[2022] KESC 43 (KLR)

Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others (Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated)) [2022] KESC 43 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 43 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated)

MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

August 29, 2022

Being an application by the 9th respondent to strike out the names of the 3rd to 8th respondents in Petitions E004 of 2022, and E005 of 2022 and the names of the 3rd to 8th and 13th respondents in Petition E002 of 2022

Between

Raila Amolo Odinga

1st Petitioner

Martha Wangari Karua

2nd Petitioner

Peter Kirika

3rd Petitioner

David Kariuki Ngari

4th Petitioner

Youth Advocacy Africa (YAA)

5th Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Wanyonyi Wafula Chebukati

2nd Respondent

Boya Molu

3rd Respondent

Prof. Abdi Yakub Guliye

4th Respondent

Juliana Whonge Cherera

5th Respondent

Justus Nyang'aya

6th Respondent

Irene Massit

7th Respondent

William Samoei Ruto

8th Respondent

Inclusion of IEBC commissioners as respondents in a presidential election petition does not violate section 15 of the IEBC Act which insulated them from being personally liable for any acts done in good faith in execution of the IEBC’s powers.

The main issue was whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated section 15 of the IEBC Act which insulated the commissioners from being personally liable for any acts done in good faith in execution of their mandate. The Supreme Court held that section 15 of the IEBC Act could not be used as a shield to suppress evidence in a presidential election petition by IEBC commissioners.

Reported by John Ribia

Electoral Law- presidential election petition – parties to a presidential election petition – IEBC commissioners – whether IEBC commissioners could be included as respondents in their personal capacity in a presidential election petition - whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated the principle that commissioners of an independent constitutional body could not be liable for any acts done in good faith in execution of the body's powers – Independent Electoral and Boundaries Commission Act (Cap 7C) section 15. Electoral Law- presidential election petition – parties to a presidential election petition – Office of the Attorney General – whether the Office of the Attorney General was wrongfully named as a respondent in a presidential election petition - whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated the principle that commissioners of an independent constitutional body could not be liable for any acts done in good faith in execution of the body's powers – Independent Electoral and Boundaries Commission Act (Cap 7C) section 15.

Brief facts The 9th applicant (HE Dr. William Samoei Ruto) sought to strike out the names of the 3rd to 8th respondents from the presidential election petitions. The applicant contended that the respondents, being members of the 1st respondent (being Commissioners of the IEBC), an independent constitutional and corporate entity, could not be parties to the petitions. The application also sought to strike out the 13th respondent, the Office of the Attorney General, from the presidential election petition on the grounds that the respondent had no role in the petition, unless the instant court granted leave for him to be joined as a friend of the court.

Issues

Whether the inclusion of IEBC commissioners as respondents in a presidential election petition violated section 15 of the IEBC Act which insulated the commissioners from being personally liable for any acts done in good faith in execution of their mandate.

Whether the office of the Attorney General’s role in a presidential election petition was limited to being a friend of the court.

Held

The statement by the 5th to 8th respondents (4 IEBC commissioners who refused to own the presidential election results due to the “opaque nature” of the process) brought them squarely within the ambit of grievance by the petitioners. The latter could not be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the Independent Electoral and Boundaries Act as a shield would be tantamount to suppressing evidence by the applicant.

The Attorney General of the Republic of Kenya had more capacity than any other litigant in Kenya to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he did not need the aid of the 9th respondent to accomplish such a routine task.

Applications dismissed.

Orders No order as to costs.

Citations StatutesKenya Constitution of Kenya, 2010 article 138(3)(c) - (Interpreted)

Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011) section 15 - (Interpreted)

Supreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg) In general - (Cited)

AdvocatesNone mentioned

Ruling

1. William Samoei Ruto, (the applicant) has been named as the 9th respondent in Petitions E002, E004, and E005 respectively. By three separate applications all dated the August 27, 2022, he seeks to strike out firstly, the names of the 3rd to 8th respondents in Petitions E004 and E005 respectively, and secondly, the names of the 3rd to 8th and 13th respondents in Petition E002.

2. Regarding the 3rd to 8th respondents in the three petitions, the applicant submits that the said respondents, being members of the 1st respondent, an independent constitutional and corporate entity, cannot be sued in their individual capacity. In support, the applicant cites section 15 of the IEBC Act, 2011 which insulates and protects the respondents, from being personally liable for any acts done in good faith and in the execution of the 1st respondent’s powers, functions and duties.

3. As for the 13th respondent in Petition E002, the applicant submits that the said respondent has no role in this petition, unless this court grants leave for him to be joined as a Friend of the court. Further, the applicant argues that the Supreme Court (Presidential Election) Rules, 2017 do not envisage the 13th respondent as a respondent in a petition challenging the Presidential Elections.

4. We have considered the applications and written submissions in support thereof. It is not lost on us that one of the main grounds on which the three petitions are based is that the 1st respondent of which the 3rd to 8th are members, failed to perform its functions under article 138(3)(c) of the Constitution. This failure as claimed by the petitioners, was occasioned by the exclusion of the 5th to 8th respondents from the verification and tallying process by the 2nd respondent.

5. This claim is based on a highly publicized Press statement by these very respondents disowning the declaration of the Presidential Election results by the 2nd respondent. This statement by the four respondents brings them squarely within the ambit of grievance by the petitioners. The latter cannot be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence by the applicant.

6. Regarding the application to strike out the 13th respondent from Petition E002, it is also not lost on us that the said respondent is the Attorney General of the Republic of Kenya. The holder of such an office, has more capacity than any other litigant in this Country to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he does not need the aid of the 9th respondent to accomplish such a routine task.

Accordingly, We Make the Following Orders:i.The three applications by the 9th respondent dated August 27, 2022 and filed on August 28, 2022, are hereby dismissed.ii.No Orders as to Costs.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST, 2022. ………………………………………M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT………………………………………M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT………………………………………NJOKI NDUNGUJUSTICE OF THE SUPREME COURT………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURT………………………………………W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA