Presidential Election Petition 2 of 2017

Case Metadata
Case Number:	Presidential Election Petition 2 of 2017
Parties:	Mwau v Independent Electoral and Boundaries Commission & 2 others; Wamaya (Applicant)
Date Delivered:	14 Nov 2017
Case Class:	Civil
Court:	Supreme Court of Kenya
Case Action:	Ruling
Judge(s):	David Kenani Maraga, Jackton Boma Ojwang, Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Citation:	Mwau v Independent Electoral and Boundaries Commission & 2 others; Wamaya (Applicant) (Presidential Election Petition 2 of 2017) [2017] KESC 7 (KLR) (14 November 2017) (Ruling)
County:	Nairobi
Case Summary:	Legal requirements to be enjoined as an interested party in Supreme Court Proceedings. Brief facts Ben Caleb Wamaya made an Application for joinder as an interested party in the Presidential Election Petition No. 2 of 2017. He contended that he was a registered voter, who wished to cast his vote in the October 26, 2017 repeat presidential election but he was denied his right to do so due to the unavailability of election staff and materials and the actions of the Police chasing away people from the polling station. Issues What were the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings? Whether the Applicant satisfied the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings. Relevant provisions of the law *The Supreme Court Rules, 2012;* *Rule 25;* Interventions; (1) A person may at any time in any proceedings before the Court apply for leave to be joined 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. (4) An application under this rule shall be determined on the basis of written submissions. Provided that the Court may, where the applicant is unrepresented, direct that submissions may not be made orally. *The Supreme Court (Presidential Election Petition) Rules, 2017;* *Rule 4 (2);* 4(2) 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. Held The applicant had not demonstrated that he had an identifiable stake in the instant petition, nor had he demonstrated that he would have been prejudiced if he was not enjoined as a party taking into consideration the issues he raised had already been addressed by the parties. The Applicant did not qualify to be joined as an interested party and disallowed the application under Rule 25 of the Supreme Court Rules as read with Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules 2017. The application did not meet the principles laid out in *Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, (Supreme Court Petition No. 12 of 2013), [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others,* (Supreme Court Petition No. 15 & 16 of 2015 (consolidated)) [2016] eKLR, in that the Applicant did not intend to make submissions before the Court that were not already presented by the rest of the parties.
Extract:	Cases Muruatetu, Francis Karioko & Wilson Thirimbu Mwangi v Republic,Katiba Institute, Death Penalty Project, Kenya National Commission on Human Rights, International Commission of Jurists-Kenya Chapter, Legal Resources Foundation & Attorney General (Petition 15 & 16 of 2015; [2017] KESC 2 (KLR)) — Applied Trusted Society of Human Rights Alliance v Matemu, Mumo & 5 Others, (Supreme Court Petition No. 12 of 2013, [2015] eKLR) — Applied Statutes Supreme Court (Presidential Election Petition) Rules, 2017 (act no 7 of 2011) — Rule 4(2) — Interpreted Supreme Court Rules, 2012 (act no 7 of 2011) — Rule 25 — Interpreted Advocates None mentioned
Case Outcome:	Petition dismissed
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

Case Metadata

Case Number:

Parties:

Mwau v Independent Electoral and Boundaries Commission & 2 others; Wamaya (Applicant)

Date Delivered:

14 Nov 2017

Case Class:

Civil

Court:

Supreme Court of Kenya

Case Action:

Ruling

Judge(s):

David Kenani Maraga, Jackton Boma Ojwang, Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Citation:

Mwau v Independent Electoral and Boundaries Commission & 2 others; Wamaya (Applicant) (Presidential Election Petition 2 of 2017) [2017] KESC 7 (KLR) (14 November 2017) (Ruling)

County:

Nairobi

Case Summary:

Legal requirements to be enjoined as an interested party in Supreme Court Proceedings.

Brief facts

Ben Caleb Wamaya made an Application for joinder as an interested party in the Presidential Election Petition No. 2 of 2017. He contended that he was a registered voter, who wished to cast his vote in the October 26, 2017 repeat presidential election but he was denied his right to do so due to the unavailability of election staff and materials and the actions of the Police chasing away people from the polling station.

Issues

What were the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings?
Whether the Applicant satisfied the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings.

Relevant provisions of the law

The Supreme Court Rules, 2012;

Rule 25; Interventions;

(1) A person may at any time in any proceedings before the Court apply for leave to be joined 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.

