Kingi v Independent Electoral & Boundaries Commission & another (Constitutional Petition E038 of 2022)  KEHC 1723 (KLR) (6 March 2023) (Ruling)
Neutral citation:  KEHC 1723 (KLR)
Republic of Kenya
Constitutional Petition E038 of 2022
OA Sewe, J
March 6, 2023
In The Matter Of Articles 20, 21, 22 And 23 Of The Constitution Of Kenya, 2010 And In The Matter Of Alleged Contravention Of Articles 1(2), 2(4), 10, 35, 38, 47, 88(5), 165 And 180 Of The Constitution Of Kenya And In The Matter Of Sections 17, 38 And 55B Of The Elections Act, No. 24 Of 2011 And In The Matter Of The Constitution Of Kenya (Protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013 And In The Matter Of The Gubernatorial Elections For Mombasa County Government
William Kazungu Kingi
Independent Electoral & Boundaries Commission
(1)The notice of motion dated February 6, 2023 was brought by the Kenya National Commission on Human Rights, the proposed interested party. It seeks orders that the applicant be admitted to the instant proceedings as amicus curiae; and that upon such admission, directions be made as to the filing and service of the applicant’s brief, including any information and/or evidence it may deem important and relevant to facilitate the just disposition of this matter. The applicant also prayed that the costs of the application be in the cause.
(2)The application was filed pursuant to articles 159(2)(d) and 20(3) of the Constitution, Rules 3(1) to 3(5), 3(6)9(a) and (b), 3(7) and 8, 4(2)(iii), 5(d), 6(a) and (b) of the Protection of Rights and Fundamental Freedoms (Practice and Procedure) Rules, 2013 (the Mutunga Rules). It was premised on the grounds that the applicant is a constitutional commission established under article 59(1) of the Constitution and operationalized under the Kenya National Commission on Human Rights Act, No. 11 of 2011; and that its chief mandate is to promote respect for human rights and develop a culture of human rights in the Republic. It further averred that it is empowered under article 249(1) to protect the sovereignty of the people and secure observance by all state organs of democratic values and principles and promote constitutionalism.
3.The applicant further averred that it has considerable expertise in constitutional and international human rights law and its connection to election-related issues; and therefore would be of assistance to the court as amicus curiae in the interpretation and application of the relevant constitutional principles, international law and foreign comparative law within the context of electoral processes, and in particular matters to do with postponement of elections. Within the context of this suit, the applicant proposed the following key questions for consideration, among others:(a)When is it democratic to postpone an election; and is there a strong and democratic case for a time-limited postponement of elections?(b)Does postponement of elections violate the political rights of the affected parties?(c)Does the Kenyan electoral law provide for postponement of elections; and under what circumstances?(d)Is section 55B of the Elections Act unconstitutional?(e)What is the comparative position regionally and internationally on postponement of elections and its ramifications?
(4)The application was supported by the affidavit sworn on February 6, 2023 by Secretary/CEO of the Commission, Dr Bernard Mogesa. At paragraphs 7 to 12 of his affidavit, Dr Mogesa explained that the applicant has over the years monitored elections and other democratic processes within the country and has, as a result, gained enormous wealth of expertise and experience in election matters. It has also participated in election-related petitions and published reports in that regard. Dr Mogesa further deposed that the instant petition involves matters of public interest and it would only be in the interest of justice that the applicant be admitted as a party to the suit.
(5)Needless to say that the court has the power, by dint of rule 6 of the Mutunga Rules, to allow any person with expertise in respect a particular issue which is before the court to appear as a friend of the court. Accordingly, in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others  eKLR, the Supreme Court discussed at length the considerations that come into play when such an application is made. Thus, at paragraphs 41 and 42 of its Judgment, the Supreme Court set out the following guidelines which bear repeating for the interest of the parties:
(6)It is also pertinent to mention that, at paragraph  the Supreme Court added that:
(7)In this instance, the application was unopposed by both Mr Ndege for the 1st respondent and Mr Mohamed for the petitioner; and although no brief was attached to the application, sufficient detail has been set out in the grounds set out on the face of the application and the supporting affidavit to enable the court appreciate the nature and extent of participation intended by the applicant as well as the wealth of its experience and expertise in election matters. I am therefore satisfied that the application is meritorious. The same is hereby allowed and orders granted as follows:(a)That the applicant be admitted to the instant proceedings as amicus curiae;(b)That the applicant’s brief, including any information and/or evidence it may deem important and relevant to facilitate the just disposition of this matter, be filed within 7 days from the date hereof.(c)That there be no order as to costs.
8It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF MARCH 2023OLGA SEWEJUDGE