Case Summaries

Election Law

PRESIDENTIAL PETITIONS CONSOLIDATED FOR EXPEDITIOUS DISPOSAL

Raila Odinga v Independent Electoral & Boundaries Commission & 3 Others The Petition Supreme Nos. 5, Court 3 & of 4 Kenya of 2013 at Nairobi (Consolidated)

W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu March Reported by Lynette A. Jakakimba The three presidential election petitions No. 3, 4 and 5 of 2013 were filed before the Supreme Court of Kenya challenging the validity of the March 4th 2013 Presidential Election. The Supreme Court subsequently made a ruling on the consolidation of the Presidential Petitions. However, the court also took into consideration that Petition No. 3 of 2013 further dealt with the issue of validity of the inclusion of the rejected votes to the final tally of Presidential votes. 25, SCJJ. 2013

Issue 1. Whether Presidential Petitions could have been consolidated in so far as the petitions were in respect of the same respondents and with regard to the validity of the presidential election. Election Law-presidential election petitions consolidation of presidential petitions with similar issues petitions challenging the validity of the 2013 presidential elections - Whether presidential election petitions could be consolidated in so far as the petitions were in respect of the same respondents and with regard to the validity of the presidential election. Read More...
Election Law

COURT ORDERS SCRUTINY OF PRESIDENTIAL VOTES IN CONTESTED POLLING STATIONS

Supreme Court of Kenya at Nairobi Petitions No 3, 4 and 5 of 2013 W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 25, 2013 Reported by B.A. Ikamari The Supreme Court ordered a scrutiny of the following forms, relating to the presidential election of 2013: -

1. All Form 34 which were used by the IEBC in tallying the presidential votes from each of the 33400 polling stations in the country including the form 34 used by IEBC in tallying the Diaspora votes. 2. All Form 36 which were used by IEBC in aggregating the tallies of presidential votes

from all Form 34s. Read More...

Election Law

SUBSTANCE AND TIME CONSTRAINTS IN FILING FURTHER EVIDENCE IN A PRESIDENTIAL ELECTION PETITION
Raila Odinga & 5 Others v Independent Electoral Boundaries Commission & 3 Others Supreme Court of Kenya at Nairobi Petition No. 5, 3 & 4 of 2013 W. M. Mutunga, CJ and P. K. Tunoi, M. K. Ibrahim, J. B. Ojwang, S.C. Wanjala & N. S. Njoki SCJJ. March 26, 2013 Reported by Emma Kinya Mwobobia The petitioner had filed a petition to which the respondents in the matter responded to by filing their respective replying affidavits. Subsequently, the petitioner filed what he referred to as the petitioners affidavit in reply and s erved the respondents with the exception of a few who complained of lack of service. Several parties in the petition took issue with the filing of the subsequent affidavit and raised objections to it while others had no objections and even supported the reasons for filing of the further affidavit by the petitioner.

Issues 1. Whether the affidavit in reply that the petitioner had filed was admissible in court in a presidential election petition which had strict time constraints 2. Whether the nature, context and extent of the new evidence in the affidavit that was intended to be produced by the petitioner in the presidential election petition could have been prejudicial to the respondents and therefore amounted to a miscarriage of justice. 3. Whether the electoral laws had provided for a procedure for filing further affidavits or additional evidence which could have been available to the petitioner. Election Law - presidential election petition - procedure for filing of documents in a presidential election petition - affidavit - affidavit evidence time prescribed for determination of a presidential election petition where the petitioner had filed a further affidavit after the respondents had filed their replying affidavits - limitation of time due to the strict time lines in determination of presidential election petitions admissibility of a further affidavit or additional evidence in a presidential election petition filed without leave of court context, nature and extent of the affidavit - where the affidavit was lengthy and introduced new issues - whether such an affidavit would be admissible in the circumstances whether the further affidavit in an presidential election petition would have been prejudicial to the respondents and therefore have occasioned a miscarriage of justice Supreme Court Act section 31 (d), Supreme Court (Presidential Election Petition) Rules, 2013 Rule 9 Read More...
Election Law

