'Introduction
1. The Petitioner, a human rights non-governmental organization, filed the Petition dated 10th February 2023 assailing the alleged failure by the Government to accord convention refugees the right to seek and be considered for citizenship and/or permanent residence status. The Petitioner contends that this violates the Constitutional principles and international laws that are binding on Kenya.
2. Upon the filing of this suit, the Intended Interested Party and the Proposed Amicus Curiae, filed Applications seeking to join the Suit.
3. On the other hand, the Petitioner filed an application for empanelment of a bench to hear the matter.
4. These are the Applications that are now the focus of this Ruling.
The 1st Application
5. The Intended Interested Party in its Notice of Motion Application dated 7th March 2023 seek orders that:
i. Spent.
ii. Leave be granted to the Intended Interested Party to be admitted in this Petition as Interested Party.
iii. The intended Interested Party be granted an opportunity to submit Affidavits, written and oral arguments or any other information that may be relevant in this Petition.
iv. There be no costs concerning this Application.
6. The Application is supported by the Intended Interested Party’s affidavit, sworn on even date by Christine Nkonge and the grounds on the face of the Application.
7. She avers that the Intended Interested Party has litigated various constitutional questions before the High Court, Court of Appeal, and the Supreme Court. Further that its mandate and objectives are directly implicated in the questions raised before the Court in this Petition.
8. Particularly, she depones that the Intended Interested Party has participated in numerous cases that address the rights of refugees in Kenya such as Attorney-General v Kituo Cha Sheria & 7 Others, CA 108 of 2014 [2017] eKLR and Coalition for Reform and Democracy (CORD) & 2 Others v Republic & 10 Others, HC Pet. 628,630 of 2014 & 12 of 2015 (Consolidated) [2015] eKLR.
9. Moreover, it has been involved in cases regarding the application of international law under the Constitution such as Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others, SC Pet. 3 of 2018, [2021]eKLR, EG & 7 Others v Attorney-General, HC Pet. 150 & 234 of 2016 (consolidated),[2019] eKLR, Katiba Institute v Attorney-General & 3 Others, HC Const. Pet 7 of 2018 [2019] eKLR and Kamau v Attorney-General & 2 Others HC Const. Pet 244 of 2019 [2021] eKLR.
10. She asserts thus that the Intended Interested Party should be allowed to join the suit because of the identifiable stake, legal interest and duty it has concerning the dispute. Additionally, she states that no party will be prejudiced if its application is allowed.
Respondents’ Case
11. The Respondents filed Grounds of Opposition dated 27th March 2023 on the basis that:
i. The Application is merely an attempt to have the Petitioner’s case heard twice, which not only creates an unequal opportunity against the Respondents, but also is a waste of precious judicial time, considering this is an election matter and the strict constitutional and statutory timelines that attach to the same.
ii. The Applicants have not demonstrated that their purported interests will not be properly and accurately articulated unless the application is allowed.
iii. As correctly pointed out by the Petitioners at paragraph 24 of the Petition, the instant Petition is a public interest case and not a claim for reliefs in personam.
iv. The judgment to be rendered by this Court will be a judgement in rem thus the Applicants participation is of no significant effect.
v. The Applicant does not demonstrate any exceptional conditions that would render their non-joinder prejudicial to their interests.
vi. The Applicant herein merely indicates its litigation history, but does not outline the specific information it uniquely has, which is not availed by the Petitioner herein. It is key to note that both the Petitioner and Proposed Interested Party, are organizations which undertake Public Interest Litigation, and therefore there is no difference in the roles they play in this Petition.
vii. The Applicants have not demonstrated a clearly identifiable interest proximate enough to be distinguished from anything that it merely peripheral to the matters in issue.
viii. The Applicants have not demonstrated that their submissions will be useful to the Court and different from those of the Petitioners so that their non-joinder will result in the incomplete settlement of all the issues raised in the proceedings.
ix. The Applicants’ participation would only serve to delay the expeditious hearing of this petition and escalate litigation costs to the prejudice of the respondents.
Other Parties Case
12. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
Intended Interested Party’s Submissions
13. On 10th July 2023, this Party through its Counsel Eileen Imbosa filed submissions in this matter and highlighted the issue for discussion as: whether the Intended Interested Party has met the requirements to be admitted as an Interested Party.
14. Counsel relying in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and guidance in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR submitted that to be enjoined, three elements must be established: an identifiable stake or interest that must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral, the prejudice to be suffered by the Intended Interested party in case of non-joinder and the intended interested party must set out the case and or submissions it intends to make before the court and demonstrate the relevance of those submissions, and that those submissions are not a replica of what the other parties will be submitting to the Court.
15. Counsel submitted that the Intended Interested Party satisfies all these elements as can be gleaned from the Party’s Supporting Affidavit. Counsel stressed that considering the demonstrated interest in the case, the Intended Interested Party will be prejudiced if it is not allowed to uphold its mandate in defence of the Constitution.
16. Counsel noted that it was immaterial whether the Petitioner and the Intended Interested Party are both public interest litigation organizations as both have varied mandates and areas of expertise.
17. Counsel further submitted that this Party intends to submit that Sections 13(1)(b) and 37 of the (KCIA) are inconsistent with Article 15(2) of the Constitution, particularly concerning the additional burdens these sections impose on refugees. On this basis, Counsel urged that the Application should be allowed.
Respondents’ Submissions
18. The Respondents through Principal State Counsel, Deborah Were filed submissions dated 5th May 2025.
19. Counsel equally relying on Rule 2 of The Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 and the opine in Francis Karioki Muruatetu (supra) submitted that the Party had not demonstrated that its interest will not be properly articulated if their Application is not allowed. As such Counsel argued that the Party had not established a personal interest or stake that was proximate enough to occasion any prejudice to it.
20. Like dependence was placed in Attorney General v David Ndii & 73 others [2021] KESC 17 (KLR).
21. On the intended contribution, Counsel submitted that their intended contribution is the exact same position taken by the Petitioners which is contrary to the element that an interested Party’s contribution should not merely be a replica of what the other parties will make in Court. To that end, Counsel argued that the Application does not meet the threshold to be joined as an interested party.
The 2nd Application
22. The Proposed Amicus Curiae in its Notice of Motion application dated 16th March 2023 seek orders that:
i. Spent.
ii. The GLOBAL STRATEGIC LITIGATION COUNCIL FOR REFUGEE RIGHTS, be joined to this proceeding as an AMICUS CURIAE.
iii. Leave be granted to GLOBAL STRATEGIC LITIGATION COUNCIL FOR REFUGEE RIGHTS, to file its AMICUS BRIEF, upon receiving the various pleadings as filed in the instant Petition.
iv. Any other remedy that the court deems fit and just.
23. The Application is supported by the Proposed Amicus Curiae’s affidavit, sworn on the same date by Prof. Ian Matthew Kysel and the grounds on the face of the Application.
24. He makes known that this party is an institution jointly formed by the Migration and Human Rights Program at Cornell University and Zolberg Institute.
25. He states that the Proposed Amicus Curiae seeks to participate in this suit as such as has been engaged in advisory and technical capacity building all over the world with regard to refugee rights.
26. He avers that on this basis this Party has satisfied the principles of being joined in the suit and further purposes to remain neutral at all times.
Respondents Case
27. The Respondents in reaction to this Application filed its Grounds of Opposition dated 4th April 2023 on the grounds that:
i. The Applicant has failed to meet the test set out in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR for one to be admitted as amicus.
ii. The Applicant merely pleads its impartiality, but has not attached the amicus brief for parties and the Court to establish the same. This is despite the fact that the Petition was already availed to them.
iii. The Applicant has not highlighted any novel information or arguments that it will be raising in Court.
iv. The Applicant has not demonstrated its expertise on the subject matter, but rather, merely mentioned that it has participated in similar litigation before various courts and Tribunals across the world, without citing any of the cases as a sphere of reference for its expertise.
v. The Applicant is led by a Steering Committee comprised of Asylum Access, the Cornell Law School Migration and Human Rights Program, HIAS, Kituo Cha Sheria, the Migration and Asylum Project, Refugiados Unidos, and the Zolberg Institute on Migration and Mobility at the New School. From its composition, its clear that the Petitioner is in the Applicant’s Steering Committee and therefore it is not possible for the Applicant to claim impartiality in the present Petition.
vi. This is a shrewd attempt by the Petitioner to have a second bite at the cherry, by filing the Petition and influencing the amicus brief, which would be unfair and unjust to the Respondents.
vii. The Application is merely an attempt to have the Petitioner’s case heard twice, which not only creates an unequal opportunity against the Respondents, but also is a waste of precious judicial time, considering this is an election matter and the strict constitutional and statutory timelines that attach to the same.
viii. The Applicants have not demonstrated that their submissions will be useful to the Court and different from those of the Petitioners so that their non-joinder will result in the incomplete settlement of all the issues raised in the proceedings.
ix. The Applicants’ participation would only serve to delay the expeditious hearing of this Petition and escalate litigation costs to the prejudice of the Respondents.”
Other Parties Case
28. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
Proposed Amicus Curiae Submissions
29. This Party through Prof. Migai Akech & Associates, Advocates filed submissions dated 5th December 2023. Counsel set out issues for discussion as: what ought to be canvassed in a Grounds of Opposition and whether the proposed Amicus Curiae has met the legal threshold for admission.
30. On the first issue, Counsel submitted that Grounds of Opposition are supposed to only raise matters of law as guided by the Court of Appeal in Kennedy Otieno Odiyo & 12 Others v. Kenya Electricity Generating Company Limited [2010] eKLR as follows:
“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus, what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant’’.
31. Like dependence was placed in Daniel Kibet Mutai & 9 others v. the Attorney General [2019] eKLR.
32. Counsel argued that the Respondents in the grounds had asserted that the ‘Applicant is led by a Steering Committee comprised of Asylum Access, the Cornell Law School Migration and Human Rights Program, HIAS, Kituo Cha Sheria, the Migration and Asylum Project, Refugiados Unidos, and the Zolberg Institute on Migration and Mobility at the New School’, a matter which is a fact and would require evidence to be substantiated. Following this, it was argued that the Respondents ought to have substantiated the same by adducing evidence.
33. On the second issue, Counsel stated that the Supreme Court in Trusted Society of Human Rights Alliance (supra) directed that the guidelines that the Court should consider in such an application are:
a) 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.
b) The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
c) In proceedings before the Supreme Court, the Bench as constituted by the President of the Court, may exercise its discretion to admit or decline an application from a party seeking to appear in any proceedings as amicus curiae, and denial or acceptance such of an application should have finality.
d) The Court reserves the right to summarily examine amicus motions, accompanied by amicus briefs, on paper without any oral hearing.
e) The Court may also consider suggestions from parties to any proceedings, to have a particular person, State Organ or Organisation admitted in any proceedings as amicus curiae.
34. Counsel further noted that the Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission and Others & Ekuru Aukot, Presidential Petition No. 1 of 2017 held that joinder of a party is discretionary.
35. Counsel submitted that the Proposed Amicus Curiae’s primary allegiance in this matter lies with the Court and pursuit of justice, thus an impartial party. Counsel noted that the party commits to a detachment from the parties in the case and their respective interests, thereby ensuring its independence, safeguarding against any undue influence that could compromise its analysis and recommendations. It was noted that this party had demonstrated its wealth of legal expertise in its affidavit which it seeks to bring on board in this matter.
36. As such, Counsel submitted that the Party’s expertise will enhance the decision making in this matter by providing diverse perspectives and specialized knowledge that may not necessarily be available from the parties directly involved in the case.
Respondents’ Submissions
37. In opposition, the Respondents filed submissions through State Counsel, Jackline Kiramana dated 4th February 2024 where the single issue identified was whether the Applicant has met the threshold for joinder as an Amicus.
38. Counsel equally relied in the guidelines set out in Trusted Society of Human Rights Alliance(supra) and echoed by the Supreme Court in Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Kanjama (Intended Amicus Curiae) [2017] KESC 27 (KLR) and Attorney General v Ndii & 73 others; Akech (Intended Amicus Curiae) [2021] KESC 20 (KLR).
39. Counsel relying in the assertion in the Grounds of Opposition submitted that this Party was not capable of being impartial as one of its partners is the 1st Petitioner. Counsel stressed that this fact had not been disputed by the Proposed Amicus Curiae.
40. Counsel submitted that it was evident that the Party’s case can be advanced by the 1st Petitioner in this regard thus its joinder unnecessary and that the same would be in breach of the set principles for joinder of an amicus.
41. That said, Counsel submitted that the Party despite stating that it has expertise in the area did not adduce any evidence to confirm this. Considering this, it was argued that the instant Application fails to meet the threshold for joinder of a party as amicus curiae and thus ought to be dismissed.
The 3rd Application
42. The Petitioner in its Notice of Motion Application dated 1st September 2023 seeks orders that:
i. This Court be pleased to certify that the Petition herein raises substantial questions of law and forthwith refer the case to her Ladyship the Chief Justice for appointment of a bench of an uneven number of judges being not less than three(3) pursuant to Article 165(4) of the Constitution.
ii. The Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders if granted.
iii. The costs of this Application be in the cause.
43. The Application is supported by the Petitioner’s affidavit, sworn by Dr. Annette Mudola Mbogoh on 1st September 2023 and the grounds on the face of the Application.
44. She depones that the Petitioner has been running a forced migration program since 2008 through which it offers legal aid and psychological support to refugees in partnership with other organizations.
45. She avers that while Kenya has been hosting refugees since 1963, there was an influx of refugees and asylum seekers in the early 1990s from Somalia, Rwanda, Ethiopia and Sudan. As a result, the Government established Kakuma and Dadaab refugee camps in 1991 and 1992 respectively. By the end of 31st May 2023, Kenya had hosted 612,413 refugees and asylum seekers. It is noted that majority of the refugees and asylum seekers reside in the refugee camps with 16% residing in urban areas.
46. Furthermore, she depones that out of the 612,413 refugees and asylum seekers, only 97 have been granted resettlement in a third country while 68 have been repatriated to their Country of origin. It is stated that the delay in settlements of these parties, has caused donor fatigue and further, solutions for refugees have been deemed elusive.
47. It is asserted that owing to this and coupled with the interpretation of the Kenya Citizenship and Immigration Act by the 3rd Respondent, refugees have been denied access to durable solutions of local integration despite their stay in Kenya being lawful, permitted and regularized.
48. On this basis, it is alleged that the Petition raises novel issues on the immigration status of refugee status in Kenya. Moreover raises issues on whether there is discrimination against refugees in establishing lawful residence in Kenya, their eligibility to apply for citizenship by registration under Article 15( 2) of the Constitution, Kenya''s obligations and or duty to make an affirmative effort to enable refugees to meet the established requirements for naturalization under Article 34 of the 1951 Convention Relating to Refugee Status, whether there is good faith access to Class M work permits by refugees, whether failure to meet this duty by failing to provide reasons for refusal to grant Class M permits to most refugees who are eligible for such permits amount to presumptive breach of the duty to facilitate the assimilation and naturalization of refugees set by Art. 34 of the Refugee Convention, interpreted in line with contemporary international human rights law and that Section 13( 1) (b) of the Kenya Citizenship and Immigration Act are inconsistent with Article 15( 2), 27 and 28 of the Constitution.
49. She argues that these matters are complex and require a substantial amount of time to be disposed of. Additionally, she notes that the Petitioner will rely on an expert witness due to the complexity of this matter. Considering this, she urges that the Application be allowed.
Other Parties Case
50. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
1st Petitioner’s Submissions
51. The 1st Petitioner through its Counsel, Linet Opiyo filed submissions dated 9th August 2024.
52. Counsel submitted that Article 165(4) of the Constitution provides for certification of matters through empanelment of an uneven number of judges by the Chief Justice. Counsel submitted that the principles to be considered were set out in County Government Of Meru v Ethics And Anti-Corruption Commission [2014] KEHC 5287 (KLR) where it was held that:
“The principles which govern the exercise of discretion in an application such as the one before the court can be distilled as follows;
The grant of a certificate under Article 165(4) of the Constitution is an exception rather than the rule.
