Considerations to be made when Parties to a Petition are entitled to Scrutiny and Access to Electoral Systems

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others

Presidential Petition No. 1 Of 2017

The Supreme Court of Kenya at Nairobi

(Maraga, CJ & P, Mwilu, DCJ & V-P, Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ)

August 28, 2017

Reported by Robai Nasike and Priscilla Mtawe

Election law- election petition-scrutiny and recount of votes–where the petitioner applied for scrutiny of votes of the presidential results- whether the Supreme Court could order scrutiny of votes and other election materials- considerations to be made when parties to a petition are entitled to scrutiny and access to electoral Systems - Elections Act 2011 sections 80 (3) and 82; Elections (Parliamentary and County Elections) Petition Rules 2013 rules 14 and 33.

Election Law – scrutiny of votes – orders for scrutiny of votes on application by any party to the petition – Petitioners’ allegation of election malpractices and irregularities – whether the 1^st Respondent had conducted the election in an impartial, neutral, efficient, accurate and accountable manner- Section 82(1) of the Elections Act (Act. No 24 of 2011) and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013

Constitutional Law – fundamental rights and freedoms – right to access to information – duty of public entities to provide information to citizens - whether a public entity had a constitutional obligation under the Constitution to provide information to citizens – whether the Petitioners were entitled to access information relating to the hardware and software used in the conduct of the 2017 Presidential Election –- Constitution of Kenya, 2010, article 10(2), article 35

Brief facts

The Petitioners’ contented that the Elections Technology System was penetrated and deliberately compromised and used in a manner not intended by law so as to interfere with and affect the result of the 2017 Presidential Election.

In that regard, they asserted that the IEBC electoral system was designed in a manner to ensure that text results could not be transmitted without images on the prescribed form embodying the totality of election results in every polling station.  The end result was that the evidence adduced, points to indicators of interference with the systems, fraud in the filing of Forms 34A, 34B and 34C and the systems were not secured as required by law. They further claimed that the said system was breached and deliberately compromised and used in a manner not intended in law.

They therefore sought access and scrutiny of the IEBC System and logs and argued that the Presidential Election Results were made in absolute breach of/and non-compliance with the mandatory provisions of Sections 39(1C) and 44 of the Elections Act as well as the Elections (Technology) Regulations, 2017.

Issues

         i.   Whether an election Court could, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out.

       ii.   What considerations would be made when parties to a petition were entitled to scrutiny and access to electoral systems?

      iii.   To what extent were the Petitioners entitled to access information relating to the hardware and software used in the conduct of the 2017 Presidential Election and particularly in transmission of results?

    iv.   Whether the Petitioners were entitled to leave to file further affidavits after being granted access to the electoral system.

Relevant provisions of the law

Elections Act

Section 82

 “Scrutiny of votes.”

1.      An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.

2.      Where the votes at the trial of an election petition are scrutinized, only the following votes shall be struck off—

 (a) the vote of a person whose name was not on the register or list of voters assigned to the polling station at which the vote was recorded or who had not been authorised to vote at that station;

 (b) the vote of a person whose vote was procured by bribery, treating or undue influence;

 (c) the vote of a person who committed or procured the commission of personation at the election;

 (d) the vote of a person proved to have voted in more than one constituency;

 (e) the vote of a person, who by reason of conviction for an election offence or by reason of the report of the election court, was disqualified from voting at the election; or

 (f) the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were notorious.

 The vote of a voter shall not, except in the case specified in subsection (1)(e), be struck off under subsection (1) by reason only of the voter not having been or not being qualified to have the voter’s name entered on the register of voters.”

Elections (Parliamentary and County Elections) Petition Rules, 2013.

Rule 33

 “Scrutiny of votes.

(1) The parties to the proceedings may, at any stage, apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

(2) Upon an application under sub-rule (1), the court may, if it is satisfied that there is sufficient reason, order for a scrutiny or recount of the votes.

(3) The scrutiny or recount of ballots shall be carried out under the direct supervision of the Registrar and shall be subject to directions as the court may give.

(4) Scrutiny shall be confined to the polling stations in which the results are disputed and shall be limited to the examination of—

(a) the written statements made by the presiding officers under the provisions of the Act;

(b) the copy of the register used during the elections;

(c) the copies of the results of each polling station in which the results of the election are in dispute;

(d)  the written complaints of the candidates and their representatives;

(e) the packets of spoilt papers;

(f)   the marked copy register;

(g) the packets of counterfoils of used ballot papers;

(h) the packets of counted ballot papers;

(i)   the packets of rejected ballot papers; and

(j)   the statements showing the number of rejected ballot papers.”

Access to Information Act, 2016 (No. 31 of 2016)

Section 4

 (1) Subject to this Act and any other written law, every citizen has the right of access to information held by—

      (a) the State; and

 (b) another person and where that information is required for the exercise or protection of any right or fundamental freedom.

 (2) Subject to this Act, every citizen's right to access information is not affected by—

      (a) any reason the person gives for seeking access; or

 (b) the public entity's belief as to what are the person's reasons for seeking access.

 (3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

 (4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.

 (5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.”

Independent Elections and Boundaries Commission Act, 2011 (No. 9 of 2011)

Section 27

 (1) The Commission shall publish and publicize all important information within its mandate affecting the nation.

 (2) A request for information in the public interest by a citizen

 (a) Shall be addressed to the Secretary or such other person as the Commission may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Commission incurs an expense in providing the information; and

 (b) May be subject to confidentiality requirements of the Commission.

 (3) Subject to Article 35 of the Constitution, the Commission may decline to give information to an applicant where;

 (a) The request is unreasonable in the circumstances;

 (b) The information requested is at deliberative stage by the Commission;

 (c) Failure or payment of the prescribed fee; or

 (d) The applicant fails to satisfy any confidentiality requirements by the Commission.

 (4)The right of access to information under Article 35 of the Constitution shall be limited to the nature and extent specified under this section.

Held

1.      An election Court could, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election Court would determine in accordance to Section 82 of Elections Act.

