Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae) [2022] KESC 44 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 44 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 44 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition E005 of 2022

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

August 29, 2022

Between

Raila Amolo Odinga

1st Petitioner

Martha Wangari Karua

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Wanyonyi Wafula Chebukati

2nd Respondent

Boya Molu

3rd Respondent

Prof Abdi Yakub Guliye

4th Respondent

Juliana Whonge Cherera

5th Respondent

Justus Nyang'aya

6th Respondent

Irene Massit

7th Respondent

William Samoei Ruto

8th Respondent

and

John Walubengo

Amicus Curiae

Martin Mirero

Amicus Curiae

Dr Joseph Sevilla

Amicus Curiae

(Being an Application by John Walubengo, Dr. Joseph Sevilla and Martin Mirero for Leave to be admitted as Amici Curiae pursuant to Rule 17A (1) and(2)of the Supreme Court (Presidential Election Petition) Rules, 2017 and Rule 19 of the Supreme Court Rules, 2020)

Amicus curiae admitted in the Presidential Election Petition 2022.

Reported by John Ribia

Electoral Law– presidential election petition – joinder application – application to be enjoined as amicus curiae - circumstances when could a party be admitted as amicus – what principles should a court consider in an application to be enjoined as an amicus curiae – Supreme Court (Presidential Election Petition) Rules 2017, rule 17A(1) and (2); Supreme Court Rules,  2020 rule 19(1)

Brief facts John Walubengo, Dr. Joseph Sevilla and Martin Mirero, sought leave to be joined as amici curiae in the Presidential Election Petition No. E005 of 2022.

Issues Whether the applicants met the standard set in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others[2015] eKLR and Francis Muruatetu & another v Republic & 5 others [2016] eKLR for admission as amici curiae.

Held

The contents of the said amicibrief satisfied the test established by the instant court inTrusted Society of Human Rights Alliance v Mumo Matemo & 5 others[2015] eKLR and Francis Muruatetu & another v Republic & 5 others [2016] eKLRfor admission of amici curiae; and the requirements of rule 17 A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.

Application allowed.

Orders Applicants admitted as amici curiae. The amiciwill not make oral submissions and shall rely solely on their written brief.

Citations CasesKenya Muruatetu, Francis & another v Republic & 5 others Petition No 15 & 16 of 2015; [2016] eKLR (Consolidated) - (Followed)

Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others Petition No 12 of 2013; [2015] eKLR - (Followed)

StatutesKenya Constitution of Kenya articles 10, 22, 28, 38, 140, 159, 163  - (Interpreted)

Supreme Court (General) Practice Directions Rules, 2020 (cap 9B Sub Leg) rule 19 - (Interpreted)

Supreme Court (Presidential Election Petition) Rules, 2017 (cap 9B) rule 17A - (Interpreted)

Supreme Court Act, 2011 (cap 9B) sections 3A, 12 - (Interpreted)

AdvocatesNone mentioned

Ruling

1. This application is dated the August 28, 2022 and filed on even date by John Walubengo, Dr Joseph Sevilla and Martin Mirero, seeking leave to be joined as amici curiae in the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of John Walubengo, sworn on the August 28, 2022 and filed on the August 28, 2022. It is brought pursuant to articles 10, 22, 38, 140, 159 and 163 of the Constitution; sections 3A and 12 of the Supreme Court Act, 2011; and rule 17A of the Supreme Court (Presidential Election Petition) Rules, 2017. The applicants have annexed an Amici Brief to their application for the court’s consideration.

2. We have considered the application, affidavit in support thereof, and the amici Brief thereto. On the basis of the contents of the said Brief, we are satisfied that the application satisfies the test established by this court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others, SC Petition No 12 of 2013; [2015] eKLRandFrancis Muruatetu & another v Republic and 5 others, SCPetition No 15 & 16 of 2015 (Consolidated): [2016] eKLR for admission of Amici Curiae; and the requirements of rule 17 A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of theSupreme Court Rules, 2020.

3. Consequently, the applicants are hereby admitted as amici curiae in Petition No E005 of 2022. The amici will not make oral submissions and shall rely solely on their written Brief.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST, 2022. M. K. KOOME........................................CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURTP. M. MWILU........................................DEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURTM. K. IBRAHIM........................................JUSTICE OF THE SUPREME COURTS. C. WANJALA........................................JUSTICE OF THE SUPREME COURTNJOKI NDUNGU........................................JUSTICE OF THE SUPREME COURTI. LENAOLA........................................JUSTICE OF THE SUPREME COURTW. OUKO........................................JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA