ISLA applies for Review in Decision Excluding its Participation as Amicus Curiae

While ISLA welcomes the decision made by the High Court of Kenya in Wambui Mwangi v Tony Mochama & Another (High Court Civil Appeal No 507 of 2019) which wwas delivered by the court on 8th May 2023, ISLA remains concerned about the order of the Court made at paragraph 48 of the judgment in which the court stated that it could not consider ISLA’s amicus brief because it was not a party to the proceedings before the Magistrate’s Court that tried the matter. It is ISLA’s considered view that this order undermines the exercise of Courts’ use of amicus curiae participation in advancing the rule of law and vindicating constitutional rights.  To this end, ISLA has applied for a review of this order which is an error on the face of the record that impacts on the practice of amicus curiae interventions and there is a need for the court to review the error.

ISLA was admitted as amicus curiae in these proceedings by way of a valid court order made on 11th November 2022. While doing this, the Court affirmed that it satisfied all the elements of admission of amicus curiae, including that it was not biased or partisan, and that it could provide useful information that would aid the Court as it determined the appeal. This order was never reviewed, appealed or set aside by any competent court. Based on the directions given by the Court, ISLA filed its amicus brief with the court on the 17th March 2023.

ISLA was therefore surprised to read the finding at Paragraph 48 of the judgment of the Court which is to the effect that the amicus curiae’s brief and submissions could not be considered by the High Court as ISLA was not a party to the subordinate court proceedings. It amounts to the setting setting aside of a valid court order made by a concurrent court on 11 November 2022 without jurisdiction or power. Moreover, it leads to uncertainty and a lack of clarity in legal proceedings wherein the Court has admitted parties to participate as amicus curiae under Article 22(3)(e) of the Constitution of Kenya, 2010.

In the application for review, ISLA has outlined to the court that the continued application of the finding made in paragraph 48 of the judgment creates a legal precedent that undermines the exercise of Courts’ use of amicus participation in the appellate proceedings for the advancement of the rule of law and vindicating constitutional rights, and has asked the court to rectify the error by setting aside this portion of the judgment and substitute it with a finding that the amicus curiae was a proper party to the proceedings whose submissions the Court had discretion to consider.

For more information or enquiries contact:

Nyokabi Njogu

Advocate for the joint amici

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Karen C, Kuwinda Lane, Off Langata Road

PO Box 112 – 00202 KNH

Tel: 0790 111578



Carolene Kituku

Advocate for the joint amici 

ISLA Women’s Socio-economic Rights Lawyer

Email: Carolene

Phone: +254720467396