2.      There was no reason to deny the prayers for scrutiny of all the documents and equipment; especially when the 1^st Respondent had assured the Court that any report on the access to and scrutiny of the Forms 34A and 34B would be filed within 48 hours of any such order by the Court.

3.      On the technological aspects of the election, the criteria for considering that aspect would be the limited time the Court had to hear and determine the petition challenging the Presidential Election and the need to ensure that only those orders that were practicable, reasonable and helpful in reaching a just and fair determination of the petition were granted.

4.      With regard to the direct and unfettered access to all persons and the electoral technological system; some of the actions for which access was sought had the potential of compromising the integrity and security of the 1st Respondent’s electoral technological system and of individual persons. If granted, it was likely that the future use of the system would be compromised. Therefore, it was important to ensure that there was absolute confidentiality of passwords and usernames, locations of servers, identity of password holders, IP addresses and software running applications inter alia.

5.      The access and supply of a large number of software and hardware could occasion possible security and software integrity issues that could militate against a blanket grant of all the orders sought therein. Some of the orders sought also went outside the relevance and purview of the Petitioners’ case. Consequently, any order granted with respect to that prayer had to be practical, timeous and relevant to the issues in contest. Hence, orders of access and supply of information that met the above criteria would be granted at the end of the ruling. The said information would also assist the court reach a fair decision in the petition and without jeopardizing or compromising any party’s stated position in it.

6.      Prayers for the direct, unfettered access to relevant persons and systems at Safran in order for the forensic information technology experts to fully understand the KIEMS system (Kenya Integrated Election Management System) was impractical and difficult to grant because Safran Identity and Security (a French multinational company, specialized in security and identity solutions) was a software company based in France and was not party to the proceedings. To demand that “persons and systems” related to it should be accessed by the Petitioners was impractical and would unnecessarily delay the hearing and determination of the petition.

7.      The prayer for filing of further affidavits arising from the information requested being obtained, noting the time left for hearing and determination of the petition (less than 4 days), could not be allowed as such an order would only delay the proceedings and cause prejudice if the Respondents were unable to respond to the issues raised therein. 

8.      The 1st Respondent was under an obligation to supply to the Petitioner and 3rd Respondent for their scrutiny, scanned and transmitted copies of Forms 34A and 34B.

Application partly allowed.

        i.   Petitioners as well as the 3^rd Respondent acquired a read only access, that included copying (if necessary) of –

a)    Information relating to the number of servers in the exclusive possession of the 1^st Respondent.

b)    Firewalls without disclosure of the software version.

c)    Operating systems without releasing the software version.

d)    Password policy.

e)    Password matrix.

f)       System user types and levels of access.

g)    The IEBC Election Technology System Redundancy Plan comprising of its business continuity plan and disaster recovery plan.

h)    Certified copies of certificates of Penetration Tests conducted on the IEBC Election Technology System prior to and during the 2017 General and Presidential Election including:

                                                                                                                                                  i.      Certified copies of all reports prepared pursuant to Regulation 10 of the Elections (Technology) Regulations , 2017; and

                                                                                                                                                ii.      Certified copies of certificate(s) by a professional(s) prepared pursuant to Regulation 10(2) of the Elections (Technology) Regulations, 2017

                                                                                                  i.      Specific GPRS location of each KIEMS Kit used during the Presidential Election for the period between and including 5^th August, 2017 and 11^th August, 2017.

j)       (j) Certified list of all KIEMS Kits procured but not used and/or deployed during the Election;

k)     (k) Polling station allocation for each KIEMS Kit used during the Presidential Election;

l)        (l) Technical Partnership Agreement(s) for the IEBC Election Technology System including but not limited to:

                                                                                                        i.            List of the technical partners;

                                                                                                      ii.            Kind of access they had; and

                                                                                                    iii.            List of APIs for exchange of data with the partners

m)               Log in trail of users and equipment into the IEBC Servers.

n)                Log in trails of users and equipment into the KIEMS Database Management Systems.

o)                 Administrative access log into the IEBC public portal

p)                The information listed in (m), (n) and (o) above shall be issued in soft copy to the Petitioners and 3^rd Respondent.

q)                Certified photocopies of the original Forms 34A’s 34B’s and 34C’s prepared at and obtained from the polling stations by Presiding Officers and used to generate the final tally of the Presidential election, and pursuant to such production leave be granted for the use of an aid or reading device to assist in distinguishing the fake forms from the genuine ones.

r) Forms 34A 34B and 34 C from all 40,800 polling stations.

s)Scanned and transmitted copies of all Forms 34A and 34B.

                   ii.            The Registrar of the Supreme Caurt was to be assisted by a number of judicial officers and staff as she demermined and supervise access to the certified copies of original Forms 34A and Forms 34B by the Petitioners and 3rd Respondents at such a venue that she determined in consultation with the parties.  A report on that exercise and related issues was to be filed by the Registrar August 29, 2017 at 5:00p.m. The parties were at liberty to submit on the report at the end of the hearing.

                  iii.            In the exercise set out order (i)(a –p)above, priority was to be given to the;

a)     292 Polling stations as deponed to at paragraph 12 of Norman Magaya Affidavit sworn on 23^rd of August 2017;

b)     688 polling stations as deponed to at paragraph 15 of Omar Yusuf Mohammed affidavit sworn on 24^th August 2017;

c)     14,078 polling stations as deponed at paragraph 70 of Dr. Nyangasi Oduwo’s affidavit dated 18^th August 2017

                iv.            An ICT officer designated by the Supreme Court from among its ICT staff and two independent IT experts appointed by the court was to supervise access to the technology at such a venue as they could determine in consultation with the parties. A report on that exercise and related issues was to be filed by the ICT officer and experts by 5:00 p.m. onAugust 29, 2017. The parties were at liberty to submit on the report at the end of the hearing.

                  v.            The parties to the petition were entitled to have a maximum of two agents/experts in each of the exercises above. The agents were at all times to comply with the directions of the Registrar and the ICT officer to ensure expeditious conclusion of the above exercise.

                vi.            No order of costs.

Motion by the IEBC chairperson to expunge documents filed and served out of time dismissed. 

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others

Presidential Petition No. 1 of 2017

Supreme Court of Kenya

D K Maraga, CJ & P, P M Mwilu, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala, N S Ndungu & I Lenaola,  SCJJ

August 27, 2017

Reported by Amazon Koech & Beryl Ikamari

Electoral Law-Presidential election petition-service of the petition and close of pleadings-admission of documents filed and served out of time-whether the Court could retain in the Court record documents filed and/or served out of time by the Petitioner in a Presidential election petition- Supreme Court (Presidential Election Petition) Rules 2017, rules 10 & 12.

Brief facts

A Notice of Motion application dated August 25, 2017 sought to strike out and/or expunge from the Court record documents which were not served by the Petitioner upon counsel for the 3^rd Respondent. It also sought to expunge from the record documents that were filed out of time.

Issue

1. Whether the Court could retain in the Court record documents which were filed and served out of time.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

  Held

1. The application was solely based on the ground that the documents and annexures in question were filed and/or served out of time contrary to rule 10 as read together with rule 12 of the Supreme Court (Presidential Election Petition) Rules 2017.
2. The documents and annexures in question were not only in support of, but inextricably linked to the petition filed on August 18, 2017. They had already been referred to in Dr. Nyangwasi’s affidavit in support of the petition which was filed and served in time together with the petition.
3. The documents and annexures in question were filed on August 20, 2017, long before the commencement of the formal hearing of the petition.
4. The Applicant did not claim or demonstrate that the filing of the documents and annexures in question would introduce new evidence, or change the character of the petition.
5. The retention of the documents and annexures in question on the Court record would not jeopardize or seriously undermine the ability of the Court to hear and determine the petition within the constitutional time limit of 14 days.
6. The Rules of the Court had to be adhered to by all litigants at all times to ensure the orderly and expeditious conduct and disposal of disputes that came before it. However, in the interests of justice, the Court’s inherent jurisdiction would be invoked in favor of retaining the documents and annexures in question on the Court record.

Notice of Motion dated August 25, 2017 dismissed.

Order: -

Documents and annexures in question were to be served upon the Applicant not later than 9.am on Monday, August 28, 2017.

Considerations for one to be Enjoined as an interested Party in a Presidential Election Petition

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Benjamin Barasa Wafula [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya

D Maraga CJ,P Mwilu, DCJ ; M Ibrahim, J B Ojwang, S Wanjala, N Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Ribia John and Njeri Mweha

Election Law – Presidential Election – application to be enjoined as an interested party – application to be enjoined as an interested party in the presidential election petition – what were the considerations for one to be enjoined as an interested party in a presidential election petition - what were the considerations for one to be admitted as an interested party in Supreme Court proceedings – Supreme Court Rules, 2012 rule 25.

Civil Practice and Procedure – application to be enjoined as an interested party – application to be enjoined as an interested party in the presidential election petition – what were the considerations for one to be enjoined as an interested party in a presidential election petition - what were the considerations for one to be admitted as an interested party in Supreme Court proceedings – Supreme Court Rules, 2012 rule 25.

Civil Practice and Procedure – application to be enjoined as an interested party – application to be enjoined as an interested party in the presidential election petition – where the application introduced new parties and excluded other parties – where the application introduced new facts and issues that were not before the Court - whether an application to be enjoined as an interested party that introduced new parties whilst excluding other parties and that introduced new facts and issues that were not before the Court was valid.

Brief facts

The Applicant sought to be enjoined as an interested party in the instant Petition. The Application introduced new facts and issues not before the Court and also alleged that the 1st and 2nd Petitioners were interfering with the trial process of the Court by pre-empting the exercise of normal judicial discretion.

The Petitioners opposed the application on grounds that the application was made in bad faith and that it was frivolous, vexatious and an abuse of Court process. The 1st and 2nd Respondents also opposed the application on grounds that the application had the intention of diverting the true issues in contest in the main petition.

Issues

      i.   What were the considerations for one to be enjoined as an interested party in a presidential election petition?

      ii.   Whether an application to be enjoined as an interested party that introduced new parties and excluded other parties, and that introduced new facts and                   issues that were not before the Court was valid,

Held

1.    An Applicant for joinder had to satisfy the Court that they fulfilled the legal requirements for joinder under Rule 25 of the Supreme Court.

2.    The Applicant’s application introduced new parties and excluded some of the parties in the instant Petition. The application introduced new facts and issues that were not before the Court.  The Applicant was not in a position to advance any submissions that would be helpful to the Court.

3.     The Applicant sought to introduce a new petition and pre-empted the duly lodged cause of the parties in the main proceedings. That was not acceptable.  Furthermore, the Applicant would not suffer any prejudice if his intervention was denied

Application dismissed.

Legal requirements relating to joinder of an Interested Party to a Presidential election petition.

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya

D Maraga, CJ; P Mwilu, DCJ; M Ibrahim, JB Ojwang, S Wanjala, NS Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Beryl Ikamari and Reson Sheila

Election Laws- Presidential election petition-joinder of interested parties in a Presidential Election Petition- grounds considered for an applicant to be enjoined as an interested party-relevance and usefulness of the submissions of the intended interested party to the proceedings and the Court- Supreme Court (Presidential Election Petition) Rules, 2017, rule 4(2); Supreme Court Rules, 2012, rule 25

Brief Facts

The Applicant sought joinder in the capacity of interested party to the petition. He urged that if he was denied joinder, he, as well as other Kenyan citizens, would suffer prejudice, as there was a real risk that the Government due to assume office, would stand in contravention of articles 1(1), 3(2), 2(2) and 3(1) of the Constitution.

It was the Applicant’s case that the basis of his application was different from what was presented by the Petitioners. He contended that the grounds of the Petitioners’ case covered issues of the post-nomination day, voting day and post- voting day, as well as vote-counting records, and vote tallying. His grounds were that the 1^st and 2^nd Respondents were not, eligible for election as President or Deputy President in the terms of the provisions of article 137 (1) (b), as read with articles 99 (1) (b), 148(1), and Chapter 6 of the Constitution.