ENTITLEMENT TO BE ENJOINED AS A PARTY TO A PRESIDENTIAL

ELECTION PETITION
Isaac Aluoch Polo Aluochier v Independent Electoral and Boundaries Commission & 19 others Supreme Court of Kenya Civil Application No. 2 of 2013 W. M. Mutunga, CJ and P.K. Tunoi, M. K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 26, 2013 Reported by Emma Kinya Mwobobia The applicant made an application to be enjoined in the presidential election petition proceedings which had been lodged and consolidated with various other petitions with regard to the presidential election. However, none of the advocates having conduct of the presidential election petition supported the applicants case to be enjoined as a party to the petition. Counsel for the respondents submitted that the application for joinder could only have served the purpose of delaying the dutiful prosecution of the petition and further, that the applicant had not complied with the rules regulating the lodging of a presidential election petition and his issues were by no means related to the petitioners issue in the petition he had applied to be enjoined as a party. It was therefore submitted that the applicants motion was prejudicial to the petitioners in the said petition and there would be no basis for allowing it.

Issue 1. Whether the applicant was entitled to be enjoined as a co-petitioner in another existing presidential election petition under the electoral laws Election Law-presidential election petition joinder of parties in a presidential election petition application to be enjoined as a party in an existing presidential election petition entitlement for joinder in the petition provision under the Supreme Court (Presidential Election Petition) Rules - court consideration of the applicants entitlement for joinder in the petition whether the applicant was entitled to be enjoined as a party in the presidential election petition in the circumstances Supreme Court (Presidential Election Petition) Rules, 2013 rule 17
Rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2013 Provides:

(2) any person who was entitled to be a pet itioner in the petition may apply and be joined as a co-petitioner at any time before the conclusion of the hearing of the petition. Read More...

Election Law

PROCEDURE IN PRESIDENTIAL ELECTION PETITION STRICTLY TIMEBOUND

Raila Odinga v Independent Elections and Boundaries Commission & 3 others Supreme Court of Kenya at Nairobi Petition No. 5 of 2013 W.M. Mutunga, CJ and P.K Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S.

Ndungu, SCJJ. March 26, 2013 Reported by Teddy Musiga

Facts:
Subsequent to filing of the presidential petition challenging the declaration of the results of the presidential election, the petitioner filed an application seeking orders for the court to direct the respondents to produce further documents in court within twenty four hours of the court making the orders.

Issues 1. Whether the Supreme Court was time bound in the determination of the election petition 2. Whether the filing, serving and production of further documents subsequent to filing the petition could interfere with the courts time lines in the determination of the election petition. 3. Whether a pre-trial conference could have been used as a forum to make applications for production of further documents. Election Law-presidential election petition disputes arising out of presidential election procedure in filing, service and production of documents timelines in production of documents production of further documents subsequent to filing petition Constitution of Kenya, 2010 Article 140. Read More...
Civil Practice and Procedure

PROCEDURE FOR TAKING OUT A NOTICE TO PRODUCE DOCUMENT IN A PRESIDENTIAL ELECTION PETITION
Gladwell Wathoni Otieno & another v Ahmed Issack Hassan & 3 others Petition No 4 of 2013 Supreme Court of Kenya at Nairobi W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 27, 2013 Reported by Phoebe Ida Ayaya

Issues 1. Whether an applicant can take out a Notice to Producedocument in a presidential election petition under the Civil Procedure Rules. 2. Whether the application was time barred. 3. Definition of Notice to Produce. Civil Practice and Procedure-Notice to produce Procedure for taking out of a notice to produce in a presidential election petition under the Civil Procedure Act timelines required when filing such an application whether the application was time barred definition of notice to produce pursuant to Sections 3(1) and (2), 4(1) and 2, 5 and 10 of the Elections Act, Regulations 6, 8, 12 (2), (3) and (4), 31, 32 and 33 of the Elections (Registration of Voters) Regulations, 2012 and Regulations 59 (4), 61 (4), 69, 73 and 83 of the Election (General) Regulations, 2012). Read More...

Election Petition

CONSIDERATIONS FOR ADMISSION AS AMICUS CURIAE IN A PRESIDENTIAL ELECTION PETITION

Supreme Court of Kenya Petition No.s 3, 4 and 5 of 2013 W. M. Mutunga, CJ and P.K Tunoi, M. K. Ibrahim, J. B. Ojwang, S.C. Wanjala & N. S. Ndungu SCJJ. Reported by Emma Kinya Mwobobia Two applications were made before the Supreme Court seeking for the admission to the status of amicus curiae in the proceedings of the presidential election petition that was before the court. The first was by the Attorney General while the second was by the Law Society of Kenya (LSK). The Attorney-General submitted that the importance of a presidential election based on the terms of the Constitution of Kenya, 2010 justified the participation of his office as the protector of the public interest in the capacity of amicus curiae and further, that his office had no partisan interest in the matter and would in any case limit itself to such role as the court would approve. LSKs submission was to the effect that since the Law Society of Kenya Act had mandated LSK to assist the Government of Kenya in matters related to law making, the presidential election petition proceedings was a typical case in which LSK deserved to be admitted to the status of amicus curiae.

Issues 1. Whether the Attorney-General was entitled to be admitted as amicus curiae in the presidential election petition proceedings considering his position as a state officer 2. Whether the Law Society of Kenya (LSK) could have been admitted in the presidential election petition proceedings as amicus curiae where their role in the petition was considered to be partisan Election Petition - presidential election petition amicus curiae application by the Attorney-General and the Law Society of Kenya (LSK) to be admitted as amicus curiae in the proceedings leading to the determination of the presidential election petition conditions court considered in determining the suitability of the application by the parties to be admitted as amicus curiae whether the application was valid whether the role of the parties in the government affected their suitability to be admitted as amicus curiae in the presidential election petition Read More...
Election Law

BIAS AND PARTISANSHIP A BAR TO BE ADMITTED AS AN AMICUS CURIAE IN A PRESIDENTIAL ELECTION PETITION
Supreme Court of Kenya Petitions No's 3, 4 and 5 of 2013 W.M. Mutunga, CJ. And P.K. Tunoi, M.K. Ibrahim, J.B. Jwang, S.C. Wanjala & N.S. Ndungu SCJJ. Reported by Emma Kinya Mwobobia

Katiba Institute (applicant) made an application seeking admission to the status of amicus curiae in the presidential election petition proceedings at the Supreme Court. The applicant submitted that the Institution had been admitted to the status of amicus curiae in the past by the courts and further that the Institute carried out research on matters of interpreting the Constitution and had great and singular expertise in constitutional law. The application was opposed on grounds that interalia, a party seeking to be enjoined as amicus curiae must have been non-partisan and neutral and further that a report which was co-written by the Katiba Institute titled Implications of Kenyatta/Ruto Presidencywas submitted to court which implied the deep seated resentment the Institute held towards the President-Elect and his Deputy.

Issue 1. Whether the applicant could have been admitted to the status of amicus curiae in the presidential election petition despite allegations of previous bias and partisanship Election Law-presidential election petition parties to a presidential election petition amicus curiae court consideration in admitting a party to the status of an amicus curiae requirement for the applicant to be non-partisan in the petition allegations that the applicant had previously released a biased report on the president-elect whether the application had merit in the circumstances Read More...
Held:

1. While it was true that the applicant had previously enjoyed the status of amicus curiae before the court, the adversarial nature of the presidential election petition was different from that of an advisory opinion hearing by the court to which the Institute had previously enjoyed audience. 2. Where in adversarial proceedings parties had alleged a proposed applicant for amicus curiae was biased or hostile to one or more of the parties or where the applicant through previous conduct appeared to be partisan on an issue before the court, the court had to consider such an objection seriously. 3. The court, though unable to ascertain the veracity of every claim that was made in the application, was convinced of the perception of bias and partisanship with regard to the applicant in the presidential election petition.
Application disallowed