Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge (Interested Party) [2022] KESC 53 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 8 others; Orenge (Interested Party) (Presidential Election Petition E005 of 2022) [2022] KESC 53 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 53 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition E005 of 2022

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

August 29, 2022

Between

Raila 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

Abdi Yakub Guliye

4th Respondent

Juliana Whonge Cherera

5th Respondent

Justus Nyangaya

6th Respondent

Francis Wanderi

7th Respondent

Irene Massit

8th Respondent

William Samoei Ruto

9th Respondent

and

Juliues Orenge

Interested Party

No person may be admitted as an interested party in the presidential election petition.

An application by any person to join the presidential election petition as an interested party shall not be allowed.

Reported by John Ribia

Electoral Law- presidential election petition – parties – joinder application – application to be joined as an interested party – category of persons that may be enjoined as an interested party - whether a natural person could be admitted as an interested party in the presidential election petition - Supreme Court Rules, 2020, rule 19; Supreme Court (Presidential Election Petition) Rules, 2017, rules 17A(1) and (2)

Brief facts The applicant sought to be enjoined as an interested party in the presidential election petition on grounds that he intended to demonstrate electoral fraud arising from voters register on a sufficient scale. He contended that the voter fraud had the effect of acoup d’etat, protest or corruption of democracy.

Issues Whether a person could be admitted as an interested party in a presidential election petition.

Relevant provisions of the Law The Supreme Court (Presidential Election Petition) Rules 2017; Rule 17A(4)17A. Third party applications(1) A person seeking to be admitted as a friend of the Court may apply for admission at the close of pleadings.(2) An application made under sub-rule (1) shall include a friend of the court brief setting out the person's expertise and reasons for requesting the admission.(3) The Court may deliver a ruling by way of electronic communication to the applicant.(4) An application by any person to join the petition as an interested party shall not be allowed

Held

Rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017 provided that an application by any person as an interested party shall not be allowed in a presidential election petition.

Application dismissed.

Orders No order as to costs.

Citations CasesNone referred toStatutesKenyaSupreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg) rule 17A(4) - (Interpreted)AdvocatesNone mentioned

Ruling

1. Upon perusing the notice of motion application by the applicant, Julius Orenge, dated August 26, 2022 and filed on the even date, seeking to be enjoined in these proceedings as an interested party; and

2. Upon reading the supporting affidavit of Julius Orenge, a Kenyan citizen and a registered voter, sworn on August 26, 2022; and

3. Upon considering the grounds adduced by the applicant in support of the orders to be enjoined as an interested party, wherein he postulates that he shall demonstrate that in a National Election, successful electoral fraud arising from voters register on a sufficient scale can have the effect of a coup d’etat, protest or corruption of democracy; and

4. Considering that the relevant law in that regard to interested parties is rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election Petition, we find as follows:

Orders:a.The application dated August 26, 2022 and filed on the same date seeking joinder of Julius Orenge as interested party to this petition is hereby dismissed.b.There shall be no orders as to costs.

5. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST 2022. .......................................M.K KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT.......................................P.M MWILUDEPUTY CHIEF JUSTICE & DEPUTY PRESIDENT OF THE SUPREME COURT.......................................M.K IBRAHIMJUSTICE OF THE SUPREME COURT.......................................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 originalREGISTRARSUPREME COURT OF KENYA