The Applicant contended that the 3^rd Respondent was not a ‘political party’ as defined in articles 91, 92 and 260 of the Constitution and hence it did not have the legal capacity to nominate any person for elective office under the Constitution.

Consequently, it was contended that the election of the 1^st and 2^nd Respondents as President and Deputy President, was a nullity. The Applicant contended that the 3^rd Respondent had not been holding free and fair elections, and had been acting unconstitutionally.

Issues

1. Whether an Applicant seeking joinder as an Interested Party could introduce new facts, new parties and exclude some of the current parties.
2. Factors to be considered in enjoining an interested party in a presidential election petition.

Held

1. The applicable law on joinder of interested parties was embodied in the Supreme Court (Presidential Election Petition) Rules, 2017and the Supreme Court Rules, 2012. Under rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017, where there was no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2012 in so far as they were not inconsistent with the Act or these Rules, would apply to an election petition.

2. Rule 25 of the Supreme Court Rules, 2012 provided for interventions relating to applications to be joined as an Interested Party. It provided that the contents of an application for leave to be enjoined as an Interested Party would include:

1. description of the Interested Party;
2. any prejudice that the Interested Party would suffer if the intervention was denied,
3. the grounds or submissions to be advanced by the person interested in the proceedings, and
4. relevance and usefulness of the submissions to the proceedings and the Court.

3. The Applicant sought joinder to the suit and also sought to introduce new parties and exclude some of the existing parties. He also wanted the Court to delve into issues that featured in the 2013 Presidential election. The Applicant was in essence introducing new facts and issues that were not already before the Court.

4. Where the Applicant introduced a new petition, with issues not laid before the Court, he was improperly making claims on a cause that belonged to other parties, in the main proceedings. That could not be allowed. Additionally, the Court was also not convinced that the Applicant would suffer any prejudice, if his proposed intervention was declined.

Application dismissed.

Guiding Principles in determining an Application to be enjoined as Amicus Curiae (friend of the court) in a Presidential Election Petition

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Information Communication Technology Association (ICTAK) (as Amicus Curiae) [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya at Nairobi

D Maraga, CJ, Mwilu, DCJ, M Ibrahim, J B Ojwang, S Wanjala, N Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Ribia John and Felix Okiri

Election Law – Presidential Election petition – application to be enjoined as amicus curiae - guiding principles applicable in determining an application to be enjoined as amicus curiae - whether an application to be enjoined as amicus curiae that addressed points of law which were addressed by other parties in the petition was valid - Supreme Court Rules, Rule 54

Civil Practice and Procedure – application to be enjoined as amicus curiae - application to be enjoined as amicus curiae in a presidential election petition - guiding principles applicable in determining an application to be enjoined as amicus curiae - whether an application to be enjoined as amicus curiae that addressed points of law which were addressed by other parties in the petition was valid - Supreme Court Rules, Rule 54

Brief facts

The Applicant filed an application based upon Rule 54 of the Supreme Court Rules, and other provisions of the law to be enjoined as amicus curiae.

The Applicant relied on the grounds that: the intended amicus curiae had been greatly involved in ICT policy as well as technical matters in Kenya; had a legitimate interest in being enjoined in the Petition, so as to make submissions on diverse election-technology questions which had a bearing on the determination of the matter; and that the participation of the intended amicus curiae in the proceedings would contribute substantially towards realizing a professionally-sound decision.

The Petitioners opposed the application on grounds that the time frame for hearing and determining the petition was limited and as such the interests of justice would not be served by admitting the Applicant. The 1st and 2nd Respondents contested the proposed joinder on grounds that the Applicant had not established any expertise or knowledge that would aid the Court in determining the Petition as required under rule 54(2) of the Supreme Court Rules, 2012. The 3rd Respondent opposed the application on grounds that the Applicant did not meet the legal threshold for admission as amicus curiae

Issue

         i.            What were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition?

       ii.            Whether an application to be enjoined as amicus curiae that addressed points of law that were addressed by other parties in the petition was valid

Relevant provisions of the law

Supreme Court (Presidential Election Petition) Rules, 2017

 Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017 provides:

  “Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2017 in so far as they are not inconsistent with the Act or these Rules, shall apply to an election petition.”

 Rule 54 of the Supreme Court Rules, 2012 provides:

  “(1)   The Court may –

 (a) in any matter allow amicus curiae;

 (b) appoint a legal expert to assist the Court in legal admissions;

 (c) at the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter;

 “(2)  The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest or any other relevant factor.”

Held

1.       To be allowed joinder, the Applicant had to meet the legal requirements provided under rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017 as read with Rule 54 of the Supreme Court Rules, 2012.

2.       An amicus brief should be:

a)      limited to legal arguments ;

b)     The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.

c)     An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.

3.       The Applicant had indicated that the amicus brief would be limited to legal arguments. However, the amicus brief addressed points of law already addressed by other parties.

4.        The Applicant had not demonstrated what specific question it sought to address.  The Applicant’s propositions bore a general orientation that was not focused on a specific question falling for determination before the instant Court. The application did not meet the requisite threshold.

 Application dismissed with no orders as to costs.

Time within Which an Affidavit ought to be filed in a Presidential Election Petition

Raila Amolo Odinga and another V. Independent Electoral and Boundaries Commission and 2 Others

Presidential Petition No. 1 of 2017

Supreme Court of Kenya

Maraga, CJ & P, Mwilu, DCJ & V-P, Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ

August 27, 2017

Reported by Amazon Chepkirui and Robai Nasike Sivikhe

Election Law- Presidential Election Petition-Affidavits – Filing of Affidavits-Time within which an affidavit ought to be filed in a presidential election petition- whether the affidavits in question were filed out of time allowed for filing an election petition contrary to Rule 10 of the Supreme Court (Presidential Election Petition) Rules- Supreme Court (Presidential Election Petition) Rules, Rule 10

Election Law- Presidential Election Petition- Affidavits- Affidavit evidence- consideration of the question whether the affidavits in question sought to introduce new evidence and changed the character of the petition

Brief Facts

The 1^st Respondent made an application to expunge various affidavits that had been filed on grounds that the affidavits were filed out of time allowed for filing an election petition contrary to Rule 10 of the Supreme Court (Presidential Election Petition) Rules; and that they raised new causes of action and contained additional evidence that changed the nature and character of the Petition, to which the 1^st Respondent was constrained to respond.