The substantial question of law is a question to be determined in the circumstances of the case. Substantial issue of law is not necessarily a weighty one or one that raises a novel issue of law or fact or even one that is complex. Many provisions of our Constitution are untested and bring forth novel issues yet is not every day that we call upon the Chief Justice to empanel a bench of not less than three judges.
Public interest may be considered but is not necessarily a decisive factor. It is in the nature of petitions filed to enforce the provisions of the Constitution to be matters of public interest generally.”
53. Like dependence was placed in Martin Nyaga and others vs Speaker County Assembly of Embu and 4 others and Amicus Curiae [2014] eKLR and Okiya Omtatah Okoiti and another vs President Uhuru Muigai Kenyatta and 4 others (2015) eKLR.
54. Counsel submitted that refugees’ issues are a matter of great public concern and interest. Moreover, this issue, is argued to be novel and complex hence warranting empanelment of a bench. Counsel further argued that the matter raises substantial questions of law which revolve around:
i. Whether section 13 (1) (b) of the Kenya Citizenship and Immigration Act is unconstitutional because its-purpose or effect -excludes refugees (despite their status being permitted, regularized stay of some duration, which is more and transit point) to be eligible to apply for citizenship and permanent residency that is available to other nationals who meet the residency requirement and hence violates Article 27 (1), (2) and (4) of the Constitution; Articles 2(6), 19(3) of the Constitution as read together with Articles 13 and 26, 15, 17 and 18 the Refugee Convention and Kenya''s obligations thereunder.
ii. Whether section 13(1) (b) of the Kenya Citizenship and Immigration Act is unconstitutional owing to its discriminatory nature because it excludes refugees from eligibility to apply for citizenship and permanent residency that is available to other nationals and hence violates Articles 27(1) (2) and (4)1 of the Constitution as read together with Articles 13 and 26, 15, 17 and 18 the Refugee Convention and Kenya''s obligations thereunder.
iii. Whether refugee status a good status for purposes of lawful residence contemplated in sections 13(1) (b) of the Kenya Citizenship and Immigration Act and hence the interpretation of those sections by 1st and 3rd Respondent that excludes refugees from eligible categories of status that constitute lawful residence contrary to the principle of rule of law under Article 10 of the Constitution.
iv. Whether sections 13{1) (b) of the Kenya Citizenship and Immigration Act unconstitutional because it is an illegal modification/ amendment to Article 15 (2) of the Constitution because its effect is to exclude refugees from eligibility to apply for citizenship.
v. Whether sections 13 and 37 of the Kenya Citizenship and Immigration Act through its implementation violates the right to equal protection and benefit of the law to the extent that failure to recognize refugee status as lawful under immigration law illegal and unfairly excludes them from being eligible to apply for permanent residency and citizenship
vi. Whether the endemic administrative blockages that beset the Class M (refugee) permit process are contrary to Article 7(1) of the Refugee Convention which enjoins Kenya to treat refugees at least as well as aliens generally and therefore discriminatory as non-refugees are thus positioned to meet the citizenship eligibility requirements of s.13{1)(b) of the Kenya Citizenship and Immigration Act and hence by extension the requirements of Article 15(2) of the Constitution in a way that refugees are not.
55. Based on these issues, Counsel submitted that the Petition meets the threshold for certification.
Respondents’ Submissions
56. Counsel for the Respondents, Jackline Kiramana filed submissions dated 4th September 2024.
57. In like fashion, Counsel submitted that what constitutes a substantial question of law was discussed in J. Harrison Kinyanjui V Attorney General & Another [2012] eKLR as follows:
“Therefore, giving meaning to “substantial question” must take into account the provisions of the Constitution as a whole and need to dispense justice without delay particularly given a specific fact situation. In other words, each case must be considered on its merits by the judge certifying the matter. It must also be remembered that each High Court judge, has authority under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court. Further, and notwithstanding the provisions of Article 165(4), the decision of a three Judge bench is of equal force to that of a single judge exercising the same jurisdiction. A single judge deciding a matter is not obliged to follow a decision of the court delivered by three judges.”
58. Additional dependence was placed in Wycliff Ambetsa Oparanya & 2 Others vs Director of Public Prosecutions 7 Anor (2016) Eklr, Chunilal V. Mehta vs Century Spinning and Manufacturing Co. AIR 1962 SC 1314 and Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 and County Government of Meru (supra).
59. Counsel emphasized that on a strict application of the test for empanelment, every case dealing with the interpretation of the Constitution or application of the bill of rights would be a substantial question of law, however such strict application would occasion grave burden to the already threatened judicial resources to the extent that the value of obtaining justice without delay under Article 159(2) (b) would never be realized. That said, Counsel submitted that the burden to prove such a matter falls squarely on the 1st Petitioner.
60. According to Counsel, the issues raised herein are capable of being fully determined by a single Judge and thus does not meet the test set out under Article 165(4) of the Constitution.
Analysis and Determination
61. Three issues commend themselves for determination in this Ruling, namely:
i. Whether the Application for joinder of the Intended Interested Party should be allowed.
ii. Whether the Proposed Amicus Curiae Application for joinder should be allowed.
iii. Whether the Petitioners’ Application for empanelment of a bench has met the requisite threshold.
Whether the Application for joinder of the Intended Interested Party should be allowed
62. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 has provided an explicit meaning of ‘Interested Party’ under Rule 2 which states:
‘a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation’.
63. An interested party may be added as provided under Rule 5 (d) (ii) which states:
(i) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
64. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) discussed joinder of an interested party as follows:
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
[24] We ask ourselves the following questions:
(a)
[...truncated]
1. The Petitioner, a human rights non-governmental organization, filed the Petition dated 10th February 2023 assailing the alleged failure by the Government to accord convention refugees the right to seek and be considered for citizenship and/or permanent residence status. The Petitioner contends that this violates the Constitutional principles and international laws that are binding on Kenya.
2. Upon the filing of this suit, the Intended Interested Party and the Proposed Amicus Curiae, filed Applications seeking to join the Suit.
3. On the other hand, the Petitioner filed an application for empanelment of a bench to hear the matter.
4. These are the Applications that are now the focus of this Ruling.
The 1st Application
5. The Intended Interested Party in its Notice of Motion Application dated 7th March 2023 seek orders that:
i. Spent.
ii. Leave be granted to the Intended Interested Party to be admitted in this Petition as Interested Party.
iii. The intended Interested Party be granted an opportunity to submit Affidavits, written and oral arguments or any other information that may be relevant in this Petition.
iv. There be no costs concerning this Application.
6. The Application is supported by the Intended Interested Party’s affidavit, sworn on even date by Christine Nkonge and the grounds on the face of the Application.
7. She avers that the Intended Interested Party has litigated various constitutional questions before the High Court, Court of Appeal, and the Supreme Court. Further that its mandate and objectives are directly implicated in the questions raised before the Court in this Petition.
8. Particularly, she depones that the Intended Interested Party has participated in numerous cases that address the rights of refugees in Kenya such as Attorney-General v Kituo Cha Sheria & 7 Others, CA 108 of 2014 [2017] eKLR and Coalition for Reform and Democracy (CORD) & 2 Others v Republic & 10 Others, HC Pet. 628,630 of 2014 & 12 of 2015 (Consolidated) [2015] eKLR.
9. Moreover, it has been involved in cases regarding the application of international law under the Constitution such as Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others, SC Pet. 3 of 2018, [2021]eKLR, EG & 7 Others v Attorney-General, HC Pet. 150 & 234 of 2016 (consolidated),[2019] eKLR, Katiba Institute v Attorney-General & 3 Others, HC Const. Pet 7 of 2018 [2019] eKLR and Kamau v Attorney-General & 2 Others HC Const. Pet 244 of 2019 [2021] eKLR.
10. She asserts thus that the Intended Interested Party should be allowed to join the suit because of the identifiable stake, legal interest and duty it has concerning the dispute. Additionally, she states that no party will be prejudiced if its application is allowed.
Respondents’ Case
11. The Respondents filed Grounds of Opposition dated 27th March 2023 on the basis that:
i. The Application is merely an attempt to have the Petitioner’s case heard twice, which not only creates an unequal opportunity against the Respondents, but also is a waste of precious judicial time, considering this is an election matter and the strict constitutional and statutory timelines that attach to the same.
ii. The Applicants have not demonstrated that their purported interests will not be properly and accurately articulated unless the application is allowed.
iii. As correctly pointed out by the Petitioners at paragraph 24 of the Petition, the instant Petition is a public interest case and not a claim for reliefs in personam.
iv. The judgment to be rendered by this Court will be a judgement in rem thus the Applicants participation is of no significant effect.
v. The Applicant does not demonstrate any exceptional conditions that would render their non-joinder prejudicial to their interests.
vi. The Applicant herein merely indicates its litigation history, but does not outline the specific information it uniquely has, which is not availed by the Petitioner herein. It is key to note that both the Petitioner and Proposed Interested Party, are organizations which undertake Public Interest Litigation, and therefore there is no difference in the roles they play in this Petition.
vii. The Applicants have not demonstrated a clearly identifiable interest proximate enough to be distinguished from anything that it merely peripheral to the matters in issue.
viii. The Applicants have not demonstrated that their submissions will be useful to the Court and different from those of the Petitioners so that their non-joinder will result in the incomplete settlement of all the issues raised in the proceedings.
ix. The Applicants’ participation would only serve to delay the expeditious hearing of this petition and escalate litigation costs to the prejudice of the respondents.
Other Parties Case
12. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
Intended Interested Party’s Submissions
13. On 10th July 2023, this Party through its Counsel Eileen Imbosa filed submissions in this matter and highlighted the issue for discussion as: whether the Intended Interested Party has met the requirements to be admitted as an Interested Party.
14. Counsel relying in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and guidance in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR submitted that to be enjoined, three elements must be established: an identifiable stake or interest that must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral, the prejudice to be suffered by the Intended Interested party in case of non-joinder and the intended interested party must set out the case and or submissions it intends to make before the court and demonstrate the relevance of those submissions, and that those submissions are not a replica of what the other parties will be submitting to the Court.
15. Counsel submitted that the Intended Interested Party satisfies all these elements as can be gleaned from the Party’s Supporting Affidavit. Counsel stressed that considering the demonstrated interest in the case, the Intended Interested Party will be prejudiced if it is not allowed to uphold its mandate in defence of the Constitution.
16. Counsel noted that it was immaterial whether the Petitioner and the Intended Interested Party are both public interest litigation organizations as both have varied mandates and areas of expertise.
17. Counsel further submitted that this Party intends to submit that Sections 13(1)(b) and 37 of the (KCIA) are inconsistent with Article 15(2) of the Constitution, particularly concerning the additional burdens these sections impose on refugees. On this basis, Counsel urged that the Application should be allowed.
