[2017] KESC 36 (KLR)

[2017] KESC 36 (KLR)

The Supreme Court held that the Attorney General, by virtue of Article 156 of the Constitution and Section 7 of the Office of the Attorney General Act, is entitled to seek admission as amicus curiae in proceedings of significant public interest, such as a presidential election petition. However, the Attorney General's participation is subject to strict principles: the brief must be limited to legal arguments, must not repeat issues already determined or argued by the parties, and must avoid any appearance of partisanship. The court found that while the Attorney General's expertise and perspective on electoral law reform were valuable, permitting him to address issues previously litigated,...

Citation
[2017] KESC 36 (KLR)
Parties
Applicant: Raila Amolo Odinga; Applicant: Stephen Kalonzo Musyoka; Respondent: Independent Electoral and Boundaries Commission; Respondent: Chairperson of the Independent Electoral and Boundaries Commission; Respondent: Uhuru Muigai Kenyatta
Court
Supreme Court
Court Station
Supreme Court of Kenya
Jurisdiction
Kenya
Judgment Date
27 August 2017
Case Number
Presidential Election Petition 1 of 2017
Procedural Posture
Presidential Election Petition / Ruling on Application for Joinder as Amicus Curiae
Outcome
Application allowed in part; Attorney General admitted as amicus curiae with limitation.
Judges
DK Maraga, PM Mwilu, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola
Legal Topics
Amicus Curiae Principles, Presidential Election Petitions, Public Interest Litigation, Joinder of Parties
Source Language
English
Constitutional Law Election Petitions Amicus Curiae Principles Presidential Election Petitions Public Interest Litigation Joinder of Parties

Case Brief

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Parties

Raila Amolo Odinga

Applicant

Stephen Kalonzo Musyoka

Applicant

Independent Electoral and Boundaries Commission

Respondent

Chairperson of the Independent Electoral and Boundaries Commission

Respondent

Uhuru Muigai Kenyatta

Respondent

Procedural Posture

Presidential Election Petition / Ruling on Application for Joinder as Amicus Curiae

Legal Issues

  1. 1 What are the guiding principles applicable in determining an application to be enjoined as amicus curiae?
  2. 2 Can the Attorney General raise issues previously determined in other proceedings as amicus curiae?
  3. 3 Does the Attorney General's prior conduct or perceived partisanship affect eligibility for amicus status?

Ratio Decidendi

The Supreme Court held that the Attorney General, by virtue of Article 156 of the Constitution and Section 7 of the Office of the Attorney General Act, is entitled to seek admission as amicus curiae in proceedings of significant public interest, such as a presidential election petition. However, the Attorney General's participation is subject to strict principles: the brief must be limited to legal arguments, must not repeat issues already determined or argued by the parties, and must avoid any appearance of partisanship. The court found that while the Attorney General's expertise and perspective on electoral law reform were valuable, permitting him to address issues previously litigated,...

Court Disposition

Application allowed in part; Attorney General admitted as amicus curiae with limitation.

Orders

  • The Attorney General is admitted as amicus curiae in the proceedings.
  • The question regarding the effect of the Maina Kiai decision on the conduct of the presidential election is expunged from the amicus brief.