Issues

1. Whether the affidavits in question were filed out of time allowed for filing an election petition contrary to Rule 10 of the Supreme Court (Presidential Election Petition) Rules
2. Consideration of the question whether the affidavits in question sought to introduce new evidence and changed the character of the petition

Held

1. All the affidavits sought to be expunged from the Court record were referred to as affidavits in support of the Petitioners’ application dated 24^th August, 2017 and filed on 25^th August, 2017. That being the case, there was no merit in the Applicant’s claim that the affidavits in question were filed out of time contrary to Rule 10 of the Supreme Court (Presidential Election Petition) Rules.
2. The question as to whether the said affidavits sought to introduce new evidence and changed the character of the petition was one to be determined by the instant Court while considering the Interlocutory Application.

Application dismissed

Considerations for one to be Enjoined as amicus curiae (Friend of the Court) in a Presidential Election Petition.

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Law Society of Kenya (as Amicus Curiae) [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya

D Maraga, CJ; P Mwilu, DCJ; M Ibrahim, JB Ojwang, S Wanjala, NS Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Ribia John and Reson Sheila

Election Law – presidential election petition - application to be enjoined as amicus curiae in the presidential election petition – considerations for one to be enjoined as amicus curiae in a presidential election petition - where a party had applied and failed to be enjoined as amicus curiae in a previous presidential election petition - whether previous denial of a party’s application to be enjoined as amicus curiae in a presidential election petition would automatically invalidate the party’s future application to be enjoined as amicus curiae in presidential election petitions.

Civil Practice and Procedure– application to be enjoined as amicus curiae in the presidential election petition- considerations for one to be enjoined as amicus curiae in a presidential election petition- where a party had applied and failed to be enjoined as amicus curiae in a previous presidential election petition- whether previous denial of a party’s application to be enjoined as amicus curiae in a presidential election petition would automatically invalidate the party’s future application to be enjoined as amicus curiae in presidential election petitions– Supreme Court Rules, 2012 rule 54 

Brief facts

Law Society of Kenya (LSK) filed an application seeking to be admitted to the instant petition as amicus curiae (friend of the Court), pursuant to rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017, and the Practice Directions issued by the Court.

The application was premised on grounds that LSK had significant expertise and knowledge on constitutional and electoral law matters which were relevant to the instant petition; and that the LSK would assist the Court in the interpretation and application of relevant constitutional and statutory provisions, Kenyan jurisprudence and comparative foreign law.

 An advocate of the High Court and a council member, filed a replying affidavit in opposition of the application on grounds that the LSK did not qualify for admission as amicus curiae for lack of impartiality and the fact that it was an election observer. Though its chairperson, it had issued a statement after the election that the voting process was largely free, fair and credible. The opposing council member also alleged that LSK Council was split on the decision whether to seek admission in the petition as amicus and that some of the LSK members participated in the election.

Issues

         i.            What were the considerations for one to be admitted as amicus curiae in a presidential election Petition

        ii.            Whether the objectives of the LSK as listed out under section 4 of the Law Society Act was a panacea by which the LSK could be admitted as amicus curiae in all cases

       iii.            Whether previous denial of a party’s application to be enjoined as amicus curiae in a presidential election petition would automatically invalidate the party’s future application to be enjoined as amicus curiae in a presidential petition

Held

1.      The legal framework and principles for admission of amicus were statutory embodied in rule 54 of the Supreme Court Rules, 2012. As a friend of the Court, a party was not to be partisan as it had no personal stake in the matter save for fidelity to the Constitution and assisting the Court reach a legally sound determination. The decision whether to admit a party was at the discretion of the Court, though parties on record could be invited to respond to such an application.

2.      LSK was a statutory body whose objectives were provided for in section 4 of the Law Society Act. Key among them their objectives being: assisting the Government and the Courts in matters relating to legislation, the administration of justice and the practice of law in Kenya; and in upholding the Constitution of Kenya and advancing the Rule of Law and administration of justice. One of the ways the Society assisted courts in the administration of justice, was when it acted as amicus in matters before those courts. However, that position was not a panacea for admission of the Society as amicus in all cases. Leave had to be sought and a basis satisfactorily laid.

3.      While the Applicant was previously denied admission as amicus curiae in a similar petition in 2013, that could not be a ground for subsequent denial. Neither could the fact that the LSK was previously admitted, be a ground for admission in subsequent proceedings. Each matter before the Court was unique and raised unique issues for determination and legal questions under different circumstances. Subsequently, an application had to be determined on its merit, on a case to case basis so as to determine whether an intended Applicant possessed the expertise relevant to assist the Court. The Court could not take judicial notice of an amicus’ expertise. It was a matter of fact to be pleaded and proved.

4.      Divergent positions of the LSK members were matters which needed proper contextualization given that every citizen was entitled to his/her political right in article 28 of the Constitution. When such an application was filed before the Court, it had to be evaluated on the basis of the LSK’s objectives and not individual LSK members.

5.      The core of this Petition was the interpretation and application of articles 81 and 86 of the Constitution. That placed the matter squarely within the LSK’s objectives. The instant petition also raised the question as regards the validity or otherwise of the people’s exercise of their sovereign power. Nothing could be of great public interest, so as to invite the safeguarding from the LSK than a question that touched on the people’s exercise of their sovereign power.

Application allowed.

Orders:

         i.            LSK admitted as amicus curiae

        ii.            Directions that LSK restricts its submissions on the single issue contained in its brief, being the rightful interpretation of section 83 of the Elections Act in relation to the Constitution.

Application to strike out of the Court record documents in an election petition served out of time dismissed

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others

Presidential Petition No. 1 of 2017

Supreme Court of Kenya

D K Maraga, CJ & President, P M Mwilu, DCJ & Vice President, M K Ibrahim, J B Ojwang, S C Wanjala, N S Ndungu & I Lenaola,  SCJJ

August 27, 2017

Reported by Njeri Mweha

Electoral Law - presidential election petition - service of election petition documents - delay in effecting service - striking out documents from the record of the Court for want of service - considerations that the Court would have under the circumstances - Supreme Court (Presidential Election) Rules, 2017, rule 11(1).

Brief Facts

The Applicant sought orders to strike out from the Court record documents filed by the Respondents which were served out of time. The orders were sought on grounds that the documents were served upon the Petitioners out of time contrary to the provisions of rule 11(1) of the Supreme Court (Presidential Election) Rules, 2017. The Applicant stated that the delay in serving the documents prejudiced the Petitioners' right to adequately consider and reply to the issues that the documents raised. The Applicant also said that the Respondents did not seek leave to file and serve the documents out of time.

Counsel for the 1^st and 2^nd Respondents explained that at the time service was being effected, the office of the Petitioners' advocates, Murumba and Awele advocates was closed. Additionally, counsel for the 3^rd Respondent said that no prejudice was suffered as there was a delay of only a few hours.

Issue

1. Whether the Court would strike out documents which were served out of time from the Court record.

Held

1. The nature of the application was such that if it were to be granted, it would dispose of the entire case of the 1^st, 2^nd and 3^rd Respondents at a preliminary stage. Such a drastic consequence would not be justified if the scales of justice were weighed in favour of all the parties to the petition.

Application dismissed. 

Guiding Principles in determining an Application to be enjoined as Amicus Curiae (friend of the court) in a Presidential Election Petition

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Proposed Amicus Curiae) [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya at Nairobi

D Maraga, CJ, Mwilu, DCJ, M Ibrahim, J B Ojwang, S Wanjala, N Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Ribia John and Felix Okiri

Electoral Law – joinder of parties - Presidential Election petition – application to be enjoined as amicus curiae - guiding principles applicable in determining an application to be enjoined as amicus curiae – where the Applicant was a presidential candidate in the Presidential Election - what were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition - whether being a presidential candidate in a Presidential Election was enough consideration for one to be enjoined as amicus curiae in a presidential election petition -  whether an application by an independent candidate to be enjoined as amicus curiae  could be allowed on grounds of objectivity of the applicant - whether a party who applied to be enjoined as amicus curiae had to demonstrate an identifiable stake or a legal interest in the proceedings - Supreme Court Rules, Rule 4(2) and 54

Brief facts

The Applicant filed an application based upon Rule 22 of the Supreme Court (Presidential Election Petition) Rules, 2017 and the inherent power of the Court to be enjoined as an interested Respondent or in the alternative as amicus curiae or in such capacity as the Court could direct. The applicant relied on the grounds that: he was a relevant party as he was an independent candidate in the August 8, 2017 Presidential election; and that he was able to table material that brought objectivity to the process of adjudicating the issues raised in the instant petition because he was as an independent candidate that was not affiliated to any political party.

The Petitioner opposed the application on the ground that the Applicant had not demonstrated any identifiable stake or legal interest in the proceedings. He averred that the applicant wished to advance his own interest, in the matter and did not demonstrate that he would suffer any prejudice if the application had been denied. 

Issues

1. What were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition?
2. Whether being a presidential candidate in a Presidential Election was enough consideration for one to be enjoined as amicus curiae in a presidential election petition.
3. Whether an applicant could apply to be enjoined as an interested Respondent or in the alternative as amicus curiae or in such capacity as the Court could direct.

Relevant provisions of the law

Supreme Court Rules, 2012

 Rule 54(2)

The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest, or any other relevant factor.

Supreme Court (Presidential Election Petition) Rules, 2017.

Rule 4(2)

 “(1) a person may at any time in any proceedings before the Court apply for leave to be enjoined as an interested party.

 (2) An application under this rule shall include-

      (a) a description of the interested party;

(b)any prejudice that the interested party would suffer if the intervention was denied; and

(c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”

Held

1. The guidelines for one to be enjoined as amicus curiae are:
   1. An amicus brief should be limited to legal arguments.
   2.  The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
   3.  An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay.  The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
   4.  An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
   5.  The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General was not defeated solely by the subsistence of a State interest, in a matter of public interest.
   6.  Where, in adversarial proceedings, parties allege that a proposed amicus curiae was biased, or hostile towards 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 would consider such an objection by allowing the respective parties to be heard on the issue.
   7.  An amicus curiae is not entitled to costs in litigation.  In instances where the Court requests the appearance of any person or expert as amicus, the legal expenses may be borne by the Judiciary.
   8. The Court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.
   9.  In appropriate cases and at its discretion, the Court may assign questions for amicus research and presentation.
   10. An amicus curiae shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.
2. The Applicant did not meet the criteria set out in law and precedent as he was biased and was opposing the application which when put into context revealed that he was partisan. The intended amicus curia was not neutral and his application had to fail.
3. However, on perusal of the record, the applicant met the conditions set out in law on joinder of interested parties to a suit. The Applicant was a candidate in the August General Elections, 2017 and this had shown a personal stake or interest in the matter.
4. For one to be enjoined in proceedings as an interested party, they had to move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds had to be laid before the Court on the basis of the following elements:

1. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
2.  The prejudice to be suffered by the intended interested party in case of non- joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
3. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.

5. The Applicant as a candidate in Presidential Election had a definitive stake in the outcome of the case.

Application allowed.

 Orders:

1. The applicant is admitted as an Interested Party.
2. Applicant written submissions to be filed by 8am on the 28^th August 2017 and limited to 5 pages only, of Font 12, 1.5 spacing.