Respondents’ Submissions
18. The Respondents through Principal State Counsel, Deborah Were filed submissions dated 5th May 2025.
19. Counsel equally relying on Rule 2 of The Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 and the opine in Francis Karioki Muruatetu (supra) submitted that the Party had not demonstrated that its interest will not be properly articulated if their Application is not allowed. As such Counsel argued that the Party had not established a personal interest or stake that was proximate enough to occasion any prejudice to it.
20. Like dependence was placed in Attorney General v David Ndii & 73 others [2021] KESC 17 (KLR).
21. On the intended contribution, Counsel submitted that their intended contribution is the exact same position taken by the Petitioners which is contrary to the element that an interested Party’s contribution should not merely be a replica of what the other parties will make in Court. To that end, Counsel argued that the Application does not meet the threshold to be joined as an interested party.
The 2nd Application
22. The Proposed Amicus Curiae in its Notice of Motion application dated 16th March 2023 seek orders that:
i. Spent.
ii. The GLOBAL STRATEGIC LITIGATION COUNCIL FOR REFUGEE RIGHTS, be joined to this proceeding as an AMICUS CURIAE.
iii. Leave be granted to GLOBAL STRATEGIC LITIGATION COUNCIL FOR REFUGEE RIGHTS, to file its AMICUS BRIEF, upon receiving the various pleadings as filed in the instant Petition.
iv. Any other remedy that the court deems fit and just.
23. The Application is supported by the Proposed Amicus Curiae’s affidavit, sworn on the same date by Prof. Ian Matthew Kysel and the grounds on the face of the Application.
24. He makes known that this party is an institution jointly formed by the Migration and Human Rights Program at Cornell University and Zolberg Institute.
25. He states that the Proposed Amicus Curiae seeks to participate in this suit as such as has been engaged in advisory and technical capacity building all over the world with regard to refugee rights.
26. He avers that on this basis this Party has satisfied the principles of being joined in the suit and further purposes to remain neutral at all times.
Respondents Case
27. The Respondents in reaction to this Application filed its Grounds of Opposition dated 4th April 2023 on the grounds that:
i. The Applicant has failed to meet the test set out in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR for one to be admitted as amicus.
ii. The Applicant merely pleads its impartiality, but has not attached the amicus brief for parties and the Court to establish the same. This is despite the fact that the Petition was already availed to them.
iii. The Applicant has not highlighted any novel information or arguments that it will be raising in Court.
iv. The Applicant has not demonstrated its expertise on the subject matter, but rather, merely mentioned that it has participated in similar litigation before various courts and Tribunals across the world, without citing any of the cases as a sphere of reference for its expertise.
v. The Applicant is led by a Steering Committee comprised of Asylum Access, the Cornell Law School Migration and Human Rights Program, HIAS, Kituo Cha Sheria, the Migration and Asylum Project, Refugiados Unidos, and the Zolberg Institute on Migration and Mobility at the New School. From its composition, its clear that the Petitioner is in the Applicant’s Steering Committee and therefore it is not possible for the Applicant to claim impartiality in the present Petition.
vi. This is a shrewd attempt by the Petitioner to have a second bite at the cherry, by filing the Petition and influencing the amicus brief, which would be unfair and unjust to the Respondents.
vii. The Application is merely an attempt to have the Petitioner’s case heard twice, which not only creates an unequal opportunity against the Respondents, but also is a waste of precious judicial time, considering this is an election matter and the strict constitutional and statutory timelines that attach to the same.
viii. The Applicants have not demonstrated that their submissions will be useful to the Court and different from those of the Petitioners so that their non-joinder will result in the incomplete settlement of all the issues raised in the proceedings.
ix. The Applicants’ participation would only serve to delay the expeditious hearing of this Petition and escalate litigation costs to the prejudice of the Respondents.”
Other Parties Case
28. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
Proposed Amicus Curiae Submissions
29. This Party through Prof. Migai Akech & Associates, Advocates filed submissions dated 5th December 2023. Counsel set out issues for discussion as: what ought to be canvassed in a Grounds of Opposition and whether the proposed Amicus Curiae has met the legal threshold for admission.
30. On the first issue, Counsel submitted that Grounds of Opposition are supposed to only raise matters of law as guided by the Court of Appeal in Kennedy Otieno Odiyo & 12 Others v. Kenya Electricity Generating Company Limited [2010] eKLR as follows:
“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus, what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant’’.
31. Like dependence was placed in Daniel Kibet Mutai & 9 others v. the Attorney General [2019] eKLR.
32. Counsel argued that the Respondents in the grounds had asserted that the ‘Applicant is led by a Steering Committee comprised of Asylum Access, the Cornell Law School Migration and Human Rights Program, HIAS, Kituo Cha Sheria, the Migration and Asylum Project, Refugiados Unidos, and the Zolberg Institute on Migration and Mobility at the New School’, a matter which is a fact and would require evidence to be substantiated. Following this, it was argued that the Respondents ought to have substantiated the same by adducing evidence.
33. On the second issue, Counsel stated that the Supreme Court in Trusted Society of Human Rights Alliance (supra) directed that the guidelines that the Court should consider in such an application are:
a) 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.
b) The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
c) In proceedings before the Supreme Court, the Bench as constituted by the President of the Court, may exercise its discretion to admit or decline an application from a party seeking to appear in any proceedings as amicus curiae, and denial or acceptance such of an application should have finality.
d) The Court reserves the right to summarily examine amicus motions, accompanied by amicus briefs, on paper without any oral hearing.
e) The Court may also consider suggestions from parties to any proceedings, to have a particular person, State Organ or Organisation admitted in any proceedings as amicus curiae.
34. Counsel further noted that the Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission and Others & Ekuru Aukot, Presidential Petition No. 1 of 2017 held that joinder of a party is discretionary.
