1. The Plaintiff filed the Notice of Motion dated 30/9/2025 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules seeking joinder of the Central Bank of Kenya as an Amicus Curiae, leave for the intended Amicus to file a response in the matter, and costs of the Application.
2. The Application was premised on the grounds that the dispute concerned repayment of a loan advanced by the 1st Defendant to the Plaintiff and the recovery measures employed by the bank, which allegedly had implications on the banking sector and regulation of financial institutions in Kenya.
3. The Plaintiff contended that under Section 33(4) of the Central Bank Act, the intended Amicus had authority to issue guidelines to financial institutions on standards of conduct, maintenance of stability and efficiency in the banking system, including consumer protection guidelines requiring fairness, transparency, equity and responsiveness by banks towards customers.
4. It was further contended that the 1st Defendant had levied unconscionable, unfair, oppressive and unlawful interest and penalties against the Plaintiff contrary to the doctrine of unconscionability under the law of contract and trust, which precludes enforcement of unfair and exploitative contractual obligations arising from unequal bargaining power between parties.
5. The Plaintiff averred that the Central Bank of Kenya, being the regulator of banking operations and supervised institutions, had a direct interest in ensuring proper conduct of recovery measures, compliance with banking regulations, and protection of consumers.
6. The Plaintiff further stated that the intended Amicus possessed technical expertise regarding banking transactions, loan classifications, and recovery procedures, which expertise would assist the Court in arriving at a fair and informed determination of the dispute. It was therefore urged that, in the interest of justice and fairness, the joinder of the Central Bank of Kenya as Amicus Curiae would enable the Court obtain relevant regulatory insight and oversight in safeguarding the interests of the Plaintiff as a consumer.
Defendant’s Grounds of Opposition
7. The Defendants opposed the Plaintiff’s application on the grounds that the Application was founded on a deliberate misapprehension and misapplication of the principles governing joinder of a party as amicus curiae.
8. The Defendants contended that the Application was procedurally defective as it had been brought by a party to the proceedings rather than by the intended amicus curiae itself, contrary to established legal principles governing such applications.
9. The Defendants further averred that the intended Amicus Curiae, the Central Bank of Kenya, had neither applied to be enjoined in the proceedings nor expressed consent or willingness to participate in the matter in that capacity. It was contended that the Plaintiff sought to improperly introduce the intended amicus in a partisan manner contrary to the nature of amicus curiae proceedings, whose role ought to remain objective, neutral and non-aligned to any party in the dispute.
10. The Defendants relied on the decision in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR and argued that the Application offended the established principles governing admission of an amicus curiae, particularly as regards timeliness, objectivity, and necessity of the intended intervention.
11. They contended that the Application had been filed inordinately late on 1st October 2025, on the eve of the hearing of the main suit, despite the suit having been instituted on 19th April 2022, and that no sufficient explanation had been offered for the delay. According to the Defendants, the timing of the Application undermined the principle of expeditious disposal of disputes under Article 159(2)(b) of the Constitution.
12. The Defendants further contended that the timing and nature of the Application demonstrated bad faith and an ulterior motive to undermine the Defendants’ rights and legitimate expectations, particularly following the interim injunctive orders issued in favour of the Plaintiff in October 2023. They averred that the proposed joinder of the Central Bank of Kenya at that stage would introduce extraneous and irrelevant issues not contemplated in the pleadings, thereby unnecessarily complicating the proceedings.
13. It was further contended that the Plaintiff had failed to demonstrate that the intended amicus curiae would offer any novel, expert or neutral contribution beyond the material already placed before the Court by the parties. The Defendants argued that permitting the joinder of the Central Bank of Kenya in an ordinary commercial dispute, without its own initiative or express consent, would set a dangerous precedent by politicising or improperly involving independent regulatory bodies in private litigation.
14. The Defendants further stated that if the Plaintiff had any grievance falling within the regulatory mandate of the Central Bank of Kenya, the proper recourse would have been to lodge a formal complaint with the regulator rather than seek to involve it in active litigation as a pseudo-party. Consequently, the Defendants described the Application as frivolous, vexatious and an afterthought intended solely to delay and frustrate the hearing of a matter that had remained pending for over three years, and urged the Court to dismiss the same with costs.
15. The application was canvassed by way of written submissions. The Plaintiff filed written submissions dated 15th October 2025, while the Defendant filed submissions dated 4th November 2025, which the Court has carefully considered.
Analysis and determination
16. The jurisprudence on amici curiae is now settled. In Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2015] eKLR, the Supreme Court set out guiding principles, including that an amicus must demonstrate expertise in the relevant field, must be independent and neutral, must not introduce new evidence, and must offer assistance not otherwise available from the parties.
17. The Supreme Court was also clear in the judgment that a party seeking to appear in any proceedings as amicus curiae should prepare an amicus brief, detailing the points of law set to be canvassed during oral presentation. This brief should accompany the motion seeking leave to be enjoined in the proceedings as amicus.
18. In Muruatetu & another v Republic [2016] eKLR, the Supreme Court further clarified that an amicus may be admitted either on the court’s own motion, upon application by the intended amicus, or at the request of a party to the proceedings. I therefore reject the Defendants’ contention that only the intended amicus may move the court for such joinder. The Plaintiff was entitled to invite the court to consider whether the participation of CBK would aid the court in resolving the dispute.
19. The mere fact that a party may move the court for admission of an amicus curiae does not, however, relieve the applicant of the obligation to demonstrate that the participation of the proposed amicus is necessary and will aid the court in the determination of the dispute.
20. The Plaintiff’s argument is that CBK’s expertise would assist the court in understanding the regulatory framework governing lending practices, interest computation, and consumer protection obligations applicable to banks. There is no dispute that CBK is the statutory regulator of banking institutions and that it exercises supervisory authority over commercial banks under the Central Bank Act.
21. The question, however, is whether the participation of CBK is necessary in this particular case. From the material before the court, the dispute concerns the lending relationship between the Plaintiff and the 1st Defendant, including the recovery of the loan facility and the legality of the charges and interest levied. These are issues that routinely fall for determination before the Commercial Division and are matters capable of resolution on the basis of the pleadings, evidence and submissions placed before the court by the parties.
22. I agree with the Defendant’s submissions that the Plaintiff has not demonstrated with precision the novel or specialized issue on which CBK’s participation would provide assistance beyond what the parties themselves can place before the court. While CBK is undoubtedly the regulator of banking institutions under the Central Bank Act, its general regulatory mandate does not automatically justify its admission into every commercial dispute involving a bank.
23. Further, the role of an amicus curiae is not to support the case of any party but to aid the court impartially. In the present case, the Plaintiff’s application is substantially anchored on the proposition that CBK would support the Plaintiff’s position concerning interest computation, consumer protection, and alleged unfair lending practices. The tenor of the application risks drawing the intended amicus into the arena of the dispute contrary to the requirement of neutrality emphasized in Trusted Society of Human Rights Alliance v Mumo Matemo (supra).
24. I also take into account the timing of the application. The suit was instituted in 2022, while the present application was filed in October 2025, shortly before the hearing of the matter. Although delay alone is not necessarily fatal, an application for admission of an amicus curiae must be made timeously so as not to prejudice the expeditious disposal of proceedings. The Plaintiff has not provided a satisfactory explanation why the need for the participation of CBK could not have been identified earlier in the proceedings.
25. In addition, CBK itself has neither sought joinder nor indicated willingness to participate in the proceedings as amicus curiae. While such consent is not an absolute legal requirement, the court must exercise caution before compelling an independent constitutional and statutory regulator to participate in private commercial litigation absent a demonstrated necessity.
26. In the premises, the court is not persuaded that the participation of CBK is necessary for the just determination of the dispute before it.
27. Accordingly, the Notice of Motion dated 30th September 2025 is therefore found to be without merit, and is dismissed with costs to the Defendants.
28. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Nyambega………………for the Applicant
Ms. Akiso……………for the Respondent
2. The Application was premised on the grounds that the dispute concerned repayment of a loan advanced by the 1st Defendant to the Plaintiff and the recovery measures employed by the bank, which allegedly had implications on the banking sector and regulation of financial institutions in Kenya.
3. The Plaintiff contended that under Section 33(4) of the Central Bank Act, the intended Amicus had authority to issue guidelines to financial institutions on standards of conduct, maintenance of stability and efficiency in the banking system, including consumer protection guidelines requiring fairness, transparency, equity and responsiveness by banks towards customers.
4. It was further contended that the 1st Defendant had levied unconscionable, unfair, oppressive and unlawful interest and penalties against the Plaintiff contrary to the doctrine of unconscionability under the law of contract and trust, which precludes enforcement of unfair and exploitative contractual obligations arising from unequal bargaining power between parties.
5. The Plaintiff averred that the Central Bank of Kenya, being the regulator of banking operations and supervised institutions, had a direct interest in ensuring proper conduct of recovery measures, compliance with banking regulations, and protection of consumers.
6. The Plaintiff further stated that the intended Amicus possessed technical expertise regarding banking transactions, loan classifications, and recovery procedures, which expertise would assist the Court in arriving at a fair and informed determination of the dispute. It was therefore urged that, in the interest of justice and fairness, the joinder of the Central Bank of Kenya as Amicus Curiae would enable the Court obtain relevant regulatory insight and oversight in safeguarding the interests of the Plaintiff as a consumer.
Defendant’s Grounds of Opposition
7. The Defendants opposed the Plaintiff’s application on the grounds that the Application was founded on a deliberate misapprehension and misapplication of the principles governing joinder of a party as amicus curiae.
8. The Defendants contended that the Application was procedurally defective as it had been brought by a party to the proceedings rather than by the intended amicus curiae itself, contrary to established legal principles governing such applications.
9. The Defendants further averred that the intended Amicus Curiae, the Central Bank of Kenya, had neither applied to be enjoined in the proceedings nor expressed consent or willingness to participate in the matter in that capacity. It was contended that the Plaintiff sought to improperly introduce the intended amicus in a partisan manner contrary to the nature of amicus curiae proceedings, whose role ought to remain objective, neutral and non-aligned to any party in the dispute.
10. The Defendants relied on the decision in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR and argued that the Application offended the established principles governing admission of an amicus curiae, particularly as regards timeliness, objectivity, and necessity of the intended intervention.
11. They contended that the Application had been filed inordinately late on 1st October 2025, on the eve of the hearing of the main suit, despite the suit having been instituted on 19th April 2022, and that no sufficient explanation had been offered for the delay. According to the Defendants, the timing of the Application undermined the principle of expeditious disposal of disputes under Article 159(2)(b) of the Constitution.
12. The Defendants further contended that the timing and nature of the Application demonstrated bad faith and an ulterior motive to undermine the Defendants’ rights and legitimate expectations, particularly following the interim injunctive orders issued in favour of the Plaintiff in October 2023. They averred that the proposed joinder of the Central Bank of Kenya at that stage would introduce extraneous and irrelevant issues not contemplated in the pleadings, thereby unnecessarily complicating the proceedings.
13. It was further contended that the Plaintiff had failed to demonstrate that the intended amicus curiae would offer any novel, expert or neutral contribution beyond the material already placed before the Court by the parties. The Defendants argued that permitting the joinder of the Central Bank of Kenya in an ordinary commercial dispute, without its own initiative or express consent, would set a dangerous precedent by politicising or improperly involving independent regulatory bodies in private litigation.
14. The Defendants further stated that if the Plaintiff had any grievance falling within the regulatory mandate of the Central Bank of Kenya, the proper recourse would have been to lodge a formal complaint with the regulator rather than seek to involve it in active litigation as a pseudo-party. Consequently, the Defendants described the Application as frivolous, vexatious and an afterthought intended solely to delay and frustrate the hearing of a matter that had remained pending for over three years, and urged the Court to dismiss the same with costs.