The Right of Audience of the Attorney General in Matters of Public

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Attorney General (as intended amicus curiae) [2017] eKLR

Petition 1 of 2017

Supreme Court

Maraga, CJ. & P; Mwilu, DCJ & V-P; Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ

September 13, 2017

Reported by John Ribia & Amazon Koech

Constitutional law- Office of the Attorney General- Powers of the Attorney General- right of audience of the Attorney General in proceedings that raised matters of public interest -  Constitution of Kenya, (2010) article 156; Office of the Attorney General Act, section 7

Election Law - Presidential Election Petition – joinder of parties – application by the Attorney General to be enjoined as amicus curiae – – right of audience of the Attorney General in matters of public interest - authority of the Attorney General to be enjoined in suits which a government is not a party to - what were the factors the Office of the Attorney General had to satisfy so as to be enjoined as amicus curiae in a suit - Constitution of Kenya, (2010) article 156; Office of the Attorney General Act, section 7.

Civil Practice and Procedure – joinder of parties – application by the Attorney General to be enjoined as amicus curiae – application to be enjoined as amicus curiae in a presidential election petition – guiding principles applicable in determining an application by the Attorney General to be enjoined as amicus curiae

Relevant provisions of the law

Constitution of Kenya, 2010

Article 156 (1) There is established the office of Attorney-General.

 (2) The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

 (3) The qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice.

 (4) The Attorney-General—

 (a) is the principal legal adviser to the Government;

 (b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and

 (c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.

 (5) The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.

 (6) The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.

 (7) The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Office of the Attorney General Act, 2012

Section 7

 Audience by Attorney-General in matters of public interest,

 (1) Despite the provisions of any written law to the contrary or in the absence of any other written law, the Attorney-General shall have the right of audience in proceedings of any suit or inquiry of an administrative body which the Attorney General considers—

 (a) to be of public interest or involves public property; or

 (b) to involve the legislature, the judiciary or an independent department or agency of the Government.

 (2) In the exercise of the powers of the Attorney-General under subsection (1), the Attorney-General shall—

 (a) notify any court, tribunal or any other administrative body of the intention to be enjoined to the suit, inquiry or administrative proceedings; and

 (b) satisfy the court, tribunal or any other administrative body of the public interest or public property involved, and comply with any direction of the court, tribunal or any such other administrative body on the nature of pleadings or measures to be taken for purposes of giving effect to the effective discharge of the duties of the Office.

 (3) Where a suit, inquiry or any other proceedings is pending before a court, tribunal or any other administrative body to which the Attorney-General does not have a right of audience, it shall be sufficient for the Attorney-General to file a certificate of the intention of the Attorney-General to be joined in the proceeding.

 (4) The court, tribunal or any such administrative body shall, upon receipt of a certificate under subsection (3), enjoin the Attorney-General in the proceedings.

Brief Facts

The Attorney General of the Republic of Kenya sought to be enjoined to the proceedings as Amicus Curiae in the Presidential Election Petition on the basis that he had both a Constitutional and statutory obligation to assist the Court in matters involving complex and legal questions and to place materials and expert research that would aid in fair, just and impartial adjudication of the issues in dispute.

The Petitioners opposed the application on grounds that the Applicant having been admitted as amicus in the 2013 Presidential Petition took a partisan view supporting the 1^st and 3^rd Respondents Case.

Issues

i.            What were the guiding principles applicable in determining an application to be enjoined as amicus curiae?

ii.            Whether the Attorney general could raise the issue of how the IEBC conducted the election in the amicus brief; an issue which he had previously raised and which had been determined by the Court of Appeal in the case of IEBC v Maina Kiai & 4 Others [2017] eKLR

Held

1.      The role played by the Attorney General as an institution within the Executive Arm of Government in Kenya was an important one as enumerated by article 156 of The Constitution of Kenya,2010  that established the office of the Attorney General and gave the office of the Attorney General the authority to appear as a friend of the Court in civil proceedings to which the Government was not a party with leave of the Court

2.      Article 156(4)(c) of the Constitution and the Office of the Attorney General Act, 2012, outlined the function and powers of the Attorney General. Key among them being the right of audience of the Attorney General before the Courts in matters of public interest. Section 7 of the Office of the Attorney General Act granted the Attorney- General the right of audience in proceedings of any suit, that involved the legislature, the judiciary or an independent department or agency of the government. The Attorney General also had the power to notify any court, tribunal or any other administrative body of the intention to be enjoined to the suit, inquiry or administrative proceedings; and satisfy the Court, Tribunal or any other administrative body of the public interest or public property involved, and comply with any direction of the court, tribunal or any such other administrative body on the nature of pleadings or measures to be taken for purposes of giving effect to the effective discharge of the duties of the Office.

3.      The instant proceedings involved issues of great public interest. The complex interplay of law and fact presented in the instant case touched on the sovereignty of the people and the inalienable right of every Kenyan citizen to determine the form of governance for Kenya. Millions of Kenyan citizens participated in the General Elections held on August 8, 2017. Despite being one of Kenya’s highest voter outcome statistics, it preceded a lengthy period of electoral law reform culminating in Chapter Seven of the Constitution of Kenya, 2010. Elections, properly conducted, represented the people’s will and it enabled the exercise of their sovereign power through democratically elected representatives. The Office of the Attorney General was an integral part of the National Executive and it bore the privilege of Executive Authority but was bound by the necessary and sacred strictures of exercise of that power. It had to be exercised in a manner compatible with the principle of service to the people of Kenya, for their well-being and benefit pursuant to article 129(2).

