Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others [2022] KESC 49 (KLR)

Khalifa & 3 others v Independent Electoral and Boundaries Commission & 3 others (Presidential Election Petition E003 of 2022) [2022] KESC 49 (KLR) (Election Petitions) (30 August 2022) (Ruling)

Neutral citation: [2022] KESC 49 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Election Petitions

Presidential Election Petition E003 of 2022

MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ

August 30, 2022

Between

Khelef Khalifa

1st Petitioner

Grace Kamau

2nd Petitioner

Ruth Mumbi

3rd Petitioner

Grace Kamau

4th Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Chairperson of the Independent Electoral and Boundaries Commission

2nd Respondent

William Ruto

3rd Respondent

Attorney General

4th Respondent

(Being an application by the 3rd respondent to strike out the name of the Attorney General in Petition E003 of 2022. )

Supreme Court dismisses application filed out of time.

Reported by John Ribia

Electoral Law– presidential election petition – applications – applications filed out of time – whether in determining applications in the presidential election petition, the Supreme Court could determine an application filed out of time – Supreme Court (Presidential Election Petition) Rules, 2017, rule 17.

Brief facts The 3rd respondent filed the application in which he sought leave to strike out the name of the Attorney General in petition No. E003 of 2022 on grounds of misjoinder, outside the prescribed time limits.

Issues Whether in determining applications in the presidential election petition, the Supreme Court could determine an application filed out of time.

Held The application was filed out of time. It was incompetent and an abuse of court process. In any event, the court had determined the issue in the said application in its ruling delivered on the August 29, 2022 in Petition E002 of 2022.

Application dismissed.

Citations CasesNone referred toStatutesKenyaSupreme Court (Presidential Election Petition) Rules, 2017 (cap 9B Sub Leg) rule 17 - (Interpreted)AdvocatesNone mentioned

Ruling

1. This application is dated the August 27, 2022 and filed on the August 29, 2022 by William Samoei Ruto, (the 3rd respondent). He seeks leave to strike out the name of the Attorney General in Petition No E003 of 2022 on grounds of misjoinder. It is supported by the affidavit of William Samoei Ruto, sworn on the 27th August, 2022 and filed on the August 29, 2022. It is brought pursuant to rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017.

2. We have considered the application, affidavit in support, as well as the petitioners’ replying affidavit and submissions in opposition thereto. We find that the application, which was filed on the August 29, 2022 at 4:45 pm was filed out of time, is therefore incompetent and an abuse of the court process. In any event, the court has determined the issue in the said application in its ruling delivered on the August 29, 2022 in Petition E002 of 2022.

3. Consequently, the application is hereby dismissed with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF AUGUST, 2022. .................................M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT.................................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT.................................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT.................................S. C. WANJALAJUSTICE OF THE SUPREME COURT.................................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT.................................I. LENAOLAJUSTICE OF THE SUPREME COURT.................................W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA