While such jurisdictions require amicus to have bona fide interest in the matter, our practice is that amicus ought to come into the proceedings on a foundation of neutrality; and by virtue of the express terms of the Constitution, parties with an interest in the proceedings are accommodated in the capacity of interveners.

Amicus participation is a matter of privilege, rather than of right. And “intervention” in a case, as provided under Rule 25 of the Supreme Court Rules, 2012 allows parties with sufficient interest in the matter to apply to be enjoined as interveners or interested parties. This avenue is set apart from that of amicus. As opposed to amicus, interveners have an interest in the rest of the suit, as to be affected by the resulting Judgment of the Court. Amicus curiae on the other hand, are “advisors to the Court”, and not to the parties, and are in no way bound by the resulting Judgment, except by way of precedent. Amici curiae cannot be perceived as an extension of the Court; and they are not to advance any party’s case, and ought not to extend their participation to the realm of interveners in any legal proceedings. The interposition of amici in judicial proceedings is terminated when they have put forward the points of law outlined in their amici brief.
There is, however, an exception in amicus interventions, in the case of advisory-opinion proceedings before this Court, as signaled in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No.2 of 2011. The absence of a live controversy in such proceedings opens a window for the amicus to steer the Court, by specific proposals, towards a definite legal position. The ultimate decision, however, lies with the Court.

In the High Court case, Justice Phillip K. Tunoi & Another v. Judicial Service Commission & 2 Others (op. cit) (at para.30), Mr. Justice Odunga had aptly observed, in relation to amicus status in Kenya today, thus:

“It is unfortunate that in this country, unlike in other jurisdictions with an advanced Constitution such as ours, we do not have in place comprehensive rules which govern the admission of persons as amici in legal proceedings