4.      The Attorney General satisfied the Supreme Court that issues of public interest were involved in the instant suit. The Attorney General elected to be enjoined in the proceedings as a friend of the Court. The Attorney General’s mandate was to be assessed against the following principles:

a.      An amicus brief should be limited to legal arguments.

b.      The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.

c.     An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay.  The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.

d.     An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.

e.      The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General was not defeated solely by the subsistence of a State interest, in a matter of public interest.

f.         Where, in adversarial proceedings, parties allege that a proposed amicus curiae was biased, or hostile towards 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 would consider such an objection by allowing the respective parties to be heard on the issue

g.     An amicus curiae is not entitled to costs in litigation.  In instances where the Court requests the appearance of any person or expert as amicus, the legal expenses may be borne by the Judiciary.

h.      The Court would regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.

i.          In appropriate cases and at its discretion, the Court could assign questions for amicus research and presentation.

j.          An amicus curiae shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.

k.      The applicant ought to raise any perception of bias or partisanship, by documents filed, or by his submissions.

l.         The applicant ought to be neutral in the dispute, where the dispute is adversarial in nature.

m.   The applicant ought to show that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available. The applicant ought to draw the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. Therefore, the Applicant ought to show that there was no intention of repeating arguments already made by the parties.  And such new matter as the applicant sought to advance, had to be based on the data already laid before the Court, and not fresh evidence.

n.     The Applicant ought to show expertise in the field relevant to the matter in dispute, and in that regard, general expertise in law does not suffice.

o.      Whereas consent of the parties, to proposed amicus role, is a factor to be taken into consideration, it is not the determining factor.

5.      The Court, which was the custodian of rules of validity, propriety and fair play under the Constitution and the law, remained in charge, in regulating the precise role the Attorney-General could play if admitted as amicus curiae. While the Attorney General would enrich the material placed before the instant Court, on issues of law, relevant in determining the Petition, the Court had to guard against granting the Attorney General leave to address all issues proposed.

6.      Permitting the Attorney General to address the issue of how the IEBC conducted the presidential election, which the Attorney General had addressed as amicus curiae in the case of IEBC v Maina Kiai & 4 Others [2017] eKLR would, with respect, be allowing the Attorney General to re-litigate issues in a matter to which he was an active party to the adversarial proceedings and in which he preferred a clear position for or against a party which was also before the instant Court, directly or by association. That bore the risk of prejudicing the Parties concerned negating the core principle that justice must not only be done, but be seen to be done.

7.      Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased, or hostile towards 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 would consider such an objection by allowing the respective parties to be heard on the issue.

8.      Due to the strict bounds of time within which the Court was to hear and determine the Petition, Parties did not have adequate time to respond to the Attorney General’s brief before a determination on it. To avert the risk, the specific issue of how the IEBC conducted the presidential election, was to be expunged from the amicus brief.

9.      The other questions addressed in the Attorney General’s amicus brief were pertinent to the instant case. Since the 2013 General Elections, the electoral jurisprudence set by this and other Courts inspired electoral law reform in various aspects. The Attorney General was part of that process and brought a critical originalism’s perspective regarding the process to the proceedings, as a friend of the Court. The amicus brief addressed itself to pure issues of law and in a clear, concise way. The role of interpretation and application of the law to the facts in the case however rested with the Court.

Application allowed.

Considerations for one to be Enjoined as a Party in a Presidential Election Petition

Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others &  Ekuru Aukot [2017] eKLR

Petition 1 of 2017

Supreme Court of Kenya

D Maraga CJ,P Mwilu, DCJ ; M Ibrahim, J B Ojwang, S Wanjala, N Ndung’u and I Lenaola, SCJJ

August 27, 2017

Reported by Ribia John and Njeri Mweha

Election Law – Presidential Election Petition - application to be enjoined as an interested party – application to be enjoined as an interested party in the presidential election petition – where the applicant was a presidential candidate in the election - what were the considerations for one to be enjoined as an interested party in a presidential election petition - whether being a presidential candidate in a general elections was enough consideration for one to be enjoined as an interested party in a presidential election petition – Supreme Court Rules, 2012 rules 25 and 26

Civil Practice and Procedure – joinder of parties- application to be enjoined as an interested party – application to be enjoined as an interested party in the presidential election petition – where the applicant was a presidential candidate in the election - what were the considerations for one to be enjoined as an interested party in a presidential election petition - whether being a presidential candidate in a general elections was enough consideration for one to be enjoined as an interested party in a presidential election petition – Supreme Court Rules, 2012 rules 25 and 26

Brief facts

The Applicant was a presidential candidate in the August 8, 2017 general election and sought to be enjoined as an interested party in the instant Petition. The Application was based on grounds that the Applicant had a direct and legitimate interest in the instant Petition and that the Applicant’s interests in the proceedings was to champion the collective cause of his party and constituents in the manner the elections were conducted.

 The 1^st   Respondent opposed the application on the grounds that, the applicant sought to pursue a partisan position and therefore was not be enjoined as an intervenor as provided for under rule 25 of the Supreme Court Rules. The 2nd Respondent also opposed the application on grounds that the application failed to meet the threshold of rule 25 of the Supreme Court Rules.

 Issues

i.            What were the considerations for one to be enjoined as an interested party in a presidential election petition?

ii.           Whether being a presidential candidate in a general elections was enough consideration for one to be enjoined as an interested party in a                                 presidential election petition.

Held

1.      The Applicant had failed to show in terms of rule 25 of the Supreme Court Rules, 2012 that he would suffer any prejudice if the intervention was denied             and that the grounds or submissions to be advanced would be different from the other Parties to the proceedings.

2.      Enjoinment is not as of right but is at the discretion of the Court. Sufficient grounds had to be laid before a Court, on the basis of the following elements:

a)    The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.

b)     The prejudice to be suffered by the intended interested party in case of non-joinder, had to be demonstrated to the satisfaction of the Court. It had to also be clearly outlined and not something remote.

c)    A party had to, in its application, set out the case and/or submissions it intended to make before the Court, and demonstrate the relevance of those submissions. It was also demonstrate that the submissions were not merely a replication of what the other parties would be making before the Court.

3.      The Applicant was a presidential candidate in the August 8, 2017 general elections.  That was an identifiable stake in the matter, and he would be                     directly affected by the outcome of the present presidential election petition.

Application Allowed

Orders:

i.            Applicant was to file the alleged report in his affidavit by 8.00 AM on August 28, 2017 and serve upon all parties.

ii.            Applicant written submissions to be filed by 8:00 AM on August 28, 2017 and limited to 5 pages only, of Font 12, 1.5 spacing.