Odinga & another v Independent Electoral and Boundaries Commission & 9 others [2022] KESC 45 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 45 (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

Prof 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

Milton Nyakundi Oriku

10th Respondent

Applications to be admitted as an interested party in a presidential election petition are inadmissible.

The court elaborated on whether it was possible for any person to join a presidential election petition as interested party. It held that such a joinder was not possible.

Reported by John Ribia

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

Brief facts The applicant sought to be enjoined as an interested party in the presidential election petition on grounds that that he had an inherent interest in the outcome of the petition as it raised fundamental issues which were integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the Constitution; and that he had substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which were central to petition. No party filed a response to the petition.

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 could not be allowed in a presidential election petition.

Application dismissed. No order as to costs.

Citations CasesNone referred toStatutesKenya Constitution of Kenya, 2010 articles 10, 38, 73, 81, 86, 140 - (Interpreted)

Supreme Court (Presidential 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 Milton Nyakundi Oriku, the applicant, dated August 23, 2022 and filed on August 28, 2022, seeking to be enjoined in these proceedings as an interested party; and

2. Upon reading the supporting affidavit sworn on August 23, 2022, of the said Milton Nyakundi Oriku, a Kenyan citizen, who is a registered voter and works as a journalist; and

3. Upon considering the said application together with his written submissions dated August 23, 2022 and filed on August 28, 2022, wherein the applicant argues that he has an inherent interest in the outcome of the petition as it raises fundamental issues which are integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the Constitution; and that he has substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which are central to Petition; and

4. Noting that no party has filed a response to the application; and

5. We note that the relevant law in this regard is rule 17A (4) of the Supreme Court (Presidential Petition) Rules 2017, which provides that an application by any person as an interested party shall not be allowed in a presidential election petition.

6. Havingcarefully considered the application, responses and submissions by the respective parties herein, we find no merit in the application. We accordingly, dismiss it.

Orders:a.The application dated August 23, 2022 and filed on August 28, 2022 seeking joinder of Milton Nyakundi Oriku as interested party to this petition is hereby dismissed.b.There shall be no orders as to costs.

7. 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 JUSTICE OF THE SUPREME COURT...........................M.K IBRAHIMJUSTICE OF THE SUPREME COURT............................C. WANJALAJUSTICE OF THE SUPREME.................................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