Friday, September 08, 2017

Six minutes to say "No"

Thank you, Mr President.

This is an application by counsel Charles Kanjama who is applying to be admitted as an amicus curiae and in the Notice of Motion dated 25th August 2017 seeks Joinder to the Petition as an amicus. There are various prayers but the thrust of the application is to be joined as amicus of the Presidential Petition hearing and to be represented by the firm of Mumma and Kanjama Advocates.

He sets out the matters that he can bring forth for the assistance of this Court including burden and standard of proof, electoral irregularities, managing electoral timelines, context and application of information and communications technology, verification of tallying and transmission of results, interlocutory applications, scrutiny and recount in a limited frame, developing role of amicus curiae, public interest.

In the alternative, he seeks to be admitted as an Interested Party and Intervenor and allowed to participate in the proceedings.

He has filed an affidavit in support of this application. He has set out the grounds on which the application is grounded and they are all set out in the application and which we will give you to read once we supply you with copies.

Now, after setting out the basis and the particulars, the First and Second Respondents oppose the application. And among other things, the First and Second --

Sorry. First of all, the Petitioner opposes the application by way of a replying affidavit by the Honorable Raila Odinga dated 26th August and it disabuses the applicant's alleged expertise in the electoral process and avers that general practice in law does not suffice for admission of one as amicus. Other reasons are also given. On their part, the First and Second Respondents also oppose the application and they have deponed that the applicant has not demonstrated or established any field of expertise or knowledge that he will be submitting on to aid this Court in determining the Petition before the Court in this particular petition. The Third Respondent in a replying affidavit deponed by Davis Kimutai Chirchir and written submissions, also opposes the application for joinder and the reasons are set out at length.

The determination of this Court is that the jurisprudence as regards admission of amicus is settled and has been referred to in similar applications before this Court. [While, in this particular Court, the Law Society has also sought to be admitted, as the record will show]. 

While the admission of an amicus is at the discretion of the Court, we note that all the parties to the Petition have opposed the admission of Mr Kanjama as an amicus, particularly that he does not possess the expertise he alleges to have; that he's is of a general nature; and further, and in particular reference to the petitioner's, that he seeks to introduce new issues not advanced by the parties herein.

We have referred to the case of Supreme Court Advisory Opinion on the Principle of Gender where Mr Kanjama had been admitted as an amicus. But as we have said in this case, every case will be decided on its own facts and merits. On the contrary, the Petition before us, we are unconvinced that the applicant posses sufficient expertise to advise the Court on the technological issues. The Court holds that it does not require a person with a legal background as his primary professional discipline, which the applicant is, but a technocrat in information technology and systems, which is a secondary discipline possessed by the applicant. We reiterate that the fact that one was previously admitted as amicus in a matter before the Court is not sufficient ground for admission in a subsequent suit as each case is determined on its own merits and unique issues and circumstances. The upshot is that the application for admission as amicus is hereby dismissed and this is the ruling of the Court.

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