesa (CS) – Partner
Nderitu Wang’ombe – Lawyer
