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|Case Number:||Presidential Election Petition 1 of 2017|
|Parties:||Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Mwaura (Intended Amicus Curiae)|
|Date Delivered:||27 Aug 2017|
|Court:||Supreme Court of Kenya|
|Judge(s):||David Kenani Maraga, Jackton Boma Ojwang, Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu|
|Citation:||Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Mwaura (Intended Amicus Curiae) (Presidential Election Petition 1 of 2017)  KESC 38 (KLR) (Election Petitions) (27 August 2017) (Ruling)|
|Court Division:||Election Petitions|
Guiding principles when determining an application to be enjoined as amicus curiae (friend of the court) in a presidential election petition
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 intended 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.
Relevant provisions of the law
Supreme Court Rules, 2012
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.
“(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”
1. The guidelines for one to be enjoined as amicus curiae were:
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 curiae was not neutral and his application had to fail. 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.
3. For one to be enjoined in proceedings as an interested party, they had to move the court by way of a formal application. Enjoinment was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court on the basis of the following elements:
4. The applicant as a candidate in presidential election had a definitive stake in the outcome of the case.
|Case Outcome:||Application allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|