[2022] KESC 48 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition E005 of 2022) [2022] KESC 48 (KLR) (29 August 2022) (Ruling)

Neutral citation: [2022] KESC 48 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Presidential Election Petition E005 of 2022

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

August 29, 2022

Between

Raila Odinga

1st Petitioner

Martha Wangari Karua

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Wanyonyi Wafula Chebukati

2nd Respondent

Boya Molu

3rd Respondent

Abdi Yakub Guliye

4th Respondent

Julianna Whonge Cherera

5th Respondent

Justus Nyangaya

6th Respondent

Francis Wanderi

7th Respondent

Irene Massit

8th Respondent

William Samoei Ruto

9th Respondent

Filing of further affidavits by applicants in the Presidential Election Petition allowed in response to a petition.

The applicants sought the admission of their replying affidavits and argued that some of the respondents, in their replying affidavits, had alleged that they attended a meeting with a delegation from the National Security Advisory Committee (NSAC) to subvert the will of the people. The court held that it was fair and just, considering the serious nature of the allegations and implications of the same, that the applicants ought to be given the opportunity to be heard regarding the same.

Reported by Kakai Toili

Electoral Law– presidential election petitions – filing of further affidavits in presidential election petitions - where an application was made for the filing of further affidavits by an applicant seeking to respond to serious allegations made by other parties to the suit against them - what were the circumstances where the filing of further or other affidavits could be allowed in a presidential election petition - Supreme Court (Presidential Election Petition) Rules, 2017, rule 17. Law of Evidence- affidavits - further affidavits - application to file further affidavits in the presidential election petition - whether one could file further affidavits in the presidential election petition - what were the circumstances where the filing of further or other affidavits could be allowed in a presidential election petition - Supreme Court (Presidential Election Petition) Rules, 2017, rule 17.

Brief facts The application sought for the court to admit on record the replying affidavits of the 5th to 8th respondents being members of the 1st respondent. The applicants argued that the 2nd, 3rd and 4th respondents in their replying affidavits had alleged that all the members of the 1st respondent attended a meeting with a delegation from the National Security Advisory Committee (NSAC) to subvert the will of the people. It was further contended that the 5th to 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. It was contended that unless the 5th to 8th respondents were allowed to file responses to the allegations, they would suffer great prejudice as the court would make adverse findings without hearing the affected respondents.

Issues What were the circumstances in which the filing of further or other affidavits could be allowed in a presidential election petition?

Held

Under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 there was no provision to allow any further or other affidavits of the instant nature. However, there were special circumstances where facts or allegations were made by the 2nd, 3rd and 4th respondents in their response to the petition. Those events took place during the pendency of the instant matter. It would only be fair and just, considering the serious nature of the allegations and implications of the same, that the 5th, 6th, 7th and 8th respondents ought to be given the opportunity to be heard regarding the same. That was an exceptional circumstance considering all aspects of the matter.

Application allowed with no order as to costs.

Citations CasesNone referred toStatutesKenya Supreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011) rule 4(2); 17 - (Interpreted)

Supreme Court Act, 2011 (Act No 7 of 2011) section 3A - (Interpreted)

AdvocatesNone mentioned

Ruling

[1]Upon perusing the notice of motion application dated August 28, 2022 and filed on even date by the 5th respondent, anchored on rule 17 of the Supreme Court (Presidential Election) Rules, 2017 seeking the following orders;a)That this honourable court be pleased to admit on record the replying affidavits of Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Masit, being members of the 1st respondent, attached hereto.b)That the costs of this application be provided for.

[2]Upon considering the grounds on the face of the application, the supporting affidavit sworn on August 28, 2022 by Juliana Cherera and filed on even date. It is the applicants’ argument that the 2nd, 3rd and 4th respondents in their replying affidavits have alleged that all the members of IEBC attended a meeting with a delegation from the National Security Advisory Committee (the NSAC) comprising Dr Kennedy Kihara, the Principal Administrative Secretary in the Office of the President, Mr Kennedy Ogeto, the Solicitor General, Mr Hillary Mutyambai, the Inspector General of Police and Lieutenant General Fredrick Ogolla, Vice Chair of the Kenya Defence Forces, to subvert the will of the people. It is further contended that the 5th, 6th, 7th and 8th respondents agreed with the proposal from the NSAC delegation to alter the results of the presidential election in favour of one candidate against another. To contending that unless the 5th, 6th, 7th and 8th respondents are allowed to file responses to the said allegations, they will suffer great prejudice as the court will make adverse findings without hearing the affected respondents. We have also perused the further affidavit sworn on August 28, 2022 and filed on even date by the 5th respondent.We now opine as follows:

[3]We have considered the application and the given justifications for the admission of the further affidavit sworn by the 5th respondent.

[4]Under rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 there is no provision to allow any further or other affidavits of this nature. However, we have considered the special circumstances where the facts/allegations made by the 2nd, 3rd and 4th respondents are contained in their response to the petition. These events took place during the pendency of this matter. It would only be fair and just, considering the serious nature of the allegations and implications of the same, that the 5th, 6th, 7th and 8th respondents ought to be given the opportunity to be heard regarding the same.

[5]We deem this to be an exceptional circumstance considering all aspects of the matter. We hereby invoke the provisions of the Supreme Court (Presidential Election Petition) Rules, 2017 rule 4(2) as read together with section 3A of the Supreme Court Act (Act No 7 of 2011) on the inherent powers of the court, and allow the further affidavits to be admitted as applied for.

[6]Consequently, we make the following orders:a)The notice of motion dated August 28, 2022 be and is hereby allowed.b)There shall be no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST 2022………………………………………………………….M.K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT………………………………………………P.M. MWILU M.K. IBRAHIMDEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME COURT VICE PRESIDENT OF THE SUPREME COURT. …………………………………………….S.C. WANJALA NJOKI NDUNGU JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT. …………………………………………….I.LENAOLA W. OUKOJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA