The Nairobi High Court has declined an application by Paradigm Initiative (PIN) to participate in a constitutional petition involving social media platform X Corp, ruling that the organisation could not be seen as a neutral party in the matter.
The ruling came in a case filed by Felix Kibet, who has petitioned the court to compel X Corp (formerly Twitter) to delete Kenyan user accounts registered under aliases or unofficial names.
He is also seeking judicial orders to force the company to remove content he terms pornographic, hateful, lewd, or disrespectful, and to mandate state oversight ensuring digital platforms comply with the Constitution.
PIN had sought to join the proceedings as amicus curiae, or “friend of the court”, citing its expertise in digital rights and anonymity in online spaces.
The organisation argued that the petition raised weighty issues that touched on freedom of expression, privacy, and digital regulation, areas where it claimed deep familiarity and experience, both locally and internationally.
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It told the court that it intended to address two main questions: “anonymity of digital users vis-à-vis the right to freedom of expression and the right to privacy” as well as “the international and domestic legal framework.”
PIN maintained that its involvement would be impartial and would assist the court in navigating the complex legal terrain that was still relatively uncharted in Kenya.
However, both the petitioner and the Communications Authority of Kenya (CA) objected to PIN’s participation. They argued that the group had taken a position that aligned with one side in the dispute and therefore could not be considered neutral.
The court agreed, pointing to the Supreme Court’s criteria for admitting amicus curiae laid down in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others.
These criteria include that such a party must present original legal perspectives, avoid repetition of arguments already raised, and remain wholly neutral.
Although the judge acknowledged the organisation’s credentials in digital rights advocacy, the court found reason to question its impartiality.
“While undoubtedly PIN had the requisite expertise to serve as a friend of the Court, it was inclined to agree with the petitioner and the 3rd respondent that the Brief can be reasonably interpreted as advocating one side over another in the present case, admittedly either without it expressly doing so or seeking to do so.”
The judge further noted that PIN had already published commentary relevant to the issues at stake in the case.
In particular, its report titled Devolved Impunity – The State of Safety and Security of Bloggers in Kenya was cited as evidence of the group’s public stance on matters before the court. The judge concluded that this prior work undermined PIN’s claim to neutrality.
“For those reasons, the application has failed the Supreme Court’s test in Trust Society as there is a reasonable perception of partisanship in the Brief or the nature of the applicant that can be ascribed to the applicant’s intention to join as an Amicus Curiae; and also based on its prior and ongoing role within commentary on digital freedom and the state of freedom of expression in Kenya and Africa as a whole,” the judge added.
As a result, the court dismissed PIN’s application, reinforcing the requirement that amicus curiae must not only appear neutral but must be perceived as such by the court and all parties.
The petition itself continues, raising fundamental questions about the regulation of speech and identity in digital spaces, and the extent to which the State must intervene to ensure online platforms conform to constitutional standards.
