Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae) [2022] KESC 50 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Law Society of Kenya (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 50 (KLR) (Election Petitions) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 50 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Election Petitions

Presidential Election Petition E005 of 2022

PM Mwilu, DCJ & V-P, MK Koome, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

August 29, 2022

(Being an Application by the Law Society of Kenya for Leave to be admitted as Amicus 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)

Between

Raila Amolo Odinga

1st Petitioner

Martha Wangari Karua

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Boya Molu

2nd Respondent

Wanyonyi Wafula Chebukati

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

Law Society of Kenya

Amicus Curiae

and

Law Society of Kenya

Amicus Curiae

The Law Society of Kenya joined as amicus curiae in the Presidential Election Petition

The Law Society of Kenya (LSK) sought to be joined as an amicus curiae in the presidential election petition. The court allowed the application and held that LSK would not make oral submissions but it would rely solely on its written brief.

Reported by Kakai Toili

Electoral Law– presidential election petition- parties - application to be joined as amicus curiae - requirements - what were the requirements to be met for a party to join a suit as an amicus curiae in a presidential election petition - Supreme Court Rules, 2020, rule 19; Supreme Court (Presidential Election Petition) Rules, 2017, rules 17A(1) and (2).

Brief facts The instant application was filed by the Law Society of Kenya, seeking leave to be joined as amicus curiaein the Presidential Election Petition No. E005 of 2022. The application was brought 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.

Issues What were the requirements to be met for a party to join a suit as an amicus curiae in a presidential election petition?

Held

On the basis of the contents of the amicus brief, the application satisfied the test established by the court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v Republic and 5 Others[2016] eKLR for admission of amici curiae; and the requirements of rule 17A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.

Application allowed,

Orders

The applicant was admitted as an amicus curiae in Petition No. E005 of 2022.

The amicus would not make oral submissions and would rely solely on its written brief.

Citations CasesKenya Muruatetu, Francis Karioki & another v Republic & 5 others Petitions 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 Supreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg)  rule 17A(1)(2) - (Interpreted)

Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg)  rule 19- (Interpreted)

AdvocatesNone mentioned

Ruling

1. This application is dated the August 27, 2022 and filed on the August 28, 2022 by the Law Society of Kenya, seeking leave to be joined as amicus curiaein the Presidential Election Petition No E005 of 2022. It is supported by the affidavit of Florence Wairimu Muturi, sworn on the August 27, 2022 and filed on the August 28, 2022. It is brought 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). The applicant has annexed an amicus Brief to its application for the court’s consideration.

2. We have considered the application, affidavit in support thereof, and the amicus 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] eKLR and Francis Muruatetu & another v Republic & 5 others, SC Petition No 15 &16 of 2015 (Consolidated): [2016] eKLR for admission of amici curiae; and the requirements of rule 17A(1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.

3. Consequently, the applicant is hereby admitted as an amicus curiae in Petition No E005 of 2022. The amicus will not make oral submissions and shall rely solely on its written brief.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST, 2022. .................................................M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT.................................................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. OUKO......................................................................JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR, SUPREME COURT OF KENYA