(4) An application under this rule shall be determined on the basis of written submissions. Provided that the Court may, where the applicant is unrepresented, direct that submissions may not be made orally.

The Supreme Court (Presidential Election Petition) Rules, 2017;

Rule 4 (2);

4(2) 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.

Held

The applicant had not demonstrated that he had an identifiable stake in the instant petition, nor had he demonstrated that he would have been prejudiced if he was not enjoined as a party taking into consideration the issues he raised had already been addressed by the parties.
The Applicant did not qualify to be joined as an interested party and disallowed the application under Rule 25 of the Supreme Court Rules as read with Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules 2017.
The application did not meet the principles laid out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, (Supreme Court Petition No. 12 of 2013), [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, (Supreme Court Petition No. 15 & 16 of 2015 (consolidated)) [2016] eKLR, in that the Applicant did not intend to make submissions before the Court that were not already presented by the rest of the parties.

Extract:

Cases

Muruatetu, Francis Karioko & Wilson Thirimbu Mwangi v Republic,Katiba Institute, Death Penalty Project, Kenya National Commission on Human Rights, International Commission of Jurists-Kenya Chapter, Legal Resources Foundation & Attorney General (Petition 15 & 16 of 2015; [2017] KESC 2 (KLR)) — Applied
Trusted Society of Human Rights Alliance v Matemu, Mumo & 5 Others, (Supreme Court Petition No. 12 of 2013, [2015] eKLR) — Applied

Statutes

Supreme Court (Presidential Election Petition) Rules, 2017 (act no 7 of 2011) — Rule 4(2) — Interpreted
Supreme Court Rules, 2012 (act no 7 of 2011) — Rule 25 — Interpreted

Advocates

None mentioned

Case Outcome:

Petition dismissed

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

Mwau v Independent Electoral and Boundaries Commission & 2 others; Wamaya (Applicant) (Presidential Election Petition 2 of 2017) [2017] KESC 7 (KLR) (14 November 2017) (Ruling)

John Haron Mwau v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR

Neutral citation: [2017] KESC 7 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition 2 of 2017

DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

November 14, 2017

Between

John harun Mwau

Petitioner

and

Independent Electoral and Boundaries Commission

1^st Respondent

Chairperson of Independent Electoral and Boundaries Commission

2^nd Respondent

Uhuru Muigai Kenyatta

3^rd Respondent

and

Ben Caleb Wamaya

Applicant

Ruling

(An application for joinder as an interested party under rule 25 of the Supreme Court Rules, 2012 as read with rule 4 (2) of the Supreme Court (Presidential Election Petition) Rules, 2017)

1.Upon perusing the application dated November 7, 2017 and filed on even date by Ben Caleb Wamaya for joinder as an interested party in the Presidential Election Petition No 2 of 2017 and;

2.upon reading: the affidavit of Mr Ben Caleb Wamaya (registered to vote at Carwash Polling Station code No 015, in Kisumu Central Constituency, Kisumu County), sworn on the 7^th November, 2017;

3.Upon considering the arguments made therein, in which the applicant contended that he is a registered voter, who wished to cast his vote in the October 26, 2017 repeat presidential election but he was denied his right to do so due to the unavailability of election staff and materials and the actions of the police chasing away people from the polling station.

4.The applicant has not demonstrated that he has an identifiable stake in the present petition neither has he demonstrated that he will be prejudiced if he is not enjoined as a party taking into consideration the issues he raises have already been addressed by the parties.

5.Having considered the application, by a unanimous decision of the court, we find that the applicant does not qualify to be joined as an interested party and make the following orders under rule 25 of the Supreme Court Rules as read with rule 4(2) of the Supreme Court (Presidential Election Petition) Rules 2017.

ORDERSThe application is disallowed.

REASONSThe application does not meet the principles laid out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No 15 & 16 of 2015 (consolidated); [2016] eKLR in that the applicant does not intend make submissions before the court that are not already presented by the rest of the parties.

DATED AND DELIVERED AT NAIROBI THIS 14^TH DAY OF NOVEMBER, 2017.…………………………………………………………D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT…………………………………………………………P. M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT…………………………………………………………J.B. OJWANGJUSTICE OF THE SUPREME COURT……………………………………………………………S. C. WANJALA-JUSTICE OF THE SUPREME COURT……………………………………………………………S. N. NDUNGUJUSTICE OF THE SUPREME COURT……………………………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA

Case Content:		Subject:
Case Number:		Parties:
Judge:		Court:
	Delivery Date Range:
From:		To:

Case Search