Khelef Khalifa & 2 others v Chairperson, Independent Electoral & Boundaries Commission & Independent Electoral & Boundaries Commission ; Adrian Kamotho Njenga (Intended Interested Party) [2019] KESC 78 (KLR)

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga, CJ & P, Ibrahim, Wanjala, Njoki & Lenaola,  SCJJ)

PETITION (APPLICATION) NO. 17 OF 2017

-BETWEEN-

KHELEF KHALIFA....................................................1ST PETITIONER

SAMWEL M. MOHOCHI...........................................2ND PETITIONER

NAHASHON G. KAMAU.............................................3RD PETITIONER

-AND-

CHAIRPERSON, INDEPENDENT

ELECTORAL & BOUNDARIES COMMISSION...1ST RESPONDENT

INDEPENDENT ELECTORAL

& BOUNDARIES COMMISSION.............................2ND RESPONDENT

-AND-

ADRIAN KAMOTHO NJENGA......INTENDED INTERESTED PARTY

(Being an Application for leave to be enjoined as an Interested Party brought under Articles 2(1), 3(1), 10, 19, 20, 21, 22, 27, 159, 160, 163, 258 and 259 of the Constitution, Section 3 of the Supreme Court Act and Rule 25 of the Supreme Court Rules, 2012)

RULING OF THE COURT

[1]This is a Notice of Motion Application dated 25th October, 2017 and filed on even date by Adrian Kamotho Njenga, seeking to be enjoined as an Interested Party in the substantive appeal before us.

[2]The Application is supported by the Applicant’s affidavit sworn on 25th October, 2017. The Applicant urges that he has a legitimate interest to be enjoined in the proceeding, since he proposes to argue matters of “crucial public interest”. He takes the position that the Court has no jurisdiction to entertain the substantive appeal, as the subject matter therein does not arise under Article 140 of the Constitution. Further, he proposes that the petitioners have not exhausted the available judicial avenues, before approaching this Court.

[3]Having considered the Application and even without the benefit of other parties’ responses, it is our finding that the Applicant has not satisfied the conditions for admission as an Interested Party as set out in the cases of  Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 OthersSupreme Court Petition No. 12 of 2013; [2014] eKLR and Francis Karioki Muruatetu & Another v. Republic & 5 Others SC Petition No. 15 & 16 of 2015; [2016] eKLR. We say so because the applicant has not demonstrated how he will be affected by the ultimate decision of the Court or what prejudice he will suffer if he is not enjoined. In addition, the applicant’s proposed arguments are not novel, but rather a replication of what is already before the Court.

ORDERS

(a) The Notice of Motion dated 25th October, 2017 is hereby dismissed.

(b) No Orders as to costs.

Orders accordingly.

DATED and DELIVERED at NAIROBI this 8th day, of May, 2019.

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D. K. MARAGA                                                              M. K. IBRAHIM

CHIEF JUSTICE & PRESIDENT                               JUSTICE OF THE SUPREME COURT

OF THE SUPREME COURT

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S. C.  WANJALA                                                               NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT                       JUSTICE OF THE SUPREME COURT

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I. LENAOLA

JUSTICE OF THE SUPREME COURT

I certify that this is a truecopy of the original.

REGISTRAR

SUPREME COURT OF KENYA