35. Counsel submitted that the Proposed Amicus Curiae’s primary allegiance in this matter lies with the Court and pursuit of justice, thus an impartial party. Counsel noted that the party commits to a detachment from the parties in the case and their respective interests, thereby ensuring its independence, safeguarding against any undue influence that could compromise its analysis and recommendations. It was noted that this party had demonstrated its wealth of legal expertise in its affidavit which it seeks to bring on board in this matter.
36. As such, Counsel submitted that the Party’s expertise will enhance the decision making in this matter by providing diverse perspectives and specialized knowledge that may not necessarily be available from the parties directly involved in the case.
Respondents’ Submissions
37. In opposition, the Respondents filed submissions through State Counsel, Jackline Kiramana dated 4th February 2024 where the single issue identified was whether the Applicant has met the threshold for joinder as an Amicus.
38. Counsel equally relied in the guidelines set out in Trusted Society of Human Rights Alliance(supra) and echoed by the Supreme Court in Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Kanjama (Intended Amicus Curiae) [2017] KESC 27 (KLR) and Attorney General v Ndii & 73 others; Akech (Intended Amicus Curiae) [2021] KESC 20 (KLR).
39. Counsel relying in the assertion in the Grounds of Opposition submitted that this Party was not capable of being impartial as one of its partners is the 1st Petitioner. Counsel stressed that this fact had not been disputed by the Proposed Amicus Curiae.
40. Counsel submitted that it was evident that the Party’s case can be advanced by the 1st Petitioner in this regard thus its joinder unnecessary and that the same would be in breach of the set principles for joinder of an amicus.
41. That said, Counsel submitted that the Party despite stating that it has expertise in the area did not adduce any evidence to confirm this. Considering this, it was argued that the instant Application fails to meet the threshold for joinder of a party as amicus curiae and thus ought to be dismissed.
The 3rd Application
42. The Petitioner in its Notice of Motion Application dated 1st September 2023 seeks orders that:
i. This Court be pleased to certify that the Petition herein raises substantial questions of law and forthwith refer the case to her Ladyship the Chief Justice for appointment of a bench of an uneven number of judges being not less than three(3) pursuant to Article 165(4) of the Constitution.
ii. The Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders if granted.
iii. The costs of this Application be in the cause.
43. The Application is supported by the Petitioner’s affidavit, sworn by Dr. Annette Mudola Mbogoh on 1st September 2023 and the grounds on the face of the Application.
44. She depones that the Petitioner has been running a forced migration program since 2008 through which it offers legal aid and psychological support to refugees in partnership with other organizations.
45. She avers that while Kenya has been hosting refugees since 1963, there was an influx of refugees and asylum seekers in the early 1990s from Somalia, Rwanda, Ethiopia and Sudan. As a result, the Government established Kakuma and Dadaab refugee camps in 1991 and 1992 respectively. By the end of 31st May 2023, Kenya had hosted 612,413 refugees and asylum seekers. It is noted that majority of the refugees and asylum seekers reside in the refugee camps with 16% residing in urban areas.
46. Furthermore, she depones that out of the 612,413 refugees and asylum seekers, only 97 have been granted resettlement in a third country while 68 have been repatriated to their Country of origin. It is stated that the delay in settlements of these parties, has caused donor fatigue and further, solutions for refugees have been deemed elusive.
47. It is asserted that owing to this and coupled with the interpretation of the Kenya Citizenship and Immigration Act by the 3rd Respondent, refugees have been denied access to durable solutions of local integration despite their stay in Kenya being lawful, permitted and regularized.
48. On this basis, it is alleged that the Petition raises novel issues on the immigration status of refugee status in Kenya. Moreover raises issues on whether there is discrimination against refugees in establishing lawful residence in Kenya, their eligibility to apply for citizenship by registration under Article 15( 2) of the Constitution, Kenya''s obligations and or duty to make an affirmative effort to enable refugees to meet the established requirements for naturalization under Article 34 of the 1951 Convention Relating to Refugee Status, whether there is good faith access to Class M work permits by refugees, whether failure to meet this duty by failing to provide reasons for refusal to grant Class M permits to most refugees who are eligible for such permits amount to presumptive breach of the duty to facilitate the assimilation and naturalization of refugees set by Art. 34 of the Refugee Convention, interpreted in line with contemporary international human rights law and that Section 13( 1) (b) of the Kenya Citizenship and Immigration Act are inconsistent with Article 15( 2), 27 and 28 of the Constitution.
49. She argues that these matters are complex and require a substantial amount of time to be disposed of. Additionally, she notes that the Petitioner will rely on an expert witness due to the complexity of this matter. Considering this, she urges that the Application be allowed.
Other Parties Case
50. The other Parties’ responses to this Application are not in the Court file or Court Online Platform (CTS).
1st Petitioner’s Submissions
51. The 1st Petitioner through its Counsel, Linet Opiyo filed submissions dated 9th August 2024.
52. Counsel submitted that Article 165(4) of the Constitution provides for certification of matters through empanelment of an uneven number of judges by the Chief Justice. Counsel submitted that the principles to be considered were set out in County Government Of Meru v Ethics And Anti-Corruption Commission [2014] KEHC 5287 (KLR) where it was held that:
“The principles which govern the exercise of discretion in an application such as the one before the court can be distilled as follows;
The grant of a certificate under Article 165(4) of the Constitution is an exception rather than the rule.
The substantial question of law is a question to be determined in the circumstances of the case. Substantial issue of law is not necessarily a weighty one or one that raises a novel issue of law or fact or even one that is complex. Many provisions of our Constitution are untested and bring forth novel issues yet is not every day that we call upon the Chief Justice to empanel a bench of not less than three judges.
Public interest may be considered but is not necessarily a decisive factor. It is in the nature of petitions filed to enforce the provisions of the Constitution to be matters of public interest generally.”
53. Like dependence was placed in Martin Nyaga and others vs Speaker County Assembly of Embu and 4 others and Amicus Curiae [2014] eKLR and Okiya Omtatah Okoiti and another vs President Uhuru Muigai Kenyatta and 4 others (2015) eKLR.
54. Counsel submitted that refugees’ issues are a matter of great public concern and interest. Moreover, this issue, is argued to be novel and complex hence warranting empanelment of a bench. Counsel further argued that the matter raises substantial questions of law which revolve around:
i. Whether section 13 (1) (b) of the Kenya Citizenship and Immigration Act is unconstitutional because its-purpose or effect -excludes refugees (despite their status being permitted, regularized stay of some duration, which is more and transit point) to be eligible to apply for citizenship and permanent residency that is available to other nationals who meet the residency requirement and hence violates Article 27 (1), (2) and (4) of the Constitution; Articles 2(6), 19(3) of the Constitution as read together with Articles 13 and 26, 15, 17 and 18 the Refugee Convention and Kenya''s obligations thereunder.
ii. Whether section 13(1) (b) of the Kenya Citizenship and Immigration Act is unconstitutional owing to its discriminatory nature because it excludes refugees from eligibility to apply for citizenship and permanent residency that is available to other nationals and hence violates Articles 27(1) (2) and (4)1 of the Constitution as read together with Articles 13 and 26, 15, 17 and 18 the Refugee Convention and Kenya''s obligations thereunder.
iii. Whether refugee status a good status for purposes of lawful residence contemplated in sections 13(1) (b) of the Kenya Citizenship and Immigration Act and hence the interpretation of those sections by 1st and 3rd Respondent that excludes refugees from eligible categories of status that constitute lawful residence contrary to the principle of rule of law under Article 10 of the Constitution.
iv. Whether sections 13{1) (b) of the Kenya Citizenship and Immigration Act unconstitutional because it is an illegal modification/ amendment to Article 15 (2) of the Constitution because its effect is to exclude refugees from eligibility to apply for citizenship.
v. Whether sections 13 and 37 of the Kenya Citizenship and Immigration Act through its implementation violates the right to equal protection and benefit of the law to the extent that failure to recognize refugee status as lawful under immigration law illegal and unfairly excludes them from being eligible to apply for permanent residency and citizenship
vi. Whether the endemic administrative blockages that beset the Class M (refugee) permit process are contrary to Article 7(1) of the Refugee Convention which enjoins Kenya to treat refugees at least as well as aliens generally and therefore discriminatory as non-refugees are thus positioned to meet the citizenship eligibility requirements of s.13{1)(b) of the Kenya Citizenship and Immigration Act and hence by extension the requirements of Article 15(2) of the Constitution in a way that refugees are not.
55. Based on these issues, Counsel submitted that the Petition meets the threshold for certification.
Respondents’ Submissions
56. Counsel for the Respondents, Jackline Kiramana filed submissions dated 4th September 2024.
57. In like fashion, Counsel submitted that what constitutes a substantial question of law was discussed in J. Harrison Kinyanjui V Attorney General & Another [2012] eKLR as follows:
“Therefore, giving meaning to “substantial question” must take into account the provisions of the Constitution as a whole and need to dispense justice without delay particularly given a specific fact situation. In other words, each case must be considered on its merits by the judge certifying the matter. It must also be remembered that each High Court judge, has authority under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court. Further, and notwithstanding the provisions of Article 165(4), the decision of a three Judge bench is of equal force to that of a single judge exercising the same jurisdiction. A single judge deciding a matter is not obliged to follow a decision of the court delivered by three judges.”
58. Additional dependence was placed in Wycliff Ambetsa Oparanya & 2 Others vs Director of Public Prosecutions 7 Anor (2016) Eklr, Chunilal V. Mehta vs Century Spinning and Manufacturing Co. AIR 1962 SC 1314 and Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 and County Government of Meru (supra).
59. Counsel emphasized that on a strict application of the test for empanelment, every case dealing with the interpretation of the Constitution or application of the bill of rights would be a substantial question of law, however such strict application would occasion grave burden to the already threatened judicial resources to the extent that the value of obtaining justice without delay under Article 159(2) (b) would never be realized. That said, Counsel submitted that the burden to prove such a matter falls squarely on the 1st Petitioner.
60. According to Counsel, the issues raised herein are capable of being fully determined by a single Judge and thus does not meet the test set out under Article 165(4) of the Constitution.
Analysis and Determination
61. Three issues commend themselves for determination in this Ruling, namely:
i. Whether the Application for joinder of the Intended Interested Party should be allowed.
ii. Whether the Proposed Amicus Curiae Application for joinder should be allowed.
iii. Whether the Petitioners’ Application for empanelment of a bench has met the requisite threshold.
Whether the Application for joinder of the Intended Interested Party should be allowed
62. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 has provided an explicit meaning of ‘Interested Party’ under Rule 2 which states:
‘a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation’.
63. An interested party may be added as provided under Rule 5 (d) (ii) which states:
(i) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
64. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) discussed joinder of an interested party as follows:
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
[24] We ask ourselves the following questions:
(a)
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