15. The application was canvassed by way of written submissions. The Plaintiff filed written submissions dated 15th October 2025, while the Defendant filed submissions dated 4th November 2025, which the Court has carefully considered.
Analysis and determination
16. The jurisprudence on amici curiae is now settled. In Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2015] eKLR, the Supreme Court set out guiding principles, including that an amicus must demonstrate expertise in the relevant field, must be independent and neutral, must not introduce new evidence, and must offer assistance not otherwise available from the parties.
17. The Supreme Court was also clear in the judgment that a party seeking to appear in any proceedings as amicus curiae should prepare an amicus brief, detailing the points of law set to be canvassed during oral presentation. This brief should accompany the motion seeking leave to be enjoined in the proceedings as amicus.
18. In Muruatetu & another v Republic [2016] eKLR, the Supreme Court further clarified that an amicus may be admitted either on the court’s own motion, upon application by the intended amicus, or at the request of a party to the proceedings. I therefore reject the Defendants’ contention that only the intended amicus may move the court for such joinder. The Plaintiff was entitled to invite the court to consider whether the participation of CBK would aid the court in resolving the dispute.
19. The mere fact that a party may move the court for admission of an amicus curiae does not, however, relieve the applicant of the obligation to demonstrate that the participation of the proposed amicus is necessary and will aid the court in the determination of the dispute.
20. The Plaintiff’s argument is that CBK’s expertise would assist the court in understanding the regulatory framework governing lending practices, interest computation, and consumer protection obligations applicable to banks. There is no dispute that CBK is the statutory regulator of banking institutions and that it exercises supervisory authority over commercial banks under the Central Bank Act.
21. The question, however, is whether the participation of CBK is necessary in this particular case. From the material before the court, the dispute concerns the lending relationship between the Plaintiff and the 1st Defendant, including the recovery of the loan facility and the legality of the charges and interest levied. These are issues that routinely fall for determination before the Commercial Division and are matters capable of resolution on the basis of the pleadings, evidence and submissions placed before the court by the parties.
22. I agree with the Defendant’s submissions that the Plaintiff has not demonstrated with precision the novel or specialized issue on which CBK’s participation would provide assistance beyond what the parties themselves can place before the court. While CBK is undoubtedly the regulator of banking institutions under the Central Bank Act, its general regulatory mandate does not automatically justify its admission into every commercial dispute involving a bank.
23. Further, the role of an amicus curiae is not to support the case of any party but to aid the court impartially. In the present case, the Plaintiff’s application is substantially anchored on the proposition that CBK would support the Plaintiff’s position concerning interest computation, consumer protection, and alleged unfair lending practices. The tenor of the application risks drawing the intended amicus into the arena of the dispute contrary to the requirement of neutrality emphasized in Trusted Society of Human Rights Alliance v Mumo Matemo (supra).
24. I also take into account the timing of the application. The suit was instituted in 2022, while the present application was filed in October 2025, shortly before the hearing of the matter. Although delay alone is not necessarily fatal, an application for admission of an amicus curiae must be made timeously so as not to prejudice the expeditious disposal of proceedings. The Plaintiff has not provided a satisfactory explanation why the need for the participation of CBK could not have been identified earlier in the proceedings.
25. In addition, CBK itself has neither sought joinder nor indicated willingness to participate in the proceedings as amicus curiae. While such consent is not an absolute legal requirement, the court must exercise caution before compelling an independent constitutional and statutory regulator to participate in private commercial litigation absent a demonstrated necessity.
26. In the premises, the court is not persuaded that the participation of CBK is necessary for the just determination of the dispute before it.
27. Accordingly, the Notice of Motion dated 30th September 2025 is therefore found to be without merit, and is dismissed with costs to the Defendants.
28. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Nyambega………………for the Applicant
Ms. Akiso……